---S. 17-A--Right of defend suit--Section 17-A makes right of any defendant to defend suit against him, otherwise guaranteed to him, conditional upon his payment of interim maintenance already fixed by Court.

 PLJ 2022 Lahore 744

Family Court Act, 1964 (XXXV of 1964)--

----S. 17-A--Muslim Family Law Ordinance, (VIII of 1961), Ss. 8 & 9--Maintenance allowance of minor--Suit for dissolution of marriage--Decreed--Appeal--Accepted Conditionally--Non-payment of maintenance allowance--Right to defend suit was struck-off--Financial position--Determined liability--Petitioner failed to abide by terms of judgment passed by appellate Court, trial Court as also appellate Court in second round, rightly found against petitioner and both judgments are, unexceptionable--Petitioner has not appended any document with this petition that he was incapacitated to deposit outstanding liability in question--Appeal of petitioner on condition of payment of outstanding interim--It is evident from petitioner’s bank statement that each month an amount in excess of Rs. 1,30,000/- is deposited in his account by way of salary, a huge amount of money was deposited in his bank account between 26.4.2021 to 31.12.2021 from different sources and it is not as if petitioner is a pauper or not in a comfortable financial position to look after and provide sustenance to his own daughters--The petitioner did not intend to pay outstanding maintenance but merely agreed to pay same to get judgment & decree dated 07.02.2022 reversed and only prolong litigation--Petitioner is not acquainted with age-old saying “no other love in world is like that of love of a father for his girl”--Moreover, “and clothing and maintenance must be borne by father in a fair manner’ (Al-Baqarah, 233).          [Pp. 748, 749, 751 & 753] A, B, D, G & H

Family Court Act, 1964 (XXXV of 1964)--

----S. 17-A--Fail to pay interim maintenance allowance-- Section 17(A) of West Pakistan Family Courts Act, 1964 provides that a family Court shall decree suit for maintenance straightaway if a defendant fails to pay interim maintenance so fixed.                                                                                [P. 749] C

Family Court Act, 1964 (XXXV of 1964)--

----S. 17-A--Discretion and obligation--The discretion bestowed on Family Courts was converted into an obligation and use of word “shall" repeatedly reflecting in current statutory provision leaves no room for Family Courts to either not fix interim maintenance allowance or to allow any defendant to continue defending suit without first making payment of interim maintenance.                                                       [P. 751] E

Family Court Act, 1964 (XXXV of 1964)--

----S. 17-A--Right of defend suit--Section 17-A makes right of any defendant to defend suit against him, otherwise guaranteed to him, conditional upon his payment of interim maintenance already fixed by Court.  [P. 752] F

Mr. Shahzad Saleem Khawaja, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing 5.7.2022.

 PLJ 2022 Lahore 744
Present: Muhammad Shan Gul, J.
MUHAMMAD NAVEED AKHTAR--Petitioner
versus
Mst. GHAZALA BATOOL, etc.--Respondents
W.P. No. 43023 of 2022, heard on 5.7.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

2. The petitioner has laid challenge to a judgment and decree dated 26.4.2022 passed by a learned Judge Family Court whereby his right to defend the suit filed by Respondent No. 1 has been struck-off and the suit of Respondent No. 1, only to the extent of recovery of maintenance, has been decreed. Likewise, a challenge has also been laid to a judgment and decree dated 22.6.2022 whereby an appeal filed by the petitioner against the judgment and decree dated 26.4.2022 has been dismissed as well.

3. Facts in a nub are that a suit for recovery of maintenance allowance and dissolution of marriage was filed by Respondent No. 1 Ghazala Batool against the petitioner. Maintenance allowance for minors Ayesha and Fajar Fatima i.e. Respondents No. 2 and 3 in the present petition was also prayed for.

4. The petitioner submitted a written statement. However, the suit filed by Respondent No. 1 to the extent of dissolution of marriage was decreed on 06.12.2021 and marriage was dissolved on the basis of Khula. Interim maintenance allowance of minors i.e. Respondents No. 2 and 3 was fixed @ Rs. 10,000/- per month per head from the date of institution of suit.

5. The petitioner failed to adhere to the payment schedule and, therefore, his right to defend the suit was struck-off under Section 17(A) of the West Pakistan Family Courts Act, 1964 vide order dated 07.2.2022 and he was ordered to pay maintenance allowance to his minor daughters @ Rs. 20,000/- per month per head from the date of institution of suit till their legal entitlement. The petitioner was, likewise, saddled with the responsibility to pay Rs. 50,000/- to Respondent No. 1 on account of dues of maintenance for the period of Iddat only.

6. This was brought under challenge by the petitioner by means of an appeal and on 25.3.2022 a learned Addl. District Judge, Pir Mahal accepted the appeal and ordered for the payment of entire outstanding interim maintenance allowance within a period of one month. The petitioner again failed to cough up the payment of maintenance allowance and the trial Court was left with no choice, since it was bound by the order passed by the appellate Court, and again the right of the petitioner to defend the suit was struck-off on 26.4.2022 and suit of the respondents to the extent of recovery of maintenance allowance was decreed in terms of earlier judgment and decree dated 07.2.2022.

7. This prompted the petitioner to approach the appellate Court again and the petitioner filed an appeal which was dismissed on 22.6.2022 and against which the petitioner has now approached this Court.

8. It was held by the appellate Court in its judgment dated 22.6.2022 that the petitioner could not make payment of outstanding maintenance allowance despite having been given adequate opportunity by the appellate Court in the first round. It was also highlighted during the course of proceedings in appeal that the petitioner was contumaciously trying to avoid the payment of interim maintenance allowance because even in the proceedings initiated for execution of the decree he did not appear voluntarily when he was summoned by ordinary means and rather his appearance before the executing Court was only brought about by means of arrest. So much for the willingness of the petitioner to abide by the decree!

9. Learned counsel for the petitioner submits that the judgments and decrees under challenge are harsh, disproportionate and unfair because the petitioner's right to defend the suit has been struck-off in an unfair manner.

10. Heard. Record perused.

11. In the first round of litigation the petitioner failed to provide interim maintenance allowance to the minors as also to his former wife and his right to defend the suit for maintenance (only) was struck-off on 07.2.2022 by a learned Judge Family Court under Section 17(A) of the West Pakistan Family Courts Act, 1964 and he was directed to pay Rs. 20,000/- per month per head to the minors till their legal entitlement as also pay Rs. 50,000/- in lump sum only for Iddat period to his former wife as maintenance. This prompted the petitioner to file an appeal which was accepted on 25.3.2022. Order dated 25.3.2022 reads as follows:

“Consequently, the same is hereby set-aside however subject to clearance of all outstanding interim maintenance as fixed by the trial Court on 06.12.2021, within one month of the date of this order, failing which the trial Court may again strike out the defence of the defendant/present appellant.”

12. From a perusal of the order-sheet of the trial Court appended with this petition it is clear that in the second round the matter was initially fixed for hearing on 09.4.2022 and on which date counsel for both parties were present and in their presence the next date i.e. 26.4.2022 was fixed for the purpose of provision of outstanding dues of maintenance and since the one month time period fixed by the lower appellate Court expired on the said date i.e. 26.4.2022. However, surprisingly, on 26.4.2022 no one appeared on behalf of the petitioner and hence there was no deposit of the outstanding maintenance allowance amount and which meant that the order passed by the appellate Court and on which the petitioner based his case was flouted with impunity. Hence on 26.4.2022, on account of the contumacious non-cooperative conduct of the petitioner, his right to defend the suit was struck-off again and the suit of the respondents only to the extent of maintenance was decreed in terms of earlier judgment and decree dated 07.2.2022 and the petitioner was directed to pay the outstanding maintenance allowance as decreed.

