P L D 2011 Lahore 569
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Past maintenance wife's claim for---Scope---Wife, if unwilling without any lawful excuse, would not be entitled to such maintenance.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---West Pakistan Family Courts Rules, 1965, Rr. 5 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance and dowry articles---Suit decreed to extent of dissolution of marriage and maintenance of minor son, but plaint to extent of claim for dowry articles returned by Family Court for lacking territorial jurisdiction---Dismissal of appeal by Appellate Court---Validity---Suit categorized in Sched. of West Pakistan Family Courts Act, 1964 could be instituted in a court within whose local limits either cause of action wholly or in part had arisen or parties reside or resided together lastly---An omni bus suit could be filed combining therein causes of action of all suits mentioned in Sched. of West Pakistan Family Courts Act, 1964, and Family Court in such case could not divide plaint into causes of action falling within its territorial jurisdiction and those beyond its jurisdiction and return plaint in part for lacking such jurisdiction---Plaint could be returned as a whole for lacking territorial jurisdiction---Partial or piecemeal return of plaint like partial rejection of plaint was not envisaged by any Rule of West Pakistan Family Courts Rules, 1965 or provisions of the Act---Convenience of females would be an overriding consideration to disallow partial return of plaint in family suits---High Court set aside impugned judgment to extent of return of plaint with direction to Family Court to decide claim of dowry articles and maintenance for Iddat period of wife.
Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; EFU General Insurance Company pd. v. Zahid Jee Textile Mills Ltd: 2005 CLC 848 and Izhar Muhammad v. Messrs Memon Housin Services through Partner and another 2009 MLD 1378 rel.
(c) Civil Procedure Code (V of 1908)---
----O0. VII, R.11---Partial rejection of plaint---Scope---Plaint could be rejected as a whole but not in part---Principles.
A plaint cannot be rejected in part if it cannot be rejected in its entirety.
The rule against partial rejection of plaint is based on the rationale that it saves the parties from the unnecessary multiplicity of legal proceedings.
Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; EFU General Insurance Company Ltd. v. Zahid Jee Textile Mills Ltd. 2005 CLC 848 and Izhar Muhammad v. Messrs Memon Housin Services through Partner and another 2009 MLD 1378 rel.
Rana Rashid Akram Khan for Petitioner.
Syeda ADRISH VS Syed ANWAR-UL-HAQP L D 2011 Lahore 569Before Asad Munir, JSyeda ADRISH and another---PetitionersVersusSyed ANWAR-UL-HAQ and 2 others---RespondentsWrit Petition No.1525 of 2009, decided on 22/06/2011.
ORDER
ASAD MUNIR, J.---This writ petition calls into question the judgments/decrees dated 29-3-2008 and 13-9-2008, passed by the Judge Family Court, Toba Tek Singh and the Additional District Judge, Toba Tek Singh, respectively, whereby the petitioner No.1's plaint to the extent of recovery of her dowry articles has been returned and her claim for maintenance has also been dismissed.
2. Facts in brief are that the marriage between petitioner No.1 and respondent No.1 was solemnized in Lahore on 21-5-2004 whereafter a son, petitioner No.2, was born to the couple on 7-5-2005. However, the marriage broke down with the result that petitioner No.1 and petitioner No.2 on 7-11-2006 filed against respondent No.1 a suit whereby petitioner No.1 sought the dissolution of her marriage, the return of her dowry articles valued at Rs.904,001 and the recovery of maintenance for petitioners Nos. 1 and 2. Upon failure of reconciliation between the parties, the suit was on 7-7-2007 decreed by the Judge Family Court, Toba Tek Singh, to the extent of dissolution of marriage under section 10(4) of the West Pakistan Family Courts Act, 1964. On the same date i.e. 7-7-2007, the Judge Family Court framed the following issues:
(i)???????? Whether the plaintiffs are entitled to receive maintenance from the defendant, if so, at what rate and for what period? OPP
(ii)??????? Whether the plaintiff No.1 is entitled to recover dowry as per list annexed with the plaint or in alternative Rs.904,001 as prayed for? OPP
(iii)?????? Whether the defendant delivered Rs.200,000 as a prompt dOwer to the plaintiff No.1 at the time of marriage, if so, then its effect? OPD
(iv)?????? Relief
3. Oral as well as documentary evidence was produced by the petitioner but respondent No.1 did not produce any evidence and was also proceeded against ex parte vide Judge Family Court's order dated 8-3-2008. The suit was disposed of by judgment/decree dated 29-3-2008, whereby the Judge Family Court, allowed monthly maintenance of Rs.2,000 to petitioner No.2 with effect from November, 2006 with 10 per cent increase after every two years but did not grant any maintenance to petitioner No.1. As regards the petitioner's claim for the return of her dowry articles, the Judge Family Court found that he lacked territorial jurisdiction and ordered the return of the plaint for its presentation before the proper court having territorial jurisdiction. Against the judgment and decree dated 29-3-2008, the petitioners filed an appeal which was dismissed by the learned District Judge's Toba Tek Singh by his judgment/dated and decree dated 13-9-2008.
