IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

C. P No. S-254 of 2024

 

 

Petitioner

:

Qumail Hyder @ Muhammad Chuttal Shaikh

 

 

Through Mr. Wajid Ali Shaikh, advocate

 

Respondent

:

Mst. Saba Soomro

(called absent)

 

 

 

 

Date of hearing:               05-08-2024

 

Date of Decision:             05-08-2024

 

O R D E R

 

Khadim Hussain Soomro–J. Through this petition, the petitioner/defendant has impugned the judgment dated 25.05.2024, passed by the II-Additional District Judge, Shikarpur, in Family Appeal No.03/2024, filed against the judgment dated passed 10.02.2024, passed by the learned Family Judge, Shikarpur, in Family Suit No. 190/2021, filed by the respondent/plaintiff for dissolution of marriage, maintenance, return of dowry articles. The petitioner/defendant has filed this petition with a prayer to set-aside both the judgments passed by both courts below.

2.                               The brief facts of the petition are that the petitioner/defendant and respondent/plaintiff entered into a marriage contract on June 25, 2021, with a deferred dower amount of Rs. 1,000,000/- which remains unpaid by the defendant. The parties have not had any issues from this marriage. It is further claimed that at the time of the marriage, the plaintiff's parents provided dowry articles valued at Rs. 1,200,000/- as evidenced by the attached list, receipts, photographs, and video clips; these items are currently in the possession of the defendant. Additionally, the plaint asserts that an agreement was executed stipulating that,  in case the defendant expelled the plaintiff from his residence, he would be obligated to provide her with maintenance at a rate of Rs. 10,000/- per month, support her continued education, and not impede her from visiting her parents and relatives. However, after the marriage, the defendant's conduct became harsh and cruel, subjecting the plaintiff to domestic violence and mental distress. It is alleged that the defendant failed to amend his behaviour or provide the agreed-upon maintenance despite earning over Rs. 100,000/- per month as a private contractor. Furthermore, he allegedly sold the plaintiff's jewellery and coerced her into obtaining financial support from her parents. Ultimately, the plaintiff was forced to leave his residence on July 28, 2021, with only three sets of clothing. This conduct generated animosity in the plaintiff's mind towards the defendant, leading her to conclude that continuing the marriage within the parameters set by Allah Almighty was untenable. Hence, the plaintiff has filed the suit with the following prayers.

a)    To dissolve the marriage of the plaintiff with the defendant by way of Khulla.

 

b)    To direct the defendant to hand over/return the dowry articles as per the list.

 

c)    To direct the defendant to make payment for the maintenance of the plaintiff/petitioner at the rate of Rs.20,000/- till her iddat period.

 

d)  Any better relief which this Court deems fit and proper in the circumstances of the case may also be awarded.

3.                               The trial court, after hearing the parties, decreed the Family suit with the following observations:-

"In wake of reasons quoted herein supra, suit of the plaintiff is decreed to the extent as proved with no order as to costs. As the marriage of the plaintiff has already been dissolved by way of khulla in lieu of unpaid dower amount Rs.1,000,000/- (ten lacs) vide preliminary decree dated 09-03-2022. However, plaintiff Mst. Saba is hereby awarded maintenance at the rate of Rs.20,000/- from the date of institution of this suit i.e. 20-11-2021, till completion of her iddat period, with directions to the defendant to deposit the total maintenance amount with Nazir of this Court, in favour of the plaintiff, without fail. The plaintiff is also held entitled to recover her dowry articles valuing of Rs.1,200,000/- (twelve lacs), as per the list attached. For defendant Qumail Hyder @ Muhammad Chuttal is directed to restore her or in alternative to pay the value thereof at the rate of Rs.1,200,000/-. Let such decree be prepared accordingly.:

4.                               Against that judgment, the defendant/Petitioner preferred an appeal before the District Judge Family Appeal No. 03/2024, who, after hearing the parties, dismissed the family appeal vide judgment dated 25.05.2024. Hence, the defendant/Petitioner has preferred an instant petition.

5.                               Learned Counsel for the Petitioner contends that both impugned Judgments and decree dated 10.02.2024 and 25.5.2024 passed by the Family Court and Appellate Court Shikarpur are on the basis of surmises and conjectures and without applying judicious mind; that impugned judgment and decree have been passed by the Family Court Shikarpur and learned Appellate court Shikarpur due to personal grudge nothing else; that the Petitioner filed application for recalling the Judgments and Decree, but the learned Family Judge and learned Appellate Court did not consider the application of advocate for Petitioner and illegally passed impugned Judgments and decree.; that the plaintiff/respondent has shown five witnesses out of which,  three  witnesses were examined, and the Family Judge Shikarpur decided the matter without providing an opportunity to the Petitioner/defendant and closed the side of Petitioner/defendant,  thereafter the Petitioner filed C.P. No.S-273 of 2023 before this court for seeking an opportunity to cross-examination to the Respondent, in which comments were called from the learned Family Judge Shikarpur and the matter was fixed for hearing on 04.03.2024, but during the pendency of the petition, the learned Family Judge, Shikarpur passed the impugned Judgment and Decree on 10.02.2024 without any legal justification. Hence, the impugned judgment and decree are not sustainable in the eyes of the law and, hence, liable to be set aside.

6.                               I have heard the learned Counsel for the Petitioner and pursued the material available on the record. The record reflects that on 10.09.2022, the examination-in-chief of Respondent and other witnesses was recorded. However, the Petitioner's Counsel did not cross-examine them and sought more than eighteen adjournments on the one and other grounds. On 13.6.2023, the Petitioner's side of evidence was closed; however, on 20.6.2023, the Petitioner sought to recall the order and reopen his side of cross-examination. Again, on 26.6.2023 and 12.8.2023, the Petitioner and his Counsel were called absent. However, his application for reopening the defendant's side of cross-examination was allowed on 24.08.2023. On 28.4.2023, the Petitioner /defendant cross-examined the plaintiff as well as witnesses; on 19.9.2023 and 27.9.2023, the defendant obtained adjournments and he was provided with an opportunity of last chance and final last chance; however, on 09.10.2023, the defendant/petitioner chance for cross-examination was closed. Again, the defendant/Petitioner filed an application for reopening his side of the evidence, which was dismissed on 16.10.2023.

7.                               Such lazy and indolent conduct on the part of Petitioner as discussed above is not permissible in law. The opportunity for cross-examination was given, and the Petitioner was reminded to be cautious and aware of the consequences. This was not just a final chance for cross-examination but a legally binding directive that assured the parties involved that no further delays would be allowed under any circumstances. The record reveals that more than eighteen  times, opportunities were provided to the respondents to conduct the cross-examination of the Respondent, but they failed to do so. The practice of extending numerous opportunities for leniency, subsequently followed by additional opportunities for clemency, and persisting with further opportunities for leniency erodes the integrity, credibility and trust of the judicial system. Such practices necessitate immediate cessation. In the case of  Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434), the apex court of the country  held that:

       "It will be seen that this rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."

8.                               Another case of  MUHAMMAD SULEMAN  SULFI V/S  Mst. AZRA SHAMIM, (1989 SCMR 1810) the august apex court of the country observed as under:-

 

" We on having perused the order‑sheet, the reasons for closing the Petitioner's case and the observations of the High Court with regard to conduct of the case from the Petitioner's side, are satisfied that he was afforded enough and fair opportunity of substantiating his pleas. On merits also we agree with the High Court that the Petitioner was liable to be evicted on ground of default in payment of rent. It may be mentioned here that when asked whether the Petitioner would like to place before this Court any material which he might have desired to place before the learned Rent Controller and was unable to do, the learned Counsel did not evince any interest in availing of this opportunity"

"After hearing the learned Counsel at some length on all relevant aspects of the case we do not find any justification, for interference with the impugned judgment of the High Court. Leave to appeal, therefore, is refused."

9.                               The Petitioner has invoked the constitutional jurisdiction of this Court under a writ of certiorari, which has very limited scope. However, any illegality or irregularity available on the record is to be rectified under Article 199 of the Constitution; the Counsel for the Petitioner failed to point out any material illegality or irregularities in the impugned judgments.

10.                            The constitutional jurisdiction vested in the High Court, delineated by Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is explicitly defined, and its exercise is limited to challenging appellate court judgments. This Court is solely concerned with determining whether the lower Courts exercised their powers within their jurisdiction. If a Court is vested with authority to adjudicate a matter, it is deemed competent to render a decision, regardless of its correctness or lack thereof. Even if the decision is believed to be erroneous, it does not condense its lack of legal authority. In such circumstances, the scope of judicial review under Article 199 of the Constitution was confined to cases concerning the misreading or non-reading of evidence or when the determination was made in the absence of any evidence, resulting in a miscarriage of justice. In exercising its constitutional jurisdiction, this Court cannot disturb factual findings through a reassessment of evidence or employing the jurisdiction as an ancillary for revision or appeal. Any interference with the factual determinations made by lower courts was deemed to exceed jurisdiction within the purview defined under Article 199 of the Constitution. The reliance in this regard can be placed on the recent judgment of the apex Court of the country in the case of Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another reported in 2023 SCMR 246, wherein it was held as under:- 

         

"8. The object of exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") is to foster justice, preserve rights and to right the wrong. The appraisal of evidence is primarily the function of the Trial Court and, in this case, the Family Court which has been vested with exclusive jurisdiction. In constitutional jurisdiction when the findings are based on mis-reading or non-reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken."

 

11.                            The legislative intent was to conclusively stop family litigation following its adjudication by the appellate Court. The apex Court, in the case of Arif Fareed v. Bibi Sara and others, 2023 SCMR 413, observed that High Courts usually invoke their extraordinary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, as an alternative to the appellate or revisionary jurisdiction. Subsequently, the intended objective of the statute, with regard to the prompt disposal of the cases, is often undermined and disregarded. The relevant portion of the judgment is reproduced as under:-

 

       "7. ... The legislature intended to place a full stop on the family litigation after it was decided by the appellate Court. However, we regretfully observe that the High Courts routinely exercise their extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as a substitute of appeal or revision and more often the purpose of the statute i.e., expeditious disposal of the cases is compromised and defied. No doubt, there may be certain cases where the intervention could be justified but a great number falls outside this exception. Therefore, it would be high time that the High Courts prioritize the disposal of family cases by constituting special family benches for this purpose."

12.                            The aims and objectives of Article 199 of the Constitution are to promote justice, safeguard rights, rectify any injustices or excessive exercise of jurisdiction by lower Courts, and correct procedural illegality or irregularity that might have adversely affected a case. None of the ingredients exists in the present petition.

13.                            For the foregoing reasons, the present constitution petition, having no substance and devoid of merits, is hereby dismissed in limine. These are the reasons for my short order dated 05-08-2024.

 

                     Judge