13. It is indeed interesting to note that the trial Court had the benefit of having before it the bank statement of the petitioner which showed his salary to be around Rs. 1,30,000/- per month which was being deposited in his account regularly each month. That, likewise, a huge amount of money i.e. Rs. 78,34,000/- was also credited into the account of the petitioner from 26.4.2021 to 31.12.2021 and which clearly revealed that the petitioner is a man of means and in a comfortable financial position to provide sustenance to his own daughters. Therefore, it is not as if the trial Court has shot in the dark and it is only after being convinced about the comfortable financial position and worth of the petitioner that the trial Court fixed the amount of maintenance as Rs. 20,000/- per month per head for two minor daughters of the petitioner.

14. It is also obvious that on 26.4.2022 i.e. date fixed by the trial Court (since the one month period expired on the said date) no one appeared and hence no deposit of outstanding liability of maintenance was made and, therefore, the defence of the petitioner was rightly struck-off. Since the judgment of the appellate Court dated 25.3.2022 in the first round provided a foothold to the petitioner to go back to the trial Court and defend the suit and mandated him to deposit the outstanding dues within one month and since this part of the judgment was of the essence and since the petitioner failed to abide by it he cannot be allowed to approbate and reprobate and at the same time, Court and rely on one portion of the judgment and resile from and ignore, another portion of the same judgment.

15. Since the petitioner failed to abide by the terms of the judgment passed by the appellate Court, the trial Court as also the appellate Court in the second round, rightly found against the petitioner and both judgments are, therefore, unexceptionable. Since the trial Court was bound by the judgment of the appellate Court, it had no option but to do as it has done. Likewise, the appellate Court also noted in the second round that the petitioner had failed to honour the judgment passed by the appellate Court in the first round and hence the trial Court had rightly struck-off his defence after providing him an opportunity on 26.4.2022 vide order dated 09.4.2022. In fact, it was ordered by the lower appellate Court in its judgment dated 25.3.2022 that in case the petitioner did not make payment of outstanding maintenance allowance within one month then the trial Court was well within its rights to strike off his defence again.

16. The Hon‟ble Supreme Court of Pakistan in “Moon Enterpriseser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another” (2020 SCMR 300) has noted that if after grant of last and final opportunity right to produce defence evidence is struck-off, if the same is not forthcoming, then there is nothing illegal or irregular about it and such an order if passed after due caution cannot be interfered with.

17. The lame pretext urged by the counsel for the petitioner about the mother of the petitioner being unwell is of little significance because even if the mother of the petitioner was unwell on 26.4.2022, the petitioner had to arrange for payment of monies prior to that date and ought not have waited for the last date in this respect. Even otherwise, the petitioner was not indisposed or incapacitated himself and there were many avenues available to him for arranging and depositing the payment in question. The appellate Court has rightly noted that no record whatsoever was even sought to be produced before the appellate Court establishing such serious ailment of the mother of the petitioner which could support the incapacity of the petitioner in depositing the amount of monies that he was so ordered to deposit.

18. Even here before this Court the petitioner has not appended any document with this petition which could have even remotely established the fact that he was incapacitated to deposit the outstanding liability in question. A mere prescription for certain medicines from a private Maternity Home and Laboratory does not suffice in any case!

19. Section 17(A) of the West Pakistan Family Courts Act, 1964 provides that a family Court shall decree the suit for maintenance straightaway if a defendant fails to pay interim maintenance so fixed. In the present matter the petitioner has not failed once but twice on the same count, has evidently tried to avoid and wriggle out of the liability so imposed, has been recalcitrant in honouring his commitment before the Court and has even failed to appear voluntarily in the execution proceedings where he was arrested and produced before the Court. Even otherwise, instead of one opportunity the petitioner has been granted ample opportunities to follow the law but he has failed. The petitioner cannot be allowed to abuse the process of law!

20. The learned Appellate Court vide judgment dated 25.03.2022 only allowed the appeal of the petitioner on the condition of payment of outstanding interim maintenance already fixed by the trial Court, which even otherwise, was his determined liability. The petitioner did not challenge the condition imposed by the Appellate Court and his case ought to fail merely for the reason that his default in complying with the condition imposed by the learned Appellate Court revived the judgment and decree dated 07.02.2022.

21. In “Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others” (PLD 2021 Supreme Court 761), it has been held as follows:

“10. As noted above, in the first instance, the suit of the petitioners was dismissed for non-prosecution on 28.01.2014 and was conditionally restored vide order dated 19.01.2016 on the basis of a conceding statement of the Respondents. However, such restoration was conditional upon payment of costs which were admittedly never paid by the petitioners. Further, at no stage was any application moved seeking extension of time for payment of costs. Strictly speaking and on the basis of principles of law laid down by this Court in Muhammad Arshad & Co v. Zila Council (2006 SCMR 1450), it is settled law that where revival of the suit is based upon a conditional order and such condition is not fulfilled by the Applicant, for all intents and purposes the suit does not get restored.”

22. In “Ghani-ur-Rehman v. National Accountability Bureau and others” (2015 C L C 1144), it has been held as follows:-

“11. After having held such view, the Learned Single Judge granted the conditional leave to the appellant to defend his claim against which order he filed a petition for review, however, it appears that he did not press it subsequently and resultantly the same was disposed of on 17-5-2004. The same order has attained finality having never been challenged by the appellant. By conducting himself in such a way, the appellant agreed to defend the suit conditionally and was estopped from raising the same plea subsequently without first fulfilling the condition subject to which he was granted leave to defend the suit. The failure of the appellant to comply the order had left no option with the Court but to decree the suit. ..”

23. On a different note, the petitioner has only been ordered to pay monthly maintenance allowance to his own daughters. It is evident from his bank statement that each month an amount in excess of
Rs. 1,30,000/- is deposited in his account by way of salary, a huge amount of money (nearly Rs. 80,00,000/-) was deposited in his bank account between 26.4.2021 to 31.12.2021 from different sources and it is not as if the petitioner is a pauper or not in a comfortable financial position to look after and provide sustenance to his own daughters. A paltry amount of Rs. 650/- per day per head is neither exorbitant nor fantastic in the present day world where massive price hike, sky- rocketing inflation and steep increase in prices of everyday goods have resulted in the cost of living increasing manifold.

24. It is also pertinent to highlight here that considering the hardships faced by mothers and children in getting their legal as well as religious share of maintenance, while awaiting final adjudication, Section 17-A was inserted through Family Courts (Amendment) Ordinance 2002 (LV of 2002). In its original form, the said Section 17-A empowered the Family Court to strike off the defence of the defendant and read as under:

“17A. Interim order for maintenance.--At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, where under the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”

Later through Punjab Family Courts (Amendment) Act 2015 (XI of 2015), the discretion bestowed on the Family Courts was converted into an obligation and the use of the word “shall" repeatedly reflecting in the current statutory provision leaves no room for the Family Courts to either not fix interim maintenance allowance or to allow any defendant to continue defending the suit without first making payment of interim maintenance.

“S. 17-A. Suit for maintenance.--(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case”.

25. This Court in “Muhammad Sajid v. Judge Family Court and others” (2020 CLC 1524) has already held that the word “shall” sufficiently clarifies the legislative intent and since an adverse consequence is expressly provided for defiance of an order of payment of interim maintenance, such consequence would mandatorily follow.

7. The use of the word "shall" in the amended Section
17-A of the Act whereby the word "may" has been replaced, clarifies the intention of the legislation that in case of non-compliance of order for payment of interim maintenance allowance within time fixed by the law, not only the defence is to be struck off but as a consequence thereof, the suit is to be decreed; therefore, the said provision is to be treated as mandatory in nature on the basis of the principles laid down in The Collector of Sales Tax, Gujranwala v. Super Asia Muhammad Din & Sons (2017 SCMR 1427), of course, subject to certain exceptions to be decided on case to case basis, whereas no such exception has been pointed out by the petitioner.”

26. Section 17-A makes the right of any defendant to defend the suit against him, otherwise guaranteed to him, conditional upon his payment of interim maintenance already fixed by the Court. Such condition, though not assailed by the Petitioner, has been applied strictly by the Hon‟ble Superior Courts of Pakistan consistently.

