Law Authorities

Power of attorney can be can be revoked/ cancel orally

2016 MLD 1243, 2002 SCMR 1821, 2008 SCMR 1384, PLD 1986 Lah 284, 2002 SCMR 1821

1996 MLD 1123, 2005 SCMR 1315,

_________________________________________________________________________

[PLJ 2004 SC 2][PLD 1981 SC 602][NLR 1999 PCRLJ 137][2003 YLR 274][2005 PCRLJ 252]

[PLD 1984 SC 428][PLD 1999 SC 1063][2000 MLD 605][1991 PCRLJ 1381][1985 SCMR 257][

PLD 1991 LAH 268][1999 MLD 1645][PLD 1999 SC 1063][2003 PCRLJ 12][PLJ 2003 AJ&K]

[2004 PCRLJ 1068]

________________________________________________________________

Accused can be acquitted on single doubt

[2016 MLD &%& PARA B][1999 SCMR 1220][2009 SCMR 230]

_________________________________________________________________

If appeal and revision section are involved then intra court appeal does not lie

[PLD 2005 SC 45][2011 YLR 2497][2011 MLD 1652][PLD 2014 LAH 17][2016 CLC 792]

__________________________________________________________

In civil cases Review is limited and it will be accepted if new evidence will be brought

2016 CLC 10

____________________________________________________________

489-f. It is necessary should be observed malafide intention of accused at the time of issuance of

cheque. [PLD 2013 Sindh 488]

_____________________________________________________________

489-f it is necessary by police to obtain dishonoured slip from complainant S.30 Negotiable

instrument [PLD 2013 LHR 442]

__________________________________________________________

489-f instead of date there was over writting on the cheque bail grant [2014 SCMR 1032]

___________________________________________________________

489-f huge amount was dishonoured cheque , accused knowingly given cheque bail rejected

2016 MLD 1450

_______________________________________________________

Ossification Test . court can inquiry about the age of accused to know his age.

[2016 PCRLJ 638]

___________________________________________________________

In case calling for further inquiry , mere abscondence is not sufficient to refuse bail

[2016 SCMR 1520][2016 SCMR 1593][ 2015 PCRLJ 9 SC][PLD 2012 SC 222]

[2012 SCMR 1273][2012 SCMR 1137][PLJ 2012 SC 846][2009 SCMR 299]

________________________________________________________

Bail can be granted on compromise basis in non compoundable cases.[2013 PCRLJ 1458]

_____________________________________________________

Adopted child is not entitled in property, if parents does not give him share ⅓ .

Verse 33: Quran [PLD 2015 LHR 336][PLD 2014 SINDH 120]

____________________________________________________

SRPO tenant was residing for 22 years , only 9 days rent did not paid. Court ordered for eviction in

default of rent. [1995 mld 1146][pld 1995 KAR 510][19980 SCMR 834][1989 SCMR 1670]

[PLD 1990 SC 389]

_____________________________________________________________

Usually it shows that landlord asked the tenant for eviction in that result tenant file suit for ownership

of property , in such condition court ordered firstly to evict the house then tenant file suit for

ownership. [2016 PLD Lhr 123]

______________________________________________________

Article 3 of Qanoon e shahadat . if child understand the question and he can give proper answer then

his evidence can not be revoke / cancel. [2016 YLR 1922][ 2001 1919]

__________________________________________________________

Section 6 (5) MFLO , crpc 179 & 182 ----without permission of wife marriage with another girl, wife

can file complaint against her husband before the magistrate where she is residing.[1993 SCMR

1901] and 2nd wife can also complaint [PLD 1991 SC 1074].

