Fault in stating said term against Column No. 20 instead of Column No. 16 would be attributed not to any of the parties but to official who under the law was enjoined to fill up said document-­ Even in Column 20, word "Mehr" is very much there-

 PLJ 2004 Lahore 280

(i) Duty of Court-

—Courts ought not to go by the form but substance of pleadings and further
to read evidence properly based on the same-Mere fact that suit was in
form of specific performance ought not to have caused any hurdle in the
way of Courts to read plaint properly.                                        [P. 282] A

(ii) Specific Relief Act, 1877 (I of 1877)--

—S. 12--Civil Procedure Code (V of 1908), S. 115-Evidentiary value of entries in 'Nikahnama'-'Nikahnama' is deemed to be a public document whereby in consideration of marriage respondent, had transferred land in question, to petitioner-Fault in stating said term against Column No. 20 instead of Column No. 16 would be attributed not to any of the parties but to official who under the law was enjoined to fill up said document-­
Even in Column 20, word "Mehr" is very much there-Averment that
entry in 'Nikahnama' was fictitious stood negated in the very statement
of respondent himself in witness box-Judgments and decrees of Courts
below whereby plaintiffs suit was dismissed were set aside and plaintiffs
suit was decreed.     [Pp. 282 & 283] B

1994 SCMR1978 ref.       

Mr. Muhammad HanifSatti, Advocate for Petitioner. Mr. Shah Rasool Hamidi, Advocate for Respondent. Date of hearing : 23.9.2003.

 PLJ 2004 Lahore 280

 [Rawalpindi Bench Rawalpindi]
Present: MAULVI ANWARUL HAQ, J. Mst. BIBI SAID KHANNUM-Petitioner
versus MUHAMMAD SARWAR KHAN-Respondent
C.R. No. 211/D of 1997, heard on 23.9.2003. 

JUDGMENT

On 10.2.1993 the petitioner filed a suit against the respondent. In the plaint it was stated that she was married to the respondent on 19.11.1978 and at the time of marriage apart from a dower amount of Rs. 125/- in cash, land measuring 100 kanals mentioned in the plaint was transferred to the petitioner. The possession was delivered but a formal mutation was not got attested. It was then averred that the petitioner had been turned out of his house by the respondent who has contracted a second marriage and as also snatched the land. He was prosecuted by the petitioner and was convicted by a learned Magistrate for contracting a second marriage in violation of law and sentenced to payment of Rs. 3,000/- as fine. Regarding the land she was referred to the Civil Court. Accordingly a decree for specific performance and for possession of the land was prayed for. In his written statement the respondent admitted the factum of marriage. Regarding the entry pertaining to 100 kanals of land he stated that the entries are fictitious. Following issues were framed by the learned trial Court:-

1.                    Whether   plaintiff   is   entitled   to   specific   performance   of
impugned agreement dated 19.11.1978? OPP .

2.                    Whether this Court has got no jurisdiction? OPD

3.                    Whether suit is not maintainable in its present form? OPD

4.                    Whether suit is not properly valued for the purpose of Court
fee, if so what is proper valuation? OPD

5.                    Whether defendant is entitled to receive any special costs, if so,
how much? OPD

6.                    Whether impugned entry in nikahnama is result of forgery,
effected at the instance of plaintiffs parents? OPD

7.                    Whether plaintiff has got no cause of action? OPD

8.          Relief. Evidence of the parties was recorded. Vide judgment and decree dated 25.3.1996 the suit of the petitioner was dismissed by the learned trial Court.

A first appeal filed by the petitioner was dismissed by a learned ADJ, Attock, on 11.1.1997.

2.          Learned counsel for the petitioner contends that the evidence on record as well as the pleadings have been mis-read by both the learned Courts below. According to the learned counsel, there was no evidence that any fraud has been committed in the matter of the said entry. However the learned Courts below proceeded to dismiss the suit on hyper technical grounds. Learned counsel for the respondent,  on the other hand,  has supported the impugned judgments and decrees with reference to the reasoning  recorded  by the  learned  Courts  below  in  their  respective judgments.

3.          I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Now the Nikahnama was produced as Ex.P.l. It was proved by Nikah Registrar PW-4 with reference to his Register.  Jang Bahadar PW-1  and Noor Muhammad  PW-2 who are admittedly witnesses to the said Nikahnama. Now Muhammad Sarwar Khan petitioner appeared as DW-1 and respondent as follows in cross- examination :--

4.          It is indeed shocking that in the said admitted state of affairs the learned trial Court has proceeded to hold Issue No. 6 in the affirmative and in favour of the petitioner observing that the entry is result of forgery and interpolation.

5.     Now the learned ADJ has given his own findings. He has stated that the entry is against Column No. 20 which is meant for maintenance; that there is reference to sale and a sale has not been proved and that the description of the land is not available. To my mind the said reasonings are perverse. It is by now settled that the Courts in the country ought not to go by the form but substance of the pleadings and further to read the evidence properly based on the same. Merely the fact that the suit was in the form of specific performance ought not to have caused any hurdle in the way of learned ADJ to read the plaint properly. A bare reading of the plaint would show that the petitioner-lady had expressed that the land was transferred to her as a consideration for marriage and constituted a term of the

Nikahnama. Now this document has been held to be a public document by the Hon'ble Supreme Court of Pakistan in the case of Mst Zubaida Bibi and others v. Mst. Majidan and another (1994 SCMR 1978). The fault in stating the said term against Column No. 20 instead of Column No. 6 is attributable not to any of the parties but to the official who under the law was enjoined to fill up the said document. Be that as it may, even in Column No. 20 the word "Mehr" is very much there. The learned ADJ has thus committed and error of jurisdiction in getting himself mis-led by the said fact of entry against Column No. 20. Now so far as the description of land is concerned, it was very much there in the plaint. It was not the case of the respondent that he did not own the said land. The averment that the entry in the Nikahnama was fictitious stood negated in the very statement of the respondent himself in witness box. The learned ADJ further failed to read the statement of Jang Bahadar PW-1 who was confroii'ed in cross-examination and stated that the respondent owns 500/700 kanals of land in village Thatha and that he does not own land anywhere else. The document Ex.P.2, the Register Haqdaran Zamin for the year 1987-88 further confirms the description of the land. Now the learned trial Court has wondered as to why the petitioner did not file a suit while she was living with the respondent as his wife. A more perverse reasoning is yet come to my notice. It is but evident that the need to file the suit arose in the circumstances stated in the plaint affirmed in the witness box by the plaintiff and further confirmed in the statements of the DWs that.she was turned out and the respondent contracted a second marriage. Needless to state here the well known quote "Hellhatha no fury than a woman scorned. "Having<been kicked out after 12 years of marriage, for a woman being married by the respondent again and then being deprived of the land she was given, she had no other remedy but to have recourse to the Civil Court for possession of the same which is the precise relief she claimed.

6. For all that has been stated above, this civil revision is allowed, the judgments and decree of both the learned Courts below are set aside and the suit of the petitioner is decreed for possession of the suit land against the respondent/defendant with costs throughout.

(A.A.)