27. In “Talha Asif Taufiq v VTH Additional District Judge and 3 others” (2016 MLD 742), it has been held as follows:

“8. It may also be appreciated that from the bare reading of Section 17-A of the Act, 1964, it is manifestly clear that the right of further adjudication of the defendant is contingent subject to fulfillment of contingency of Section 17-A of the Act, in other words if the defendant desires to contest the family suit, he is required to comply with the interim order passed by the Family Court pursuant to Section 17-A of the Family Courts Act.

9.  From the above discussion, it appears that the Family Court can pass an order for payment of interim maintenance during the pendency of the suit and failure to comply with such order, can take necessary steps for penal action of closing the right of defence. The conduct of the petitioner is very much relevant in this case that since 18.12.2007 when the interim order was passed, not a single penny was deposited by him in compliance of the orders of the family Court till 04.7.2009 when his right of defence was closed.”

28. The right of any litigant to defend his cause before passage of any adverse order, as sacrosanct as it is, cannot be allowed to interfere in the dispensation of justice especially in a manner so as to endorse his repeated defiance of valid orders passed against him. The Petitioner neither challenged the order fixing the maintenance allowance nor that of the Appellate Court imposing condition of payment of interim allowance. It seems that the petitioner did not intend to pay the outstanding maintenance but merely agreed to pay the same to get the judgment & decree dated 07.02.2022 reversed and only prolong the litigation. Coming to his aid will reverse centuries old jurisprudence i.e. Ex turpi causa non oritur actio (from a dishonorable cause an action does not arise).

29. In “Muhammad Tariq and 6 others v. The State and another” (2020 P.Cr.LJ 1315), it has been held as follows:

“6. The concept of fair trial is central to the administration of justice. The right to cross-examine witnesses is a component of the right to a fair trial and is considered to be "the greatest legal engine ever invented for the discovery of truth ……

14. Admittedly, there is no provision in the Criminal Procedure Code, 1898, which specifically empowers the trial Court to guillotine the accused's right of cross-examination. However, this does not mean that he can abuse the process of law with impunity and take the Court hostage.”

30. The social, legal and religious responsibilities of the petitioner also bind him to support his own biological daughters, provide for their maintenance and do so in a good and respectable way. It seems that the petitioner is not acquainted with the age-old saying “no other love in the world is like that of the love of a father for his girl”. Moreover, “and clothing and maintenance must be borne by the father in a fair manner’ (Al-Baqarah, 233).

31. Seen from whatever angle the petition in question merits to be dismissed since judgments under challenge are unexceptionable, therefore, this petition is dismissed.

(J.K.)   Petition dismissed

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---Ss. 9 & 10--Suit for recovery of maintenance allowance, delivery charges and dowry articles--Suit was partially decreed-

 PLJ 2022 Lahore 815

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 9 & 10--Suit for recovery of maintenance allowance, delivery charges and dowry articles--Suit was partially decreed--Concurrent findings--Financial status of respondent--Challenge to--In cross-examination Petitioner No. 1 had admitted that Ali Hassan minor was born in a hospital through a normal delivery, suit to extent of recovery of delivery expenses was rightly dismissed by Courts below--Petitioner No. 1 admitted in her cross-examination that there was no proof with her regarding financial income of Respondent No. 1--In circumstances, Courts below decreed suit--Courts below have concurrently fixed maintenance allowance after giving due consideration to requirements of minor and by taking into account financial status of Respondent No. 1--Concurrent findings of facts recorded by Courts below do not suffer from any illegality, infirmity or perversity, which could convince to interfere in same while exercising constitutional jurisdiction of this Court--In case petitioners think rate of maintenance at lower side, they can move application before trial Court which is empowered to increase same after having considered financial status of Respondent No. 1--If maintenance allowance is fixed without considering financial status of person, who has been burdened with such future financial liability can file application for re-fixation of maintenance allowance in view of financial status of person is also entertainable under same analogy--Petition dismissed.

                                                              [Pp. 817 & 818] A, B, C, E & F

Family Courts Act, 1964 (XXXV of 1964)--

----S. 5--Jurisdiction--Under provision of section 5 of Family Courts Act, Family Court is vested with exclusive jurisdiction to entertain and adjudicate upon matter specified in schedule. [P. 818] D

M/s. S.M. Zeeshan Mirza, Rana Muhammad Majid, Zaheer Abbas, Tahir Mahmood Mughal and Naveed Khalid Rana, Advocates for petitioners.

Nemo for Respondent No. 1.

Date of hearing: 10.1.2022.

 PLJ 2022 Lahore 815
Present: Safdar Saleem Shahid, J.
SAMIA ANWAR etc.--Petitioners
versus
NASIR HUSSAIN etc.--Respondents
W.P. No. 32224 of 2015, decided on 10.1.2022.

Order

This petition is directed against concurrent judgments and decrees dated 23.01.2015 and 04.05.2015 passed by the learned Judge Family Court and learned Additional District Judge, Gujrat.

2. Brief facts necessary for decision of the instant petition are that the petitioners filed a suit for recovery of maintenance allowance, delivery charges and dowry articles, alleging that Petitioner No. 1 was married with Respondent No. 1 on 23.07.2009 but behavior of Respondent No. 1 remained cruel and ultimately he ousted Petitioner No. 1 from his house in November, 2009, whereafter a son (Petitioner No. 2) was born out of the wedlock. It was claimed that Respondent No. 1 works in Dubai and also owns landed property and can easily pay maintenance allowance of Rs. 30,000/-per head per month. According to the petitioners Respondent No. 1 has pronounced divorce, but has refused to return the dowry articles given to Petitioner No. 1 by her parents at the time of marriage and has also refused to pay maintenance allowance and the delivery charges Rs. 40,000/-incurred by Petitioner No. 1. The suit was contested by Respondent No. 1 by filing written statement, wherein he alleged that Petitioner No. 1 left his house on 30.04.2013 and refused to rehabilitate as such on her demand he pronounced divorce on 20.05.2013 and that he is ready to return the dowry articles as per list attached with the written statement, which are lying with him.

3. Out of divergent pleadings of the parties, the learned trial Court framed issues, recorded evidence of the parties and after having gone through the same partially decreed the suit holding Petitioner No. 1 entitled to recover Rs. 7000/-per month as maintenance allowance from 30.04.2013 till the period of Iddat, whereas Petitioner No. 2 was held entitled to recover Rs. 7000/-per month as maintenance allowance from 30.04.2013 till his legal entitlement with the direction that the interim maintenance allowance already given shall be adjusted in his maintenance. The suit to the extent of recovery of delivery expenses was, however, dismissed, whereas to the extent of recovery of dowry articles the same was dismissed as withdrawn. Both the parties assailed the judgment by filing their respective appeals, but both the appeals were dismissed by the learned Additional District Judge.

4. Despite repeated calls no one appeared on behalf of Respondent No. 1, hence he is proceeded against ex parte. The case has been taken up for hearing with the assistance of the learned counsel for the petitioner.

5. The petitioners have filed the instant petition with the prayer that by setting aside the judgments and decrees of both the Courts below, their suit be decreed as prayed for. Matter regarding recovery of dowry articles was settled during the pendency of the suit, whereas since in her cross-examination Petitioner No. 1 had admitted that Ali Hassan minor was born in a hospital through a normal delivery, the suit to the extent of recovery of delivery expenses was rightly dismissed by the Courts below. As regards prayer for grant of maintenance allowance, Petitioner No. 1 admitted in her cross-examination that there was no proof with her regarding financial income of Respondent No. 1. In the circumstances, learned Courts below decreed the suit holding the petitioners entitled to recover the maintenance allowance at the rate of Rs. 7000/-per month each for the periods mentioned against each of them. Courts below have concurrently fixed the maintenance allowance after giving due consideration to the needs/requirements of the minor and by taking into account the financial status of Respondent No. 1. Besides, the concurrent findings of facts recorded by the Courts below do not suffer from any illegality, infirmity or perversity, which could convince to interfere in the same while exercising constitutional jurisdiction of this Court. In this regard reliance can be placed upon the case of Syed Hussain Naqvi and others vs. Mst. Begum Zakara Chatha through L.Rs. and others (2015 SCMR 1081), wherein it has been held as under:

"15. There are concurrent findings of fact recorded by the learned Courts below against the appellants. This Court in Muhammad Shafi and others v. Sultan (2007 SCMR 1602) while relying on case-law from Indian jurisdiction as well as from the Pakistani jurisdiction has candidly held that this Court could not go behind concurrent findings of fact "unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible." No such thing could be brought on record to warrant interference by this Court."

