Thursday, 27 September 2018

PLJ 2018 Lahore 606


PresentMuhammad Sajid Mehmood Sethi, J.
SAJIDA BIBI and others--Petitioners
versus
ADDITIONAL DISTRICT JUDGE & others--Respondents
W.P. No. 29052 of 2016, decided on 9.11.2017.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional Petition--Muslim Family Laws Ordinance, 1961--Article 9, 10--Suit for recovery of maintenance allowance and gold ornaments--Partly decreed--Appeal--Allowed--Suit was dismissed with cost Territorial Jurisdiction--Challenge to--Where a person has a permanent dwelling at one place and also has temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at place where he has such temporary residence.                                                        [P. 609] A
Family Courts Act, 1964--
----S. 7(2)--Ordinary resides--Jurisdiction--Residence should be long in point of time--Residence of few days was enough--Family Court where wife resides, has jurisdiction qua all such matters--Normal rule has been relaxed for convenience of wife--Place of residence of wife created jurisdiction in competent Court for all types of cases mentioned in the Act.                                                                                         [P. 609] B
Mr. Abdur Rauf, Advocate for Petitioners.
Mr. Muzaffar Ali, Advocate for Respondent No. 3.
Date of hearing: 9.11.2017.
Order
Through instant petition, petitioner has assailed judgments and decrees dated 26.10.2015 and 28.06.2016, passed by learned Judge Family Court and Additional District Judge, Depalpur, respectively, with the following prayer:--
“It is, therefore, most respectfully prayed that this Writ Petition may very kindly be allowed with cost through-out while setting aside the impugned judgments and decrees dated 28.06.2016 and 26.10.2015 passed by Respondent No-1 and Respondent-2 on following terms:--
•        That the Petitioner-1 alongwith both the minors (Petitioner-2 & Petitioner-3) are entitled for recovery of monthly sum of maintenance allowance of Rs. 35000/- from Respondent-3 with effect from the date of throwing out i.e. 30.07.2009 to onward.
•        That the Petitioner-1 is entitled for recovery of 4 Tola Gold Ornaments or alternate market price in lieu thereof from Respondent-3.”
2.  Brief facts of the case are that suit filed by petitioners was party decreed by learned Judge Family Court, vide judgment and decree dated 26.10.2015, whereby claim of Petitioner No. 1 regarding recovery of maintenance allowance and gold ornaments was declined. Petitioners No. 2 & 3 were held entitled to get maintenance allowance @ Rs. 2500/- per month each from the institution of the suit till their legal entitlement with 10% annual increase. Feeling aggrieved, petitioners assailed said judgment and decree by filing appeal before learned lower Appellate Court, which was allowed vide judgment and decree dated 28.06.2016. Consequently, judgment and decree passed by learned Judge Family Court was set-aside and suit of petitioners was dismissed with costs. Hence, this constitutional petition.
3.  Learned counsel for petitioners submits that impugned decisions of learned Courts below are the result of misreading and non-reading of evidence brought on record. He adds that petitioners were residing at Tehsil Depalpur. He maintains that learned Judge Family Court at Depalpur had exclusive jurisdiction to entertain and adjudicate upon the matter and findings of learned lower Appellate Court, in this regard, are not sustainable in the eye of law. In the end, he submits that impugned judgments and decrees are not sustainable in the eye of law.
4.  Confronted with the above, learned counsel for Respondent No. 1 defends the judgment and decree rendered by learned lower Appellate Court and submits that learned counsel for petitioners has failed to point out any illegality or legal infirmity in the same, which is liable to be upheld.
5.  Heard. Available record perused.
6.  The operative of impugned appellate judgment is reproduced hereunder:--
“9. Perusal of record reveals that Plaintiff No. 1 herself appeared as PW.1 to prove her version. She filed her affidavit Ex.P1 as examination in chief in which she deposed that two years back the defendant expelled her from his house giving her physical beating and snatching her golden ornaments as well as articles of dowry. Since then she is residing in the house of her parents at Lahore. Muhammad Rafique PW.2 tendered his affidavit Ex.P2 as examination in chief in which he also stated that Plaintiff No. 1 was residing at Lahore since her expulsion from the house of defendant. On the other hand, respondent-defendant appeared as DW.1 submitted his affidavit Ex.D1 as his examination in chief and produced Rehmat Ali as DW.2. In the evidence, the version of defendant was highlighted. Learned trial Court after analyzing the evidence of the parties decreed the suit regarding maintenance allowance of Plaintiffs