_______________________________________________________

Section 439 Narcotic Act Sec 48(1) it is special law therefore revision against acquittal can not be file

[2016 PcrLJ 1504 Lah][PLD 2013 361]

_______________________________________________________

Section 19,20,21,22,27, Qanoon shahadat (Res-Gestae) in criminal cases there was no eye witness

except hear & say witnesses it is week evidence [2016 MLD 1468]

___________________________________________________________

Family court has all religious jurisdiction [2016 PLD LHr 271]

______________________________________________________

Order VII Rule 11 CPC, such fact was not stated in trial court then it will be stated in appellate court

2016 MLD 1606, 1971 PLD SC 61.

_____________________________________________________

Muhammadan Laws Section 371 . Old parents are entitled for maintenance . PLD 2014 Pesh 21

________________________________________________________

Refund of court fees . [2006 CLD 1548] [2004 CLC 430][2007 YLR 1454][2003 CLC 276]

[2008 MLD 546][2002 CLC 165][2010 MLD 1250][2002 CLD 1424][2011 CLC 314][2002 CLD 605]

[2012 MLD 1334][1999 MLD 3362][2005 CLC 688][1997 CLC 761][2005 PLD 280][1995 CLC 1277]

[1993 MLD 1788][1992 PLD 160][1987 CLC 530][1976 PLD 1320][1973 PLD 206 SC]

_____________________________________________________

Life imprisonment. According to section 57 PPC & Rule 198(b) “Life imprisonment means 25 years

rigorous imprisonment 2013 SCMR 1582.

________________________________________________________________

Family court can struck off right of written statement even on single date [2014 SCMR P-1365]

_____________________________________________________________

Suit for recovery of dowry articles can be filed not only against her husband but also filed against the

father , mother and brother of her husband 2011 SCMR 1591 Supreme Court

_________________________________________________________

Article 3,4,79 of PEHO . 800 KG Bhang recovered. Complainant IO & Witness were police officials

accused acquitted . [2014 Pcrlj 1450 FSC]

______________________________________________________

Succession does not issue regarding jewelry [1988 MLD 1270][1988 CLC 1467]

____________________________________________________________

Succession certificate can be issued Gratuity and administration. 1993 MLD 2171, PLD 1979 Lah 34

__________________________________________________________

Sec. 20,24,26,39, 44 Electricity Act .. huge amount charged in bill. Inspector did not check the meter

of the consumer . 2003 CLC 1574

_____________________________________________________________

Telephone call history was a valuable piece of evidence to trace out culprits [PLJ 2009 crc 271]

________________________________________________________

If owner sale property to 2 different persons then FIR can be lodged against owner of fraud and civil

also be filed. 1st buyer is entitled for purchase such property. [2009 PLD KAR 382][2013 SCMR 1600]

___________________________________________________________

List of witness= witness name is not mentioned he can give evidence after stating reason f

[PLD 1980 LAH 495] [ 1999 SCMR 803][2016 CLC 1637 Pesh]

______________________________________________________________

Attorney can not transfer property to himself or his kids & kin without special and specific consent and

permission of principal. [2016 SCMR 1781]

__________________________________________________________

Time bar application for leave to defend in summary suit dismissed.

Application for leave to defendant the suit was filed after prescribed limitatio, no condonation

application of delay had been filed. No satisfactory explanation had been given as to why defendants

did not seek leave to appear and defend the suit within the prescribed period . Appeal was dismissed

in circumstances. [2016 CLC 1100 PESH]

_________________________________________________________

Suit for correction in name or date of birth in board documents.

[2017 PLC (CS) 104] [2017 YLR 1485][2017 CLC 1085][2016 YLR 302] [2016 YLR 2435][2014 YLR

2042] (correction DOB in service book 2017 TD Lahore 01]

_________________________________________________________

Family court could not refuse to exercise the jurisdiction on the ground of non availability of the

provision of review …[2014 CLC 715 PESHAWer]

____________________________________________________________

Compromise decree execution

PLJ 2004 LAHORE #30

_________________________________________________________________________________
Section 12 (2) CPC

Where a person challenges the validity of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate Suit.

Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice :

1994 SCMR 782

S.12 (2) CPC Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice. [p. 786] A.

Judgment had been obtained on basis of a forged document

Leave to appeal was granted to examine the scope of S.12 (2) CPC, with a view to ascertain whether it included the grounds that a judgment had been obtained on basis of a forged document.1993 SCMR[p.712] A.

Fraud

Fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud.

1993 SCMR [p. 714] C.

Fraud vitiates the most solemn proceedings. 1994 SCMR [p. 790] F.