6. Furthermore, legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage, family affairs and the matters connected therewith. Under the provision of section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matter specified in the schedule. The matter of maintenance is at serial No. 3 in the schedule. Thus, the Family Court has exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance is granted thereafter, if the granted rate for per month allowance is insufficient and inadequate, in that case, according to scheme of law, institution of fresh suit is not necessary rather the Family Court may entertain any such application and if necessary make alteration in the rate of maintenance allowance.

7. In the circumstances, in case the petitioners think the rate of maintenance at lower side, they can move application before the learned trial Court which is empowered to increase the same after having considered financial status of Respondent No. 1. It is statutory provision, that for enhancement of maintenance allowance on behalf of the minors, the application can be filed by the person, having custody of the minors; similarly if the maintenance allowance is fixed without considering the financial status of the person, who has been burdened with such future financial liability can file application for re-fixation of maintenance allowance in view of financial status of the person is also entertainable under the same analogy.

8. The learned counsel for the petitioner has been unable to point out any exercise of excess of jurisdiction by the learned Courts

below or indeed that their decisions are perverse. The learned counsel for the petitioner has similarly been unable to point out any illegality or material irregularity having been committed by the learned Courts below. Under the circumstances this petition fails and is accordingly dismissed with no order as to costs.

(Y.A.)  Petition dismissed

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فیملی اجرا میں جائیداد یا ذیورات کی مالیت کے تعین کا طریقہ کار

 Whether without undertaking any inquisitorial exercise for ascertaining market value of a piece of land, executing court could determine and specify alternate value of the land merely on the basis of their own assumptions and without conducting any fact-finding exercise?

W.P. No. 50484 of 2022
Ahmad Khan Versus ADJ, etc.
Date of hearing:
06.10.2022

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فیملی مقدمات میں سالانہ اضافہ کب سے لاگو ھوگا

2022 MLD 1762

Sub-section (3) of Section 17A of the Family Court Act is a provision the application whereof is conditional upon failure or omission of the Family Court to prescribe the annual increase while fixing the maintenance. It is also manifest that the increase contemplated under the said provision is a mandatory one and the Court is left with no discretion in that regard. Needless to observe that any increase under the above provision is coextensive in duration with the entitlement for maintenance. Further, the increase in maintenance under Section 17A(3) of the Act is automatic in the sense that no decree is required to be passed and the same is recoverable by the executing court while enforcing the statutory obligation. The rate of annual increase in the maintenance has also been fixed by the legislature to be at ten percent each year and the base value (i.e. the maintenance fixed by the Court) to which such rate of increase applies remains constant throughout the period of application of Section 17A(3) of the Act.

Entitlement to maintenance of wife and children is not only a right recognized by law and the religion of Islam but the same is a part and parcel of rights to life and dignity, as enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Growth of children, the cost of living, change in status of the parties, change in the expenditures incurred based on needs of children are some of the factors which may provide for a fresh cause of action for the children to demand enhanced maintenance allowance. The Superior Courts of the country have ensured nourishing rights of the minors in such a manner that applications for enhancement of maintenance allowance filed subsequent to the decree have been held to be maintainable while observing that maintenance was a continuous process and a person entitled to be maintained had a right to approach the court for adequate maintenance allowance. If maintenance allowance granted by the Family Court was insufficient and inadequate, then institution of the fresh suit was held to be not necessary rather Family Court could entertain an application for enhancement of the maintenance allowance5. Therefore, there has not been any hindrance in the way of person entitled for maintenance to seek enhancement thereof in accordance with changed circumstances. However, the Provincial legislature was empathetic enough to provide an additional cushion in the form of Section 17A(3) of the Act to automatically cover the mistakes/omissions of the Court in terms of mandatory annual increase of the maintenance. The enactment of the above provision, besides making up for the judicial omission to order annual increase in the maintenance for enabling those entitled to cope up with inflation, purports to achieve the objects of reducing burden of costs, delays and toil of litigation and prevent burdening of the judicial system with adjudication in this category of cases. Section 17A(3) of the Act is, therefore, a beneficial and remedial or curative piece of legislation, which must be liberally construed.

By now, it is well settled that in the absence of any stipulation to the contrary, any change in law affecting substantive rights has prospective effect. A prospective statute operates from the date of its enactment conferring new rights. A retrospective statute, on the other hand, operates backwards and takes away or impairs vested rights acquired under existing laws. However, a statutory provision cannot be termed to have been given retrospective effect merely because it affects existing rights or because a part of the requisites for its action is drawn from a time antecedent to its passing or operation thereof is based upon the status that arose earlier.

The provision of Section 17A(3) creates a new statutory right of automatic annual increase in the maintenance fixed by the Court in cases where annual increase has not been prescribed. It does not operate backwards. The fact that statutory prerequisites under Section 17A(3) of the Act (i.e. fixation of maintenance by the Court and omission or failure of the Court to prescribe annual increase in the maintenance) may be drawn from a period prior to the enactment does not render application or operation of the said provision to be retrospective, particularly when the automatic annual increase in the maintenance takes effect from the date of enactment and not the period prior to that.

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Ss.14 & 21A Family Courts Act --- Phrase ' a decision given '-- Suit for dower accompanied with application for interim injunction -

 2022 MLD 1621

Ss.14 & 21A Family Courts Act --- Phrase ' a decision given ' --- Alternate remedy , availability of --- Suit for dower accompanied with application for interim injunction --- Petitioner / plaintiff / wife of the deceased claimed 5 - Marla house to be transferred to her as dower on ground that the same was specifically mentioned in Nikahnama ; that her husband had handed over the house to her in his lifetime and promised transfer of the same to be processed ; and that respondents / legal heirs of the deceased were adamant to dispossess her from her lawful possession --- Petitioner also filed application for interim order seeking protection of property which was dismissed by the Trial Court --- Held , that petitioner's application for interim injunction had been finally dismissed and had resulted into a final decision declaring the petitioner not entitled to interim relief during the pendency of her suit for recovery of dower --- Relief claimed by the petitioner under S.21 - A of the Family Courts Act , 1964 , for preservation / protection of property , subject matter of the suit had been finally decided against her by the impugned order --- Dismissal of the application under S.21A of the Act , refusing interim relief of protection of property during the pendency of Family suit was ' a decision given ' , which was appealable in terms of S.14 of the Act --- Without availing the said remedy , direct not maintainable.

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--S. 4--Right to inherit--Only orphaned grandchildren had been granted right to inherit from their grandparents.

 PLJ 2022 Islamabad 143

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 4--Children of predeceased son--Right to inherit--Preliminary decree--Family registration certificate--Question of whether widows of pre-deceased children of propositus could be extended benefit under Section 4 of MFLO by granting them rights of inheritance from estate of parents of their pre-deceased spouses--Intention to protection of litigation--Deprivation of respondents--Direction to--No order had been passed by this Court for requisitioning record of trial Court--Only a preliminary decree was passed--This implies that suit is still pending and commission is supposed to discharge its obligations in accordance with directions issued by trial Court in preliminary decree--Requisitioning of record without a specific order by this Court for doing so unnecessarily protracted proceedings before trial Court--Desire of appellants for fresh issues to be framed by trial Court is indicative of their intention to protract litigation with Respondents No. 1 and 2 and also to deprive respondents of possession of their respective shares in suit house--It is obligation of Court to impose exemplary costs on parties who deprive persons of their due rights of inheritance in property--Appeal dismissed. [Pp. 153 & 154] C, D, E & F

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 4--Right to inherit--Only orphaned grandchildren had been granted right to inherit from their grandparents.     [P. 147] A

Constitution of Pakistan, 1973--

----Art. 203-D(2)(b)--Decision of Federal Shariat Court--A decision of a Federal Shariat Court declaring a law or any provision thereof to be repugnant to injunctions of Islam does not take effect before disposal of an appeal preferred before Hon'ble Supreme Court against decision.               [P. 149] B

Mr. Asif Naseem Abassi, Advocate for Appellant.

Mr. Asad Hussain Ghalib, Advocate for Respondents No. 1
& 2.

Mr. M. Muzammil Hussain Shah, Advocate for Respondents No. 3 to 7, 7a(i) to (iv) & 7(c),

Mr. Daniyal Hassan, Advocate for Respondent No. 8.

Date of Hearing: 23.06.2022

 PLJ 2022 Islamabad 143
Present: Miangul Hassan Aurangzeb, J.
SHEHNAZ AKHTAR and another--Appellants
versus
Mst. ZEENAT TARIQ and others--Respondents
R.F.A. No. 619 of 2021, decided on 26.7.2022.

Judgment

Through the instant regular first appeal, the appellants, Mst. Shehnaz Akhtar (Defendant No. 1) and her son Junaid Tariq (Defendant No. 2), impugn the judgment and preliminary decree dated 30.06.2021 passed by the Court of the learned Civil Judge, West-Islamabad, whereby the suit for declaration, partition, rendition of accounts, recovery of mesne profits, and permanent injunction instituted by Respondents No. 1 and 2 was partially decreed and a local commission was appointed with the direction to visit House No. 887, Sector I-10/4, Islamabad (“the suit house”) and determine whether the same is partitionable, and, if so, what would be the mode of partition. The local commission was also required to determine the current market value of the suit house if the same was not partitionable.

2. The record shows that the suit house was owned by Major (Retd.) Raja Tariq Mehmood Abbasi (“Major Abbasi”), who died on 05.08.1992. Major Abbasi was survived by his mother, Mst. Maroof Sultana, two widows, Mst. Zeenat Tariq (Plaintiff No. 1) and Mst. Shehnaz Akhtar (Defendant No. 1), two sons, Raja Arsham Tariq (Plaintiff No. 2) and Junaid Tariq (Defendant No. 2). Plaintiff No. 2 is the son of Plaintiff No. 1 whereas Defendant No. 2 is the son of Defendant No. 1. Major Abbasi had pre-deceased his mother, Mst. Maroof Sultana, who died on 26.04.2011.

3. Defendants No. 3 to 7 are the legal heirs of Raja Sajid Mehmood Abbasi (late), who was Major Abbasi’s brother. Defendants No. 7(a) to 7(c) are Mst. Maroof Sultana’s children i.e., the siblings of Major Abbasi and Raja Sajid Mehmood Abbasi. Mst. Maroof Sultana’s third son, namely Mehmood Abbasi (Defendant No. 7(a)), had died during the pendency of the suit after which his legal heirs were impleaded as Respondents No. 7(a)(i) to (v).

4. On 27.08.2016, the plaintiffs (Mst. Zeenat Tariq and Raja Arsham Tariq) instituted a suit for declaration, partition, rendition of accounts, recovery of mesne profits and permanent injunction against Defendants No. 1 and 2 and the legal heirs of Raja Sajid Mehmood Abbasi, who were impleaded as Defendants No. 3 to 7, before the Court of the learned Civil Judge, Islamabad. In the said suit, it was pleaded inter alia that possession of the suit house was with Defendants No. 1 and 2, who had rented out a portion of it to the legal heirs of Raja Sajid Mehmood Abbasi i.e., Defendants No. 3 to 7. The plaintiffs in the said suit had inter alia sought a declaration to the effect that the plaintiffs and Defendants No. 1 and 2, as the legal heirs of Major Abbasi, were entitled to inherit their respective shares in the suit house. The plaintiffs had also sought rendition of accounts so that they could be paid their shares out of the rent paid by Defendants No. 3 to 7 to Defendants No. 1 and 2.

5. The said suit was contested by the defendants by filing written statements. From the divergent pleadings of the contesting parties, the learned trial Court framed the following issues:-

“1.      Whether the plaintiffs are entitled to get a decree for declaration, recovery of possession, mesne profit, partition of the suit property and permanent injunction as prayed for? OPP

2.       Whether the suit of the plaintiffs is not maintainable in its present form? OPD

3.       Whether the plaintiffs have not come to the court with clean hands? OPD

4.       Whether the suit of the plaintiffs is time barred? OPD

5.       Whether the suit of the plaintiffs is false, frivolous and vexatious hence, liable to be dismissed? OPD

6.       Whether the suit of the plaintiffs is bad for mis-joinder and mon-joinder of parties? OPD

7.       Relief.”

6. The defendants, before the learned trial Court, admitted that the plaintiffs were amongst the legal heirs of Major Abbasi but took the position that the plaintiffs had relinquished their shares in the suit house in lieu of a plot in the Defence Housing Authority which was allotted to Plaintiff No. 1 on account of being Major Abbasi’s widow. In the proceedings before the learned trial Court, the defendants had not been able to substantiate their claim as to the relinquishment of the plaintiffs’ shares in the suit house. In the proceedings before this Court, the appellants abandoned their claim as to such relinquishment.

7. On 30.06.2021, the learned trial Court issued a preliminary decree to the effect that the children of Mst. Maroof Sultana’s pre- deceased sons in addition to her third son and two daughters who had outlived her, to be her legal heirs with the right to inherit her 1/6th share in the suit house. It was also declared that the legal heirs of Mst. Maroof Sultana are entitled to be given possession of their respective shares in the suit house through partition. The children of Mst. Maroof Sultana’s predeceased sons had been granted the right to inherit from her 1/6th share in the suit house in accordance with Section 4 of the Muslim Family Law Ordinance, 1961 (“MFLO”).

8. The learned trial Court also appointed a local commission with the direction to visit the suit house and submit a report on whether the suit house was partitionable and if so, what was to be the mode of partition. The local commission was also directed to determine the current market value of the suit house if the same was not partitionable. The said judgment and preliminary decree has been assailed by the appellants in the instant appeal.

9. Along with the instant appeal, the appellants filed an application for the suspension of the preliminary decree dated 30.06.2021. Vide interim order dated 21.10.2021, this Court did not interfere with the directions issued by the learned trial Court to the local commission, but restrained the learned trial Court from passing the final decree.

10. On 10.05.2022, learned counsel for Respondents No. 1 and 2 informed the Court that proceedings could not be conducted by the local commission since the record of this case had been requisitioned by this Court. Since this Court had not passed any order requisitioning the record, the record was remitted back to the learned trial Court vide order dated 10.05.2022.

11. Vide order dated 17.03.2022, this Court proceeded ex-parte against Respondents No. 3 to 7 since Office had reported that the said respondents had been served yet they did not tender appearance either personally or through counsel. As regards Respondent No. 7(a)(i) to (v), 7(b) and 7(c), this Court vide order dated 17.03.2022 directed notices to be issued to them through courier as well as registered A.D. Despite the issuance of such notices, no one appeared for the said respondents. Therefore, vide order dated 10.05.2022, this Court directed notices to be issued to the said respondents through publication in the “Daily Jang”. The publication appeared in the newspaper was made and its copy has been brought on the record. Since Respondents No. 7(a)(v) and 7(b) did not appear after the said publication, they are proceeded against ex-parte.