No. 2 and 3 and over-looked that respondent-defendant is resident of Bure-wala District Vehari. The Nikah of both the spouses was solemnized at Multan Road Lahore. Registered copy of Nikah has been tendered as Mark-B. Earlier Plaintiff No. 1 filed suit for dissolution of marriage at Yazman District Bahawalpur showing her address of Manzoor Abad, Yazman Bahawalpur. She filed the instant suit alleging therein that she was residing in the house of her parents and address was given as Chak Risalpur Sardar Hira Singh Tehsil Depalpur. As already mentioned the plaintiff and her witnesses deposed in their examination in chief Ex.P1 and Ex.P2 in clear terms that since her expulsion from the house of defendant, the Plaintiff No. 1 is residing in the house of her parents at Lahore.
Under Rule 6 West Pakistan Family Court Rules, 1965 the jurisdiction of family Court has been settled. Being advantageous Rule 6 of West Pakistan Family Court Rules, 1965 is being reproduced as under:
          The Court which shall have jurisdiction to try a suit will be that within the local limits of which:
(a)      the cause of action wholly or in part has arisen, or
(b)      where the parties reside or last resided together:
                    Provided that in suits of dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.
The perusal of above said Rule indicates that the Family Court has jurisdiction to try the suit within the local limits of which the cause of action wholly or in part arose or where the party resides or last resided together. For suit of dissolution of marriage or dower a wife may institute the same at the place where she ordinarily reside and not in any other case. The Nikah of the parties were solemnized at Lahore. The defendant is resident of Bure-Wala District Vehari. The plaintiff is residing in the house of her parents at Lahore, therefore to my mind Family Court of Depalpur had no jurisdiction to entertain the suit. The learned trial Court over looked this aspect of the case and decreed the suit in favour of Plaintiffs No. 2 and 3 illegally assuming its jurisdiction. The judgment and decree passed by learned trial Court being illegal and without jurisdiction is not sustainable which is accordingly set aside and the suit is dismissed with costs. The plaintiff is at liberty to file/institute the suit in the family Court having jurisdiction. Decree sheet be prepared accordingly.”
7.  Examination of judgment and decree rendered by learned lower Appellate Court shows that petitioners have been non-suited with the observation that permanent residence of parents of Petitioner No. 3 is at Lahore, therefore, suit was to be filed before Court at Lahore and learned Judge Family Court,Depalpur had no jurisdiction to entertain the matter. In the plaint, petitioners have specifically maintained and mentioned their residence at Chak Risladaar/Sardar Heera Singh, Tehsil Depalpur, District Okara. Respondent No. 1 in his written statement, has not raised any objection qua residential address of petitioners. Under the law, where a person has a permanent dwelling at one place and also has temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. This aspect of the matter has not been thrash out minutely by learned Appellate Court, thus, the same cannot be considered to be a well-reasoned judgment within the contemplation of the provisions of Section 24-A of the General Clauses Act, 1897, especially when maintenance allowance of the minors is involved.
8.  Needless to observe here that expression “ordinarily resides” does not necessarily mean that residence should be long in point of time. Residence of few days was enough. Family Court where the wife resides, has jurisdiction qua all such matters. Normal rule has been relaxed for convenience of wife. Place of residence of wife created jurisdiction in the competent Court for all types of cases mentioned in Section 7(2) of the Family Courts Act, 1964. Procedural technicality, if allowed to rule the choice of forum in family matters, would result in losing the benefit conferred upon a wife by Section 7(2) ibid. Reference can be made to Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others (PLD 2016 Supreme Court 613), Syed Nazim Hussain Zaidi

v. IVth Additional District Judge, Karachi and 2 others (2013 YLR 400) and Israr Ahmed v. Mst. Pukhraj Ahad(2014 CLC 1029).
9.  In view of the above, instant petition is allowed and impugned appellate decision is set aside. The matter is remitted to learned lower Appellate Court with the direction to decide the appeal filed by petitioners afresh as per law and evidence brought on record, after affording opportunity of hearing to parties, preferably within a period of thirty days from the date of receipt of certified copy of this order. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).
(M.M.R.)         Petition allowed


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