S.12(2)---Where a decree was  allegedly obtained on the forged certified copy of entry made in a Register of Death kept under the Births, Death and Marriage Registration Act 1886, the same would amount to fraud and application under S12(2) CPC, would be competent on basis thereof.

1993 SCMR [p. 715] D.

            In the circumstances and for going reasons this appeal is allowed, the impugned judgments are set aside. The Application U/S. 12(2) CPC shall stand remanded to the District Judgment for entrustment to the appropriate Court for decision in accordance with law.

1993 SCMR [p. 715] D.

Serious allegation of fraud, collusion and misrepresentation: 2006 SCMR 1530

S.12(2)---Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation---Dismissal of application summarily by Trial Court was upheld in revision and by High Court in constitution petition---Validity---Disposal of application in such manner was not justified in view of serious allegation leveled therein----Trial Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without recording evidence of parties----Inquiry directed by Supreme Court accepted appeal set aside impugned judgment of High Court and Courts below directing that such application would be deemed to be pending before Trial Court for its decision within specified time after framing issues and recording evidence of parties. 2006 SCMR 1530-1532 A & B.

Serious allegation of Forgery, fraud, collusion and misrepresentation could not be decided without recording of evidence: 2008 SCMR 236

Case Remanded:

S.12(2)---Application U/ S.12(2) CPC. Containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236, [p.239] A.  2006 SCMR [p. 1532] A & B. 1993 SCMR [p. 712] A.

Trail Court ought to frame issues and record evidence of parties, particularly when decree had also been passed without evidence of parties.

Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation-Plea of petitioner was that exemption orders were invalid, fictitious, forged thus----Dismissal of application summarily by trial Court was upheld in revision and by High Court in Constitutional Petition---Disposal of application in such manner was not justified in view of serious allegations leveled therein—Trail Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without evidence of parties.

2006 SCMR [p. 1532] A & B.

Status Quo Confirmed : 1987 CLC 484

S.12(2)---Applicant challenging validity of decree under S.12(2) CPC, Status quo order issued earlier was confirmed in order to avoid third party interest and to avoid complications. [p.485] A.

Status Quo was maintained: 1994 SCMR365

S.12(2)---The ex parte decree of which the execution is sought is under challenge before trial Court on grounds of fraud and collusion and matter being sub judice, the trial court had properly exercised its discretion in maintaining status quo, and the appellate court without substantial judgment of revisional court. 1994 SCMR [p.367] A.

Ex Parte decree had been obtained on basis of defective and false service on applicant in collusion with bailiff of court 1987 MLD 1253 [p.1255].

S. 12(2) ---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal of suit for non-prosecution---Non-issuance of notice of restoration application to defendants and fresh notices after suit restored---Passing of ex parte decree on 6-4-2009 and getting possession of suit house by plaintiff through its execution---Application under S.12(2) , C.P.C. for setting aside ex parte decree by legal heirs of a defendant, who died on 14-1-2008 during pendency of suit---Order of Trial Court allowing application under S.12(2) , C.P.C. and setting aside whole decree upheld by Appellate Court---Plaintiff's plea that such decree could be set aside partly to the extent of deceased defendant and not other defendants, who had not participated in proceedings under S. 12(2) , C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of defendants and against a dead person, whose signatures appearing on Vakalatnama did not tally with his signatures on suit agreement---Such ex parte decree could not enjoy sanctity attached to a judicial order---Ex parte decree had been set aside on grounds of fraud committed by plaintiff and disclosure of sufficient cause by defendants for their non-appearance---Fraud would vitiate most solemn proceedings---Tainted actions would be void ab initio wholly and not partly---Section 12(2) , C.P.C. equated fraud with illegality invalidating a defective order fully and not by some degree---Such ex parte decree must be set aside wholly and not partly as there were no degrees of invalidity---Plaintiff had not pointed out any jurisdictional defect in the impugned orders---High Court dismissed constitutional petition, in circumstances.

