2005 M L D 376
Dower‑‑‑Exclusion of jurisdiction‑‑‑Withdrawal of suit ‑‑‑Limitation‑‑Petitioner filed suit in Civil Court for declaration of title to property allegedly given to her in dower and as such was recorded in the "Nikah Nama"‑‑‑Suit was resisted by the defendant and he objected to jurisdiction of the Court along with other objections‑‑‑Trial Court dismissed the suit and appeal also failed‑‑‑Suit was withdrawn by the petitioner with permission to file fresh suit in revisional proceedings in the High Court‑‑‑Petitioner filed fresh suit in the Family Court‑‑‑Suit was decreed by the Family .Court‑‑‑Appellate Court dismissed the suit expressing its view that Article 104 of the Limitation Act, 1908 was applicable and suit , was barred by time and provision of section 14 of the Limitation Act was not applicable‑‑‑Validity‑‑‑Earlier suit was withdrawn under Order XXIII, Rule 1, C.P.C.‑‑‑Order XXIII, R.2 was not applicable to the suits filed under West Pakistan Family Courts Act 1964 because section 17 of the West Pakistan Family Courts Act barred it‑‑‑Even applying Order XXIII, Rule 2, C.P.C., words used in the said rule "Law of Limitation" include sections and Articles to be applied‑‑Section 14 of the Limitation Act excludes the period spent in previous litigation‑‑‑Respondent had raised objection about jurisdiction and had consented to withdrawal and grant of permission to file fresh suit‑‑‑Suit was competent before the Family Court‑‑‑Petitioner's suit was declaratory in nature regarding affirmation of rights with consequential relief of possession‑‑‑Articles 103 and 104 of the Limitation Act, 1908 were not applicable rather Article 120 of the said Act was applicable‑‑Judgment and decree of Appellate Court was declared to be illegal and unlawful , and suit of the plaintiff was decreed with costs in circumstances.
Dower‑‑Limitation‑‑‑Law of Limitation was applicable to suits before Family Court‑‑‑Not only the Articles but also the sections of the Limitation Act, 1908 were to be applied unless expressly or impliedly barred by any provision of law‑‑‑Mere influx of time could not be the causation of removing the law from the book of statutes‑‑‑Suit filed by petitioner was not for the recovery of Dower prompt or deferred, but was for declaration of ownership of property given over to wife at time of marriage‑‑‑Wife's right of ownership was denied/refuted by her husband‑‑‑Such suit would be declaratory suit regarding the affirmation of rights in property along with the consequential relief of possession‑‑Articles 103 and 104 of the Limitation Act, 1908 were not applicable and residuary Article 120 of the Limitation Act, 1908, would apply.
Return of suit‑‑Withdrawal of suit from Court having no jurisdiction‑‑‑Consent of the opposite party to withdrawal and permission‑‑‑Petitioner was working under bona fide belief that the Civil Court was competent when she instituted her suit in the Civil Court‑‑‑Respondent had raised objection that suit was not competent in Civil Court‑‑‑Acting upon that objection suit was withdrawn with the consent of respondent and was filed in the Family Court‑‑‑Court had not returned the suit‑‑Suit withdrawn from Court having no jurisdiction, benefits of section 14 of the Limitation Act. 1908 were available to the petitioner.
Entries in "Nikah Nama"‑‑‑Entries in "Nikah Nama" are sufficient proof of transfer of the property and it requires no registration or any other document for completion.
Lis Pendens, principle of‑‑‑Bona fide‑‑‑Transfer of suit property made during pendency of suit could not beheld to be bona fide.
