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2017 Y L R 2330

[Lahore]

Before Tariq Iftikhar Ahmad, J

FATIMA RANA—Petitioner

Versus

BILAL AHMAD BHATTI and others—Respondents

W.P. No.38067 of 2016, decided on 8th December, 2016.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 distinguished.

Sami-ul-Hassan Rana for Petitioner.

ORDER

TARIQ IFTIKHAR AHMAD, J.—Petitioner filed a family suit against respondent No.1 Bilal Ahmed Bhatti on 12.03.2016 for dissolution of marriage, recovery of maintenance allowance, dowry articles and cash approximately Rs.64,65,871/-.

2. According to para 5 of the plaint, she contended that after her marriage with respondent, she started job in Canada and out of her salary received, she sent total amount Rs.40,00,000/- from time to time to respondent through Western Union. Respondent No.1 filed written statement. He simply denied receipt of any amount from the petitioner allegedly sent to him by her from Canada.

3. Learned trial Court on the basis of divergent pleadings of the parties formulated five issues. The relevant issue No.3 is reproduced here under:–

Whether the plaintiff is entitled to get recovered amount Rs.40,00,000/- sent by her to her husband through Western Union from Canada? OPP

4. At the stage of evidence, respondent No.1 filed a miscellaneous application seeking amendment in issue No.3, as through his written statement he raised question in respect of jurisdiction of Family Court to deal with said issue and proposed the following additional issue to be framed:–

3-A. Whether this Court has no jurisdiction to entertain, the suit for recovery of Rs.40,00,000/-OPP.

5. Learned trial Court accepted the application and deleted issue No.3, however, recorded the following observations:–

“Plaintiff/ respondent is at liberty to avail her remedy at proper forum against the said claim.”

6. Being dis-satisfied with this order/observation, the petitioner has come up in writ petition stating that while passing impugned order on 27.10.2016, the learned trial Court exceeded its jurisdiction and passed an order, which was not prayed for by the respondent. Further stated that according to entry No.9 in the Schedule of Family Courts Act, 1964, the petitioner as wife was claiming recovery of her personal property, however, because of wrong application of judicial mind and committing error in law, the impugned order was passed. The petitioner has sought setting aside of impugned order dated 27.10.2016 and requested that direction may be issued to learned trial Court to proceed and record evidence to decide the family suit on merit.

7. I have asked the learned counsel for the petitioner to assist me as to whether the amount of Rs.40,00,000/- is personal property of the petitioner as wife under item No.9 of the Schedule of The Family Courts Act 1964. Learned counsel urged that the said amount which was generated by the petitioner while serving in Canada, after her marriage and sent from time to time total amount Rs.40,00,000/- to respondent No.1, her husband and as such, it is nothing else but her personal property and the Family Court having jurisdiction to entertain and decide this issue i.e. issue No.3. Further stated that learned trial Court without any prayer made by respondent No.1 suo-motu deleted issue No.3, which had already been framed without any legal and procedural justification, thus, it is a case of misuse of jurisdiction vested with the said Court. Learned counsel placed reliance on judgment of Hon’ble Supreme Court of Pakistan reported as Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260).

8. To deal with proposition in hand it is appropriate to look into the relevant provision of West Pakistan Family Courts Act 1964. Its preamble reads as under:–

“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.”

9. As is settled that preamble of a Statute is incorporated to briefly mention the purposes of that Statute and plain reading of the preamble shows that Family Courts were established under the Act for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matter connected therewith.

10. Now to look into item No.9 of Schedule of the Act which reads as under:–

“Personal property and belongings of a wife”.

11. The case of the petitioner is clear that she while serving in Canada received salaries and out of it sent certain amount to the petitioner in Pakistan while having in mind the preamble which provided settlement and disposal of dispute relating to marriage and family affairs and for matter connected therewith, so to my mind all these matters are relating to marriage and the matters connected therewith. I am afraid that the contention of the petitioner that she earned herself amount while serving in Canada and the amount was sent through Western Union to her husband is a dispute relating to marriage or matters, connected therewith. Prima-facie the claim of the petitioner is of civil nature, for recovery of amount received by respondent from her. It may be added here that the procedure to secure civil right is to be dealt with under the Civil Procedure Code, 1908 by the Court of competent jurisdiction, whereas, family laws being special law has its own procedure as well as fixation of time for disposal of the same. As such, when the learned trial Court observed in the last line of impugned order while deleting issue No.3 that petitioner is at liberty to avail her remedy at proper forum against the said claim is not suffering with wrongful exercise of jurisdiction.

12. I may further observe here that Courts act are deriving jurisdiction from codified law and also on the basis of principles of natural justice. In my view, the learned trial Court while acting under the principle of equity, natural justice and good conscious correctly observed and ‘advise’ to the petitioner to avail her remedy at proper forum against her claim for recovery of the amount. Learned counsel for the petitioner placed reliance on the judgment of Hon’ble Supreme Court of Pakistan reported as Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260). In my humble view facts of matter before Apex Court were different as compared to present petition. Leave to appeal to the appellant in said matter was granted by the Apex Court to consider whether condition of payment of Rs.1,00,000/- by the husband in the event of giving divorce to the wife as stipulated in Nikah Nama was a valid one and the amount so fixed was recoverable by filing a suit before Family Court. However, it is not case of the present petitioner as she is not claiming recovery of the amount on the basis of terms and conditions of Nikah Nama between her and respondent No.1.

13. The outcome of the discussion is that I do not observe any defect in the impugned order to exercise interference by this-Court, resultantly, this petition stands dismissed.

MQ/F-2/L Petition dismissed.

 

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