2012  PLD  240  LAHORE.

Ss.9, 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.84---Civil Procedure Code (V of 1908), S.12(2) , O.VII, Rr.1(c) & 9(1A)(b)--- Suit for recovery of bank loan---Fraud---Proof---Comparison of signatures---Powers of court---Suit filed by bank was decreed ex parte against some of the defendants and execution was filed---Such defendants got ex parte decree set aside on the ground that they did not mortgage their properties resultantly suit filed by bank was dismissed---Validity---Mortgage deed in respect of properties showed name of one defendant as witness, whereas power of attorney of the same date showed that same defendant executed it on such date and some other person was shown as a witness---Such anomaly itself showed nothing but fraud and forgery and vitiated the two documents---Banking Court, on its own, under the provisions of Art.84 of Qanun-e-Shahadat, 1984, looked into the signatures of the defendant as available on mortgage deed and power of attorney, both of the same date and compared the same from the ones available on Vakalatnama, leave to defend application and other documents and came to the conclusion that signatures appearing on deeds and power of attorney were forged---Banking Court after looking into the matter had rightly dismissed the suit and judgment required no interference--- Appeal was dismissed in circumstances.

2012  CLD  471  KARACHI.

S. 12(2) ---Application under S.12(2) , C.P.C.---Duty of Court while entertaining such application---Important aspects to be examined by court highlighted.         2012  CLC  1019  KARACHI.

S. 12(2) ---Limitation Act (IX of 1908), Art. 181---Ex parte decree dated 6-7-2000, setting aside of---Application under S. 12(2) , C.P.C., filed on 26-5-2004---Validity---Limitation Act, 1908 did not provide any period of limitation for filing such application---Resort in such case could be made to Art. 181 of Limitation Act, 1908 providing three years from date of accrual of right to apply---Right to apply accrued to applicant on 6-7-2000, when ex parte decree was passed against him---Such application was dismissed for being time barred.

2011  MLD  1956 PESHAWAR.

S.12(2) ---Application under S.12(2) , C.P.C.---Issues, framing of---Scope---Court could refuse to frame issues and record evidence, if it considered it not proper to carry on proceedings in accordance with provisions of C.P.C.           2011  MLD 1956 PESHAWAR.

                       

S. 12(2) ---Allegation of fraud and forgery---Proof---Essentials---Applicants challenged the judgment and decree of Trial Court under S.12(2) , C.P.C. on the grounds of fraud and collusion and contended that registered power of attorney on their behalf was fake and fictitious and neither the sale transaction in respect of disputed property was made by them nor possession of the same was delivered to the decree-holder---Trial Court accepted application of the applicants and set aside the impugned judgment and decree---Re visional Court returned memo of revision for want of pecuniary jurisdiction---Respondent asserted that before deciding application under S.12(2) , C.P.C. the Trial Court had not provided opportunity to adduce evidence and to prove that the proceedings conducted in the suit was in accordance with law---Validity---Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with letter and spirit prescribed under the law---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law---Judgment and order passed by Trial Court was illegal and derogatory to the principle that no body should be condemned unheard---High Court allowed revision petition and remanded the case to Trial Court to decide the same under the law, after affording opportunity to produce evidence to both parties and further to decide the application within a period of three months without trial, after receipt of record.           2011 CLC 355 PESHAWAR.

                      

S. 12(2) ---Allegation of fraud and forgery---Proof---No provision of law existed whereby the pleadings of the parties would be considered as prima facie proof of allegations made therein, unless the facts mentioned in the pleadings had not been proved and in support, thereof, the maker of the document appeared before the court and testified that the document had been scribed at his instance and furnished the particulars of fraud and proof thereof stood to the test of cross-examination, in absence whereof, pleadings were not sufficient to substantiate the claim of party to the suit, if the party to suit did not appear to testify about the pleadings not to be considered as the proof of facts mentioned therein, same had always been excluded.

2011 CLC 355 PESHAWAR

S. 12(2) ---Allegation of fraud and misrepresentation---Requirements---While deciding the questions of fraud and misrepresentation, the recording of evidence was the requirement of law, therefore, in the light of evidence any order could be passed, but not to dismiss the complaint summarily and to short circuit the proceedings in haste in uncalled and indecent manner.