4. While challenging the aforesaid judgments/decrees, passed by the learned court below, it has been contended by the learned counsel for the petitioner that the partial return of the plaint is unlawful and is not visualized under the law including Rule 6 of the West Pakistan Family Courts Rules, 1965. It is also contended that the petitioner No.1 is entitled to maintenance while she remained in the wedlock of respondent No.1 and until the marriage was dissolved by the Family Judge on 7-7-2007.
5. Notices were issued to the respondent No.1 through ordinary modes as well as through a citation published in daily Nawa-i-Waqt but appearance was not entered by him or upon his behalf with the result that by this Court's order dated 24-11-2010, ex parte proceedings were ordered against respondent No.1.
6. I have heard the learned counsel and have also with his assistance gone through the available record. I have no reason to disagree with the concurrent findings of the courts below that the petitioner is not entitled to any past maintenance for not being a willing wife without any lawful excuse. However, there is no discussion or explanation in the impugned judgments as to why petitioner No.1 is not entitled to any maintenance for the iddat period.
7. The important issue involved in this case is the legality of the impugned judgments with regard to the return of the plaint in respect of and to the extent of the claim of dowry articles made therein. It would be right to say that a part of the plaint has been returned on the ground of lack of territorial jurisdiction as other claims in the plaint for the dissolution of marriage and the recovery of maintenance have been found by the Family Court to be within its territorial jurisdiction.
8. Under section 5 of the West Pakistan Family Courts Act, 1964, read with its' Schedule, the family suits have been categorized as suits for (i) dissolution of marriage (ii) recovery of dower, (iii) recovery of maintenance (iv) restitution of conjugal rights (v) custody of children (vi) guardianship (vii) jactitation of marriage and (viii) recovery of personal property and belongings of a wife. Under Rule 6 of the West Pakistan Family Court Rules, 1965, any of the aforesaid family suits can be filed in a court within whose local limits the cause of action wholly and in part has arisen or the parties reside or have last resided together. In the case of suits for dissolution of marriage and recovery of dower, the proviso to Rule 6 gives additional choice to a wife to file such suits within the local limits of the court where she ordinarily resides. Obviously, the proviso to Rule 6 does not apply to suits other than those for the dissolution of marriage or for the recovery of dower.
9. There is no prohibition against the joinder of causes of action under the West Pakistan Family Courts Act, 1964. Resultantly, a wife can file an omni bus suit wherein she can combine her causes of action of dissolution of marriage, maintenance, recovery of dower, dowry and personal property and custody or guardianship of children. Likewise, a husband can, in the same snit, seek restitution of conjugal rights or jactitation of marriage along with custody and guardianship of the children. In such an event, a Family Court cannot divide the plaint into causes of action that fall within its territorial jurisdiction and those which fall beyond it nor can the Family Court split the -plaint to separate and return a part of the plaint for lack of territorial jurisdiction. In ease of lack of jurisdiction, a plaint can only be returned as whole. It is also so provided under Rule 5 of the West Pakistan Family Court Rules, 1965, which does not envisage any piecemeal or partial return of the plaint.
10. It is settled law that 'a plaint cannot be rejected in part if it cannot be rejected in its entirety. If any authority be needed in support of this proposition, reference may be made to Atta Ullah and 6 others v., Sanaullah and 5 others (PLD 2009 Karachi 38) and EFU General Insurance Company Ltd. v. Zahid Jee Textile Mills Ltd. (2005 CLC 848). In Izhar Muhammad v. Messrs Memon Housing Services through Partner and another (2009 MLD 1378), it was held that "plaint could only be rejected where all the reliefs claimed by the plaintiff were barred by any law, however where some of the reliefs claimed are barred, the plaint could not be rejected as a plaint could only be rejected as a whole and not in piecemeal". The rule against partial rejection of plaint is based on the rationale that it saves the parties from the unnecessary multiplicity of legal proceedings. There is no reason not to apply the rationale of this rule to the return of plaint by disallowing its partial return particularly in the cases of family suits where the convenience of females is an overriding consideration.
11. In the instant case, the Judge Family Court, Toba Tek Singh, has found petitioner No.1's claim/cause of action for dissolution of marriage and maintenance to be within his territorial jurisdiction but has split the plaint and returned the plaint in part in respect of petitioner's claim for dowry which has been found to be beyond his territorial jurisdiction. As discussed above, the partial return of the plaint like the partial rejection of plaint is not contemplated under the law including the provisions of the West Pakistan Family Courts Act, 1964, or the Rules framed thereunder.
12. For the foregoing reasons, the impugned judgments are declared illegal and are set aside to the extent of return of plaint in respect of petitioner No.1's claim for dowry articles as well as her claim for maintenance for the iddat period with the direction to the learned Judge Family Court, Toba Tek Singh, to adjudicate upon these claims in accordance with law.
S.A.K./A-163/L?????????????????????????????????????????????????????????????????????????????????? Petition accepted.
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