ORDER SHEET

IN THE HIGH COURT OF SINDH,

  CIRCUIT COURT, HYDERABAD.

Constitution Petition No.S-877 of 2012.

DATE                        ORDER WITH SIGNATURE OF JUDGE

 

1.    FOR ORDER ON OFFICE OBJECTION AS FLAGGED.

2.    FOR KATCHA PESHI.

3.    FOR HEARING OF MA NO.10587 OF 2012.

4.    FOR HEARING OF MA NO.6400 OF 2013.

5.    FOR HEARING OF MA NO.6401 OF 2013.

 

 

Date of hearing:       21.10.2013.

Date of decision:      21.10.2013

           

Mr. Shoukat Ali Pathan, Advocate for petitioner.

Mr. Mukhtiar Ahmed Khanzada, State Counsel.

=  

           

 

SALAHUDDIN PANHWAR, J.- Through instant petition, the petitioner Muhammad Zahid Siddique has called in question the legality of judgment and decree dated 28th November, 2012 and 30th November, 2012, passed by learned 6th Additional District Judge, Hyderabad, whereby allowed the appeal of the respondent.

2.         Facts, in brief, are that petitioner filed a suit for recovery of Gold Ornaments and cash of Rs.15,000/- against respondent before Family Court, Hyderabad wherein pleading that he contracted marriage with respondent; at the time of marriage his parents and other relatives had given two sets of gold apart from bangles, golden rings, ear rings and other gold ornaments valuing Rs.500,000/-. Pleading other facts, the petitioner maintained in his suit that due to differences, petitioner divorced the defendant on 10.8.2010. At the time of Talaq the respondent and her parents had promised to return the entire gold ornaments and cash of Rs.15,000/- but they failed to do so, hence he filed the instant suit.

3.         The record further shows that such suit of the petitioner was ex-parte decreed by Family Court by judgment dated 18.4.2011. Petitioner then filed Execution Application and in response thereof respondent appeared and filed an application for setting aside ex-parte judgment and decree but same was declined through order dated 04.8.2012. Against such order the respondent preferred an appeal before learned District Judge, Hyderabad; which was entrusted to 6th Additional District Judge, Hyderabad; after hearing the parties same was allowed while holding that family Court was not competent to entertain the suit.

4.         Learned counsel for petitioner has, inter alia, contended that suit of the petitioner was rightly filed before the Family Court Judge because Part-1 of the Schedule of the Family Court Act, provides such remedy. The learned appellate Court Judge has committed serious illegality, while accepting the appeal of the respondent No.1, with the plea that the suit of the petitioner was not maintainable before Family Court Judge.

5.         The petitioner has been insisting and interpreting the item mentioned at Sr.No.8 and 9 of the Schedule (Part-I) of the West Pakistan Family Courts Act, 1964 for making his cause (suit) maintainable. Therefore, it would be in all fairness to refer such items which are :-

            “8. Dowry

            9. Personal property and belongings of a wife.”

 

6.         Before responding to the issue, involved, it would be in all fairness to make it clear that item mentioned at Sr.No.9 of the Schedule (Part-I) of the West Pakistan Family Court Act,1964 does not mean that the phrase personal property and belongings of a wife shall include those properties which she inherited or received / obtained from any other independent source but it shall include only those properties and belongings which she (a wife) has received /obtained in relation to the marriage and it shall not give a right to a wife to file a suit before Family Court in respect of her claim towards personal property and belongings which she has received or claimed to have received from any other source because all the provisions of an enactment are to be read in aid of its objective and pre-amble. The preamble of the West Pakistan Family Court Act, 1964 will make things further clear which is reproduced hereunder:-

“Preamble—Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith”

 

7.         Reverting, to merits of the case, it is manifest that in the instant matter the petitioner filed a suit for recovery of Gold Ornaments and cash of Rs.15,000/- while perusal of the pleadings of the petitioner would make it clear that he nowhere claimed the gold ornaments or cash to be dowry or personal property and belongings of the respondent rather his claim is a cause of action to file the instant suit on the alleged fact that at the time of TALAQ by him parents of the respondent and respondent herself had promised to return the gold ornaments, whereas regarding cash he alleged that it was taken away by respondent while leaving the house of the petitioner. Such assertions on part of the petitioner himself are sufficient to bring the cause out of the jurisdiction of Family Court, because the cause, in fact, arose to petitioner when the parents of the respondent did not honour alleged promise of returning gold ornaments. The prayer clause (s) of the suit of the petitioner would make things further clear hence the same are reproduced hereunder :-

a)   This Honourable court may be pleased to direct the defendant to return plaintiff the entire gold ornaments including 2 sets, bangles, rings, ear rings, necklace or its market value that is about a sum of Rs.500,000/- which is the property of plaintiff;

 

b)   That this honourable court may be pleased to direct the defendant to pay a sum of Rs.15,000/- to plaintiff which he had taken without his permission

 

8.         The reading of the prayer clause (s) of the suit of the petitioner have made it no more ambiguous that it is not a dispute relating to marriage, family affair or for matters connected therewith but it appears that same are come out of alleged breach of the promise, allegedly made by the respondent or her parents for returning the gold ornaments, therefore, such a cause / dispute shall not fall within meaning of the items, mentioned in the Schedule (Part-I) of the West Pakistan Family Court Act, 1964.

9.         Worth to add here that the item No.9 mentioned in the Schedule (Part-I) of the West Pakistan Family Court Act, 1964 would show that legislature has deliberately and intentionally confined the jurisdiction of the Family Court in respect of item No.9 by deliberate mentioning of the words ‘a wife’ therefore, this has to be read as such else the legislatures would not have confined it by the words ‘a wife’ or would have added something to give jurisdiction with Family Court (s) in respect of claims of ‘a husband’ regarding his personal property and belonging. This also goes to suggest that a husband has no right to file a suit under item No.9 of the Schedule (Part-I) of the West Pakistan Family Court Act, 1964.

10.       In view of what has been discussed above, I am of the firm view that learned appellate Court has not committed any illegality in recording the judgment and decree whereby setting aside the judgment and decree passed by Family Court. Accordingly, the petition is dismissed.

11.       While parting with the judgment, it is significant to reiterate that the jurisdiction of the court or a forum is determined on basis of cause of action and relief (s) sought and not at whims and wishes of a party because it is the law alone which vests jurisdiction therefore, even in ex-parte matter the Court (s) are not supposed to decree the suit (s) but should necessarily examine that:

i)             Whether the suit is competent and maintainable one?;

ii)            Whether the Court has the jurisdiction?

iii)          Whether the relief (s) can legally be granted?

            Because these are the legal issues which the court should examine even in absence of defence else mechanical manner in decreeing the ex-parte matter may result in making the Court (s) a tool to obtain what one cannot obtain legally.

 

                                                                                                            JUDGE