2011 CLC 355 PESHAWAR      

                      

S. 12(2) ---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law.

2011 CLC 355 PESHAWAR

                      

S. 12(2) -Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with the letter and spirit prescribed under the law.

2011 CLC 355 PESHAWAR.

Ss. 9, 19 & 22--Civil Procedure Code (V of 1908), S.12(2) , O.VII, R.11 & O.IX, R.13---Suit for recovery of loan---Execution proceedings---Challenging judgment, decree on ground of fraud and misrepresentation---Setting aside ex parte decree, application for--- Application for setting aside ex parte decree and challenging judgment, decree on ground of fraud and misrepresentation filed by the defendant had been dismissed by the Banking Court---Validity---Since the defendant, admittedly was not served on his address, given in the memo of plaint, but on another address, notices were sent, where the defendant was not residing; and the defendant came to know about the proceedings when plaintiff Bank filed application under O.VII, R.11, C.P.C., prima facie application under S.12(2) , C.P.C. was  maintainable---Controversy, whether any fraud and misrepresentation had been made in the matter, could be resolved after recording the evidence---Impugned order was set aside---Banking Court was directed to frame the issues and after recording the evidence and hearing the parties, decide the same afresh.

2010 CLD 1762 KARACHI.

 S. 12(2) ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte decree---Fraud and misrepresentation---Allegation of---Proof---Controversy between the parties could only be resolved after framing issues and recording the evidence.         2010  MLD 631 LAHORE.

S.12(2) ---Decree, setting aside of---Grounds for want of jurisdiction, misrepresentation or fraud---Remedy---Decree on such grounds could be set aside either on application under S.12(2) , C.P.C., or through an appeal, a revision or review, if available under law.            2010  SCMR 1097.

S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence.          2008  SCMR  236.

Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.                2008  SCMR  236.

S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.

2008  PLD  591.

S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008  SCMR  236.

Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.

2008  SCMR  236.

S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.

2008  PLD  591.

S. 12(2) ---Challenging validity of order on plea of fraud and misrepresentation---Order made by same Court can be challenged and re-called under S.12(2) , C.P.C. in the same Court provided question of fraud etc., is alleged-Separate suit is clearly barred to be filed before any other court of civil jurisdiction.

2007  PLD  66 PESHAWAR.

________________________________________________________________________________

Khula and Dower

KHULA/DIVORCE  AND HAQ MEHAR / DOWER

Citation Name : 2016 PLD 1 PESHAWAR-HIGH-COURT

Side Appellant : SAJED ULLAH
Side Opponent : Mst. SHAKEELA NAZ

S. 5 & Schd.—Muslim Family Laws Ordinance (VIII of 1961), Ss.7, 8, 9 & 10—Constitution of Pakistan, Art. 199—Constitutional petition—Talaq/khula ‘ pronounced through Jirga/arbitration—Respondent/wife filed suit for recovery of dower amount with fine, dowry articles, maintenance for herself and for minor and medical expenses against petitioner/husband claiming that petitioner had ousted her out of his house forcibly taking gold ornaments and dowry articles from her—Petitioner denied all the allegations—Trial Court, after recording evidence decreed the suit regarding dower without fine and maintenance of respondent/wife till completion of Iddat, maintenance of minor with ten per cent annual increase and medical allowance partially, and dismissed the suit regarding dowry articles—Appellate court dismissed appeals filed by both parties except dismissing the claim for recovery of medical expenses—Petitioner contended that Talaq was pronounced on basis of khula ‘ upon decision of Jirga/Arbitrators as agreed and desired by wife, and she was not entitled to recovery of dower amount as she had given her consent to proceedings of Jirga for khula ‘ which were binding on her—Wife argued that Trial Court had rightly decreed medical charges spent during delivery of minor and she had never demanded Talaq nor had she participated in any Jirga/Arbitration proceedings or gave her consent for the same—Validity—Wife had a right to seek divorce on basis of khula ‘ in lieu of returning benefits which she had received from her husband—khula ‘ could be granted through court and could not be decreed by force without consent of wife—Decision of arbitrators had no sanctity in law, and divorce on basis of khula ‘ could not be pronounced by arbitrators/Jirga nor could the decision be imposed upon wife—Divorce pronounced by husband, in circumstances, was to be treated as Talaq not on basis of khula ‘—Free consent of wife was mandatory in case of divorce on basis of khula ‘—Husband pronounced Talaq on basis of khula ‘ upon decision of arbitrators without consent of wife and the same could not be treated divorce on basis of khula ‘—Courts below rightly held that divorce pronounced by husband was Talaq and not Talaq on basis of khula ‘—Wife was entitled for recovery of dower amount along with other reliefs—Husband admitted fixation of dower amount as claimed and wife was entitled to recover the same—Trial court rightly appreciated facts. circumstances, evidence and relevant law while holding the recovery of dower—Wife produced evidence in support of her claim regarding medical expenses and appellate court had rightly reversed findings of Trial Court regarding medical treatment charges—Findings of appellate court were based on proper appreciation of evidence and needed no interference—Constitutional petition was dismissed.