12. Learned counsel for the appellants, after narrating the facts leading to the filing of the instant appeal, submitted that the learned trial Court has correctly given the benefit of Section 4 of the MFLO to the children of Mst. Maroof Sultana’s two pre-deceased sons but such benefit should also have been given to all the widows of the pre-deceased sons; that the two widows of Major Abbasi (i.e., Appellant No. 1 and Respondent No. 1) as well as the widow of Raja Sajid Mehmood Abbasi should have been given inheritance rights out of Mst. Maroof Sultana’s 1/6th share in the suit house; that Appellant No. 1, being the widow of Major Abbasi, was seeking inheritance rights in Mst. Maroof Sultana’s 1/6th share in the suit house, which she inherited from Major Abbasi and not in any other property of Mst. Maroof Sultana; that Section 4 of the MFLO ought not to be literally interpreted so as to confine the benefit of inheritance to the sons and daughters of the pre-deceased child of the propositus; and that in the case of Mian Mazhar Ali vs. Tahir Sarfraz (PLD 2011 Lahore 23), the Hon'ble Lahore High Court had interpreted Section 4 of the MFLO so as to give inheritance rights to the widower of the predeceased daughter to the propositus. Learned counsel for the appellants prayed for the instant appeal to be allowed and for the matter to be remanded to the learned trial Court with the direction to decide the matter after framing new issues.

13. On the other hand, learned counsel for Respondents No. 1 and 2 submitted that the said respondents filed the suit since the appellants had deprived them of their due shares in the suit house; that under Section 4 of the MFLO, only orphaned grandchildren had been granted the right to inherit from their grandparents; that Section 4 of the MFLO does not extend such benefit to the widow of a person who pre-deceases his/her parents; that Respondents No. 1 and 2 acknowledge the fact that Major Abbasi’s mother, Mst. Maroof Sultana, inherited 1/6th share in the suit house and upon her demise, the children of her pre-deceased sons would inherit her estate along with her other legal heirs; that Mst. Maroof Sultana’s two sons, namely Major Abbasi and Raja Sajid Mehmood Abbasi, had pre-deceased her and upon her demise, her estate would devolve on the children of her pre-deceased sons but not their widows; that Respondent No. 1/Plaintiff No. 1 (Mst. Zeenat Tariq) acknowledges that she has no right of inheritance in the estate of her mother-in-law, Mst. Maroof Sultana; and that the instant appeal is vexatious and the same is liable to be dismissed with costs.

14. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 9 above and need not be recapitulated.

15. Learned counsel for Respondents No. 1 and 2 raised an objection to the maintainability of the instant appeal on the ground that the same was time barred by fifteen days. The impugned preliminary decree was passed on 30.06.2021. The certified copy of the said preliminary decree was applied for by the appellants and the same was prepared on the same day i.e., 11.10.2021. It was not until 15.10.2021 that the instant appeal was filed. The appellants, in their application for condonation of delay, have taken the ground that due to the COVID-19 pandemic, the appellants should be given benefit under Section 12 of the Limitation Act, 1908 ("the 1908 Act") and the delay in filing of the appeal ought to be condoned.

16. Due to the COVID-19 pandemic coupled with the lockdown policy of the Federal Government, this Court, vide office order No. 181/IHC/2020 dated 24.03.2020, directed that owing to the then prevailing emergency situation in the country, the period of limitation prescribed by laws for filing appeals/petitions etc. in this Court as well as in the Civil and District Courts, Islamabad shall be deemed to be condoned and the Courts shall be presumed to be closed during the period in the public interest, within the meaning of Section 4 of the 1908 Act. Since the Federal Government lifted certain restrictions earlier imposed by it, this Court directed that the said office order dated 24.03.2020 shall cease to have effect from 30.09.2021 and the period from 24.03.2020 to 30.09.2021 shall be excluded for the purpose of computing the limitation in terms of Section 12 of the 1908 Act for filing of any suit, petition and appeal. Since the period between 24.03.2020 and 30.09.2021 is to be excluded from the limitation period for filing a regular first appeal, and since the office order dated 24.03.2020 was recalled vide notification dated 30.09.2021, the delay with which this appeal was filed is liable to be condoned. Hence, the application for condonation of delay is allowed. I shall now proceed to decide the appeal on merits.

17. Allotment letter dated 10.11.1976 (Exh.D1) shows that the suit house had been allotted to Major Abbasi whereas the family registration certificate (Exh.P2) shows that Major Abbasi was survived by his mother, two widows and two sons. Since Major Abbasi’s mother, Mst. Maroof Sultana, had 1/6th share in the inheritance from her son, she became owner of 1/6th share in the suit house.

18. Two of Mst. Maroof Sultana’s sons, namely Major Abbasi and Raja Sajid Mehmood Abbasi, had pre-deceased her. Major Abbasi had died on 05.08.1992 and his brother Raja Sajid Mehmood had died on 30.09.2010, whereas Mst. Maroof Sultana died on 26.04.2011.

19. As mentioned above vide judgment and preliminary decree dated 30.06.2021, the learned trial Court declared inter alia that the children of Mst. Maroof Sultana’s two pre-deceased sons in addition to Mst. Maroof Sultana’s third son namely, Babar Mehmood Abbasi/ Defendant No. 7(a) and two daughters namely, Mst. Khalida Fiaz/ Defendant No. 7(b) and Mst. Abida Zaib/Defendant No. 7(c) would inherit Mst. Maroof Sultana’s 1/6th share in the suit house. The children of Mst. Maroof Sultana’s two pre-deceased sons had been given the benefit under Section 4 of the MFLO by the learned trial Court.

20. The appellants’ case is that the learned trial Court ought to have given the two widows of Major Abbasi and the widow of Raja Sajid Mehmood Abbasi the benefit to inherit from Mst. Maroof Sultana’s 1/6th share in the suit house.

21. The vital question that needs to be answered is whether the widows of the pre-deceased children of the propositus could be extended benefit under Section 4 of the MFLO by granting them rights of inheritance from the estate of the parents of their pre-deceased spouses.

22. Section 4 of the MFLO is reproduced herein below:

“4. Succession.--In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be would have received, if alive.”

(Emphasis added)

23. Although the Hon'ble Federal Shariat Court in the case of Allah Rakha vs. Federation of Pakistan (PLD 2000 FSC 1) had declared Section 4 of the MFLO to be repugnant to the injunctions of Islam and a direction had been issued to the President of Pakistan to take steps to amend the law so as to bring the said provision in conformity with the injunctions of Islam, the said judgment is yet to take effect. This is because under the proviso to Article 203D(2)(b) of the Constitution, a decision of a Federal Shariat Court declaring a law or any provision thereof to be repugnant to the injunctions of Islam does not take effect before the disposal of an appeal preferred before the Hon'ble Supreme Court against the decision. For the purposes of clarity, Article 203D(2) of the Constitution is reproduced herein below:-

“(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision --

(a) the reason for its holding that opinion; and

(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect:

Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.”

(Emphasis added)

24. Learned counsel for the contesting parties were in unison on their submission that the appeal preferred against the decision of the Federal Shariat Court in the case of Allah Rakah vs. Federation of Pakistan (supra) has till date not been disposed of by the Hon'ble Shariat Appellate Bench of the Supreme Court. Hence, it would be safe to hold that in the present circumstances Section 4 of the MFLO, which has till date not been amended by the legislature, is to be enforced.