Citation Name : 2015 YLR 1547 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : ASIF JAHANGIR
Side Opponent : Mst. ZAHEEN KAUSAR

Ss. 5, Sched. & 14—Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ii), (iv), (viii)—Suit for dissolution of marriage and for restitution of conjugal rights—Wife filed suit for dissolution of marriage before Family Court on the grounds of cruelty, non-payment of maintenance allowance, non-performance of marital obligations and in the alternative on the ground of khula —Husband filed suit for restitution of conjugal rights and moved contempt applications on the ground that wife had contracted second marriage during pendency of appeal—Family Court passed decree for dissolution of marriage on ground of khula , without return of dower amount as consideration for khula , and suit by husband for restitution of conjugal rights was dismissed—Wife had averred in her plaint as well as in her statement that ornaments were snatched away from her by the husband, and he did not rebut the version of wife in cross-examination, which amounted that he had admitted said fact—Witnesses had also supported the version of wife—Family Court, in circumstances had rightly appreciated evidence of parties in its true perspective—Decree for dissolution of marriage could be passed without consideration for khula ; and it was not lawful for husband to take back anything from his wife, particularly when khula was due to some fault on the part of husband—In the present case, fault of husband was that he had snatched away ornaments, and turned her out from his house, which fact was fully established by the evidence—Family Court had not committed any illegality while passing decree for dissolution of marriage on the ground of khula without consideration—Record had revealed that service upon wife was effected after contracting second marriage by her—Appeal as well as contempt application were dismissed, in circumstances.

Citation Name : 2015 SCMR 804 SUPREME-COURT
Side Appellant : MUHAMMAD ARIF
Side Opponent : SAIMA NOREEN

S. 2(viii)—West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched.—Dissolution of marriage—Grounds—Cruelty by husband—Proof—Cruelty by husband not proved—Effect—Decree for dissolution of marriage on basis of cruelty converted into khula —Wife filed a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty—Family Court found that wife had failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had become strained and there seemed no possibility of reunion, and if they were constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer, hence, their separation had become inevitable—Decree passed by Family Court was upheld both by the Appellate Court as well as by the High Court—Validity—Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of Muslim Marriages Act, 1939—Only way out and the logical conclusion was that the marriage should have been dissolved on the basis of khula in which event the wife would have to forego the dower amount—Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of khula only, and directed that mutation for the plot given by the husband to his wife as dower would now revert back to the husband—Order accordingly.

Citation Name : 2016 YLR 440 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : TAHIR HANIF
Side Opponent : SAIRA KOSAR

Dower —‘Deferred/delayed Dower ‘—Meaning—Deferred/delayed Dower was payable on demand or on the eve of dissolution of marriage by Talaq or death if no condition was specified in the Nikah Nama.

Dower —‘Mehr Ghair Muwajjal’—Meaning—Mehr Ghair Muwajjal meant deferred Dower which would become prompt on demand of wife at any time after consummation of marriage and husband would be bound to pay balance amount of Dower to the wife immediately.

Dower —Payment of—Limitation—If period was fixed for payment of Muajjal Dower then it would become payable on the completion of stipulated period.

S. 5, Sched—Dower —Payment of—Classification of Dower —Scope—Contention of husband was that Dower was deferred and same was payable in case of dissolution of marriage on his death or on divorce—Suit was decreed by the Family Court—Validity—No misreading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Family Court—Amount of Dower was to be paid within the period fixed in the Nikah Nama—Classification of Dower as prompt or deferred had no sanction behind it except for convenience of the parties—Payment of Dower was an obligation of husband and failure thereto would tantamount to injustice and inequity—Dower was demanded by the wife at the time of Rukhsati and same was agreed to be paid within one year—Family Court had rightly passed impugned judgment and decree in favour of wife—Appeal was dismissed in circumstances.

Citation Name : 2016 YLR 371 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : AZHAR BASHIR
Side Opponent : SADIA SHAFIQUE

S. 5, Sched—Suit for dissolution of marriage, recovery of maintenance charges and Dower —Cruelty—Scope—Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband—Wife had failed to prove cruelty in the present case—Family Court had correctly passed decree on the ground of ‘khula’—Husband was bound to pay maintenance charges to the wife till she was faithful to him and lived with him and if she had voluntarily left the house of her husband then she was not entitled to maintenance charges—Wife had voluntarily left the house of her husband and she was not entitled to maintenance charges—Dower once paid could not be demanded for second time—Appeal filed by the wife was partly accepted to the extent of maintenance charges—Decree of maintenance charges passed by the Shariat Court was set aside.

Citation Name : 2015 YLR 2533 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : Mst. MAZLOOM BIBI
Side Opponent : MUHAMMAD AJAZ AWAN
Dower , payment of—Scope— Consummation of marriage—Husband would be bound to pay full Dower to his wife in case of consummation of marriage and if he had not consummated the marriage, half of the Dower would be the right of bride.

Citation Name : 2015 YLR 2533 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : Mst. MAZLOOM BIBI
Side Opponent : MUHAMMAD AJAZ AWAN
S. 5, Sched. —Suit for recovery of Dower —Material contradictions were on record in the deposition of husband— Dower was never paid in the shape of land or cash to the wife—Family Court had failed to determine the conduct of husband with regard to changing of views on different stages—Husband was responsible to pay full Dower to the wife as he had consummated marriage—Husband had played fraud with wife for Dower and other ornaments—Impugned judgment and decree were not sustainable—Suit of wife had been wrongly dismissed by the Family Court—Judgment and decree passed by the Family Court were set asidi and. decree for recovery of Dower was passed in favour of wife—Appeal was, accepted in circumstances.

Citation Name : 2015 CLC 171 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : WASEEM AHMAD RATHORE
Side Opponent : Mst. FOZIA RAHEEM
S. 5, Sched.—Dissolution of marriage—Khula—Restoration of property/Dower received by the wife—Scope—Family Court dissolved marriage in consideration for khula by fixing an amount which was not incorporated in the Nikah Nama—Contention of husband was that the amount fixed by the Family Court as consideration for khula was not mentioned in the Nikah Nama—Validity—Wife could not prove that she was entitled to obtain decree for dissolution of marriage on the grounds of cruelty, non-performance of marital obligations and non-payment of maintenance allowance as her husband was out of country—Person who had asserted a point must prove the same—Wife was bound to prove her claim that ornaments were snatched away from her, by her husband or his sister or brother which she could not prove—Decree for dissolution of marriage could be passed without consideration of khula—When khula was due to some fault on the part of husband then it was not lawful for him to take back anything from his wife—Wife herself deserted in the house of her parents and she filed a suit for dissolution of marriage—Wife did not live with her husband continuously—Wife had been granted a decree on ground of khula due to hatred against her husband—No fault was pointed out on the part of husband and Family Court was bound to restore the property/Dower received by the wife—Husband was entitled to receive entire Dower amount from wife instead of amount fixed by the Family Court in case of dissolution of marriage on khula when snatching of ornaments had not been proved—Wife had not arrayed party to the sister and brother of husband against whom allegation of snatching away ornaments was levelled—When wife had demanded khula as of right then marriage had to be dissolved on restoration of what she had received in consideration of marriage when parties would not observe the limits ordained by Almighty Allah—Family Court had rightly dissolved the marriage on the basis of khula but failed to fix amount as consideration for khula as marriage was to be dissolved on the condition of repayment of Dower amount received by wife—Dower in the form of gold ornaments was paid to the wife and specific amount of ornaments had been incorporated in the Nikah Nama—Marriage of the spouses should have been dissolved in consideration for khula i.e. amount incorporated in Nikah Nama instead of amount fixed by the Family Court—Wife would be entitled to obtain a decree for dissolution of marriage on the condition of repayment of entire Dower amount incorporated in the Nikah Nama as consideration for khula—Appeal was accepted accordingly.