25. Had the legislature intended for benefit under Section 4 of the MFLO not to be confined to the children/offspring of the pre- deceased children of the propositus but also to the widow or any other legal heir of such pre-deceased children, the legislature would have employed the words “legal heirs of such son or daughter” instead of “the children of such son or daughter” in the said Section. Since Section 4 of the MFLO creates an exception by altering the Islamic laws of inheritance applicable to orphaned grandchildren, the same is to be construed strictly. The meaning of the word “children” cannot be stretched to include “widows” or “any other legal heir” of the pre-deceased child of the propositus no matter which canon of statutory interpretation is adopted. Therefore, I find the contention of the learned counsel for the appellants that under Section 4 of the MFLO, the children (i.e., sons and daughters only) in addition to the widows or any other legal heir of a predeceased child of the propositus would also inherit, to be bereft of substance. In holding so, reliance is placed on the following case law:-

(i)       In the case of Saifur Rehman vs. Sher Muhammad (2007 SCMR 387), the Hon'ble Supreme Court, after making reference to Section 4 of the MFLO, held that a daughter-in-law was not entitled to any share from the property left by her father-in-law as her husband had died before the death of her father-in-law.

(ii)      In the case of Maqbool Begum vs. Taj Begum (PLD 1973 Note 128), the Hon'ble High Court of Sindh held that the rule of inheritance of Muslim Personal Law as altered by Section 4 of the MFLO makes only the children of a pre- deceased son or daughter of the propositus entitled to receive per stripes a share equivalent to the share which such pre-deceased son or daughter, as the case may be, would have received if alive. The widow or the husband of a pre-deceased son or daughter, as the case may be, does not come within the purview of Section 4 of the MFLO.

(iii)     In the case of Ghulam Haider vs. Nizam Khatoon (2002 YLR 3245), the Hon'ble Lahore High Court held as follows:

“6. The precise question which falls for determination in this civil revision is whether upon the text of section 4, a widow of predeceased son could also inherit alongwith children of the pre-deceased son. This matter was first considered in Kamal Khan alias Kamala v. Mst. Zainab (PLD 1983 Lah. 546), wherein it was held that it is only the children of the pre-deceased, son or predeceased daughter of propositus who would inherit in accordance with the Muslim Law sharer and that the widow of predeceased son would be excluded on the strength of the provisions of Section 4 (ibid). The remaining share of pre-deceased son would be distributed amongst the residuaries. The judgment in the case of Kamal Khan (Supra) was challenged in the Supreme Court wherein, it was ruled in case titled Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051) that the true interpretation of section 4 of the Muslim Family Laws Ordinance, 1961 would be to entitle the children of the predeceased son or daughter to claim inheritance of the propositus and that the widow of the predeceased son is not so entitled .....…”

(iv)     In the case of Muhammad Hanif vs. Muhammad Ibrahim (2005 MLD 1), the Hon'ble Lahore High Court interpreted Section 4 of the MFLO in the following terms:

          “This section relates to and deals with the right of inheritance of the issues of the predeceased son and daughter. It provides that if a person dies and leaves behind issues of such of his sons or daughters who were dead in his life time, the issues of the deceased sons and daughters will be entitled to inherit the shares that their father or the mother would have inherited had they been alive at the time of death of that person. The object and rationale behind this provision is to ameliorate the distress of those unfortunate children whose father and mother are snatched away by death in the life time of their grandfather. Such orphan grandchildren are sought to be compensated in such a way by giving the share in inheritance to which their father or the mother would have been entitled. The express and unambiguous phraseology and language of the provisions of law leaves no obscurity or doubt that the “children of such son” are only entitled to inherit and receive share which expression does not possibly within its ambit include the widow “of such son”.”

(v)      In the case of Qutab-ud-Din vs. Zubaida Khatoon (2009 CLC 1273), the Hon'ble Lahore High Court upheld the preliminary and final decrees passed by the learned trial Court whereby benefit of inheritance under Section 4 of the MFLO was given to the children of the pre- deceased son of the propositus but not to the widow of the pre-deceased son.

(vi)     In the case of Shabi-ul-Hassan Khusro vs. Asad Mustafa (2016 MLD 266), the Hon'ble High Court of Sindh explained the scope of Section 4 of the MFLO in the following terms:

          “As far as provisions of Section 4 of Muslim Family Laws Ordinance, 1961 is concerned, it is quite clear that it relates to a specific category of class of legal heirs i.e. sons and daughters of deceased which is not the case here. Since the plaintiff claims to be son of predeceased sister of deceased and quite fairly learned Counsel submits that with all due diligence that he made the provisions of Section 4 of the Muslim Family Laws Ordinance, 1961 could not be applied. However considering another limb of the plaintiff’s case as to whether any analogy of such principle of Section 4 of Muslim Family Laws Ordinance, 1961 could be applied, I am afraid that it is the wisdom of the legislature, who incorporated the predeceased sons and daughter. Had the words of legal heirs been incorporated such as “predeceased legal heirs” than the plaintiff’s case could be looked into, however the plaintiff’s case is confined to such that relates to the sons and daughters of predeceased words “sons and daughters” is used in section ibid and its horizon cannot be extended to predeceased sisters.”

(vii)    In the case of Hassan Aziz vs. Meraj-ud-Din (2021 CLC 1821), this Court, after referring to several judicial precedents including the case of Allah Rakha vs. Federation of Pakistan (PLD 2000 FSC 1), held as follows:-

          “7. The outcome of above discussion is that under the Islamic Law of Inheritance, there is no concept of grandchildren inheriting from grandfather and section 4 ibid is an exception to the said principle. The bare reading of section 4 ibid shows that only the sons and daughters (children of predeceased sons and daughters) shall inherit from grandfather /grandmother as per stripes i.e. the share which their father or mother was entitled to inherit.”

26. Now, as mentioned above, after the preliminary decree was passed by the learned trial Court, the local commission could not comply with the directions issued by the learned trial Court due to the record of the case having been sent to this Court. I have gone through the order sheet and have confirmed that no order had been passed by this Court for requisitioning the record of the learned trial Court. Where the record is requisitioned by the High Court, it operates as a stay of further proceedings before the learned trial Court and/or the learned Executing Court. In the case at hand, only a preliminary decree was passed. This implies that the suit is still pending and the commission is supposed to discharge its obligations in accordance with the directions issued by the learned trial Court in the preliminary decree. Due to the requisitioning of the record, the commission could not take further steps in compliance with the directions issued by the learned trial Court. The requisitioning of the record without a specific order by this Court for doing so unnecessarily protracted the proceedings before the learned trial Court. Therefore, Office is directed not to requisition records of cases pending before the learned trial Court where no orders are passed by the Appellate Court for such a requisition.

27. In the prayer-clause of the instant appeal, the appellants have sought the setting-aside of the impugned judgment and

preliminary decree and for the matter to be remanded to the learned trial Court with the direction to decide the matter afresh after framing new issues. The desire of the appellants for fresh issues to be framed by the learned trial Court is indicative of their intention to protract the litigation with Respondents No. 1 and 2 and also to deprive the respondents of possession of their respective shares in the suit house. It is the obligation of the Court to impose exemplary costs on parties who deprive persons of their due rights of inheritance in property. Inheritance, from the point of view of the heir, is not a matter of need but of right. It is an admitted position that ever since the demise of Major Abbasi, Respondent No. 1 and 2 have not been given possession of any portion in the suit house. This deprivation caused the respondents to invoke the jurisdiction of the learned Civil Court, and have been embroiled in the agony of litigation over the past six years. Therefore, this appeal is dismissed with costs throughout payable to Respondent No. 2. Additionally costs of Rs.1,00,000/- is imposed on each of the appellants in terms of Section 35(1)(iii) C.P.C. as amended by the Costs of Litigation Act, 2017. The said costs shall be deposited by the appellants in the National Treasury and the deposit receipt submitted to the Additional Registrar (Judicial) of this Court within a period of thirty days.

(Y.A.)  Appeal dismissed

Read More

Provisions of C.P.C. and Qanun-e-Shahadat Order are not applicable to proceedings of Family Court--Only one right of appeal has been provided by Act against final order of Family Court, whereas no provision of appeal or revision shall lie against an interim order of Family Court-

 PLJ 2022 Lahore 580

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 14 & 17--Jurisdiction of--Filing of objection application--Execution proceedings--Right of appeal--No provision of appeal or revision shall lie against an interim order--Provisions of C.P.C. and Qanun-e-Shahadat Order are not applicable to proceedings of Family Court--Only one right of appeal has been provided by Act against final order of Family Court, whereas no provision of appeal or revision shall lie against an interim order of Family Court--High Court has reason to believe that while assuming jurisdiction to entertain said appeal and passing impugned order, erred in law by setting aside interim orders passed by Executing Court.