Citation Name : 2015 SCMR 804 SUPREME-COURT
Side Appellant : MUHAMMAD ARIF
Side Opponent : SAIMA NOREEN
S. 2(viii)—West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched.—Dissolution of marriage—Grounds—Cruelty by husband—Proof—Cruelty by husband not proved—Effect—Decree for dissolution of marriage on basis of cruelty converted into khula—Wife filed a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty—Family Court found that wife had failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had become strained and there seemed no possibility of reunion, and if they were constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer, hence, their separation had become inevitable—Decree passed by Family Court was upheld both by the Appellate Court as well as by the High Court—Validity—Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of Muslim Marriages Act, 1939—Only way out and the logical conclusion was that the marriage should have been dissolved on the basis of khula in which event the wife would have to forego the Dower amount—Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of khula only, and directed that mutation for the plot given by the husband to his wife as Dower would now revert back to the husband—Order accordingly.

Citation Name : 2015 YLR 2375 PESHAWAR-HIGH-COURT
Side Appellant : Mst. KULSOOM BIBI
Side Opponent : MUHAMMAD WASEEM
S. 5, Sched.—Limitation Act (IX of 1908), Art. 103 & S. 13—Constitution of Pakistan, Art.199—Constitution petition—Suit for recovery of prompt Dower —Limitation—Exclusion of time of defendant’s absence from Pakistan—Scope—Defendant’s plea was that plaintiff had made demand for payment of prompt Dower in November/December, 2007 while suit was filed in February 2011, which was beyond the period of limitation provided by Art. 103 of Limitation Act, 1908—Validity—Held, if plaintiff had made demand for Dower in Pakistan in the month of November/December, 2007, limitation for suit for recovery of Dower was the one as provided by Art. 103 of Limitation Act, 1908—On the contrary, if plaintiff had demanded payment of Dower outside the country, then applicability of S. 13 of Limitation Act, 1908 would be attracted—According to S. 13 of Limitation Act, 1908 period of absence of plaintiff from Pakistan would be excluded for reckoning period of limitation—In computing period of limitation prescribed for any suit, time during which defendant had been absent from Pakistan from territories beyond Pakistan under administration of Federal Government should be excluded—Section 13 of Limitation Act, 1908 made no exception for cases in which cause of action arose in a foreign country or for cases in which defendant was in foreign country at the time of accrual of cause of action—Time during which defendant had been absent from Pakistan must be excluded in computing the period of limitation—Section 13 of Limitation Act, 1908 did not state that it must be one continuous period and there was no scope for interpretation, that if defendant had at intervals been within Pakistan, plaintiff could not get benefit of said section—Even if defendant was absent for not a continuous stretch, but at intervals, still it would be the time during which defendant had been absent from country and plaintiff would be entitled to deduct total period of absence of defendant from Pakistan—Marriage between parties had taken place in the month of July, 2007 and defendant left for United Kingdom in the same month, likewise plaintiff left the country for United Kingdom after three months, meaning thereby that till month of October, 2007 spouses had left the country and shifted to United Kingdom, therefore, question of demand of Dower in November/December 2007 inside Pakistan would not arise—After three months of marriage, neither married couple was available in Pakistan nor demand of prompt Dower in November/December of 2007 was possible—Plaintiff was divorced at United Kingdom and till date none had returned to Pakistan—According to S. 13 of Limitation Act, 1908, time during which party had remained abroad, should be excluded in computing period of limitation—Suit of petitioner was within time and findings of courts below was reversed—Constitutional petition was allowed, accordingly.