                                                                                  [P. 583] A, B & C

2002 SCMR 1950 ref.

M/s. Adnan Qureshi & Tanveer Hayat, Advocates for Petitioner.

M/s. Agha Abdul Hassan Arif & Nosheen Amber Bukhari, Advocates for Respondent No. 1.

Date of hearing: 8.3.2022.

 PLJ 2022 Lahore 580
Present: Safdar Saleem Shahid, J.
SADIA IQBAL--Petitioner
versus
UMAR NASIM AHMED etc.--Respondents
W.P. No. 14646 of 2016, decided on 8.3.2022.

Order

Through this constitutional petition, Mst. Sadia Iqbal petitioner has challenged the validity of judgment dated 11.03.2016 whereby learned Addl. District Judge, Lahore set aside the orders dated 23.05.2015 & 15.12.2015 passed by learned Executing Court Lahore, “with the directions to learned Executing Court to determine/ ascertain the actual value of gold ornaments and not pure gold, prevailing at the date of satisfaction/execution of decree, when the judgment debtor had paid decretal amount, which was exact date of execution/satisfaction of decree, as per order of Hon’ble Lahore High Court, Lahore”.

2. Perusal of order dated 06.05.2016 passed by this Court in the instant petition reveals that on the said date, learned counsel for the petitioner contended that Respondent No. 1 had filed an application before the learned Executing Court raising objection on the value of gold ornaments on 3rd June, 2015 which was dismissed vide order dated 11th June,2015. Thereafter, the Respondent No. 1 filed EFA No. 1366 of 2015 against the said order, which he withdrew, after arguments, vide order dated 21.10.2015; that instead of availing appropriate remedy, he again moved an application with the same contents, pleadings and prayer seeking revaluation of the gold ornaments on 28.11.2015 which was also dismissed by the learned Executing Court vide order dated 15.12.2015. Thereafter, he preferred an appeal before the learned Lower Appellate Court which was taken up and decided vide impugned judgment dated 11.03.2016, despite the objection of learned counsel for the petitioner that appeal did not lie against the said interim order as per provisions of Section 14(3) and 17 of the West Pakistan Family Court Act 1964.

3. Arguments heard. Record perused.

4. The actual point involved in the instant petition was that whether learned first Appellate Court was having jurisdiction to entertain the appeal against the interim orders of learned Executing Court as per provisions of Section 14(3) and 17 of the West Pakistan Family Court Act 1964?. Here I would like to reproduce Section 14(3) & Section 17 (supra) as under:

“Section 14(3) “No appeal or revision shall lie against an interim order passed by a family Court”.

“Section 17 provisions of evidence Act and Code of Civil procedure not to apply.(1) save as otherwise expressly provided by or under this Act, the provisions of the (Qanun-e-Shahdat, 1984 (P.O No. 10 of 1984) and the Code of Civil procedure, 1908 (except Sections 10 & 11) shall not apply to proceedings before any Family Court ( in respect of part I of Schedule).”

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.

5. It has been noticed that Mst. Sadia Iqbal petitioner filed writ petition Bearing No. 29500 of 2013 before this Court. Vide order dated 12.06.2014 this Court observed as under:-

        “The respondent is held entitled for recovery of gold ornaments as prayed for or in alternate their market value which would be prevailing at the time of execution/satisfaction of the decree”

        “From the above discussion, it has been established on record that both the learned Courts below erred in law while declining the prayer of respondent for recovery of deferred dower. The petitioner could not prove that he has paid the dower during the existence of marriage, therefore, respondent is held entitled to recover Rs. 1,00,000/- from the petitioner as deferred dower.

Keeping in view the aforesaid observations passed by this Court, the learned Executing Court vide order dated 23.05.2015 had fixed the value of seventy tolas gold ornaments as Rs. 32,90,000/- and dower amount of Rs. 1,00,000/-, total decretal amount was calculated as
Rs. 33,90,000/ and thereafter the learned Executing Court, Lahore directed the respondent/judgment debtor to present seventy tolas gold ornaments or its value ascertained hereinabove or Rs. 33,90,000/- as decretal amount. The respondent/judgment debtor filed an application seeking evaluation of correct price of gold ornaments and depositing of an amount of Rs. 3,00,000/- in lieu of decretal amount which was dismissed by learned Executing Court vide order dated 11.06.2015. Being aggrieved by the orders of learned Executing Court, the respondent/judgment approached this Court by filing EFA No. 1366 of 2015 which was dismissed by this Court vide order dated 21.10.2015 and that dismissal order was not assailed by the respondent /judgment debtor. It has further been noticed that respondent/judgment debtor also filed an application under Section 151 CPC read with Section 94 of CPC praying the Court to appreciate the actual direction of this Court given in para No. 13 of the judgment dated 12.06.2014 passed in W.P No. 12640 of 2013, which was also dismissed by learned Executing Court vide order dated 15.12.2015. Thereafter on 05.01.2016 against the orders dated 23.05.2015 & 15.12.2015 passed by learned Executing Court, the respondent/judgment debtor filed a family appeal before the learned Addl. District Judge, Lahore who set aside the aforesaid orders passed by learned Executing Court. The other question arises that whether interim order dated 23.05.2015 passed by learned Executing Court, during the execution of decree in question can be assailed through appeal which was allegedly filed by the respondent/judgment debtor on 05.01.2016 with the delay of more than seven months. The West Pakistan Family Courts Act, 1964 provides only one provision of appeal and in view of that whether appeal against other interim order dated 15.12.2015 is competent and maintainable before learned Ist Appellate Court. During the course of arguments learned counsel for respondent/judgment debtor took stance that an illegal order of the Court may be assailed in appeal before the Court of competent jurisdiction and as such the appeal before the learned appellate Court regarding the aforesaid orders passed by learned Executing Court was well maintainable before the said Court. It was further contended by learned counsel for the respondent that learned executing Court was bound to fix the market value of alleged gold ornaments keeping in view the spirit of judgment dated 12.06.2014 passed by this Court in W.P No. 12640 of 2013 which was not certainly followed by the learned Executing Court. In the case reported as “Muhammad Sadiq vs Dr. Sabir Sultana” (2002 SCMR 1950) the Hon’ble Supreme Court of Pakistan has observed as under:-

Ss.13 & 17--civil procedure Code (V of 1908),O.XXI,
 R.  54--Order of attachment and auction of property by the Family Court--Compliance of O.XX,R.54, C.P.C.--Necessity--Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough--Strict compliance with O.XXI,R.54 CPC may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54 C.P.C has been excluded by S.17 of the said Act.

The West Pakistan Family Courts Act 1964 is a special law and all the proceedings are conducted under the said act and when only one provision of appeal is provided that means there is philosophy behind the said provision of aforementioned Act and Family Court has been empowered to decide all the matters while observing the principle of law. The provisions of C.P.C and Qanun-e-Shahadat Order are not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution. This is why that only one right of appeal has been provided by the Act against the final order of the Family Court, whereas no provision of appeal or revision shall lie against an interim order of the Family Court, especially when the petitioner has taken a specific objection regarding the maintainability of appeal before the learned 1st Appellate Court, that matter should have been decided first in view of spirit of law. Keeping in view the facts and circumstances of the case, this Court has reason to believe that learned Addl. District Judge, Lahore while assuming the jurisdiction to entertain the said appeal and passing the impugned order, erred in law by setting aside the interim orders passed by learned Executing Court.

6. For what has been discussed above, instant petition is accepted and order dated 11.03.2016 passed by learned Addl. District Judge, Lahore is set aside.

(K.Q.B.)          Petition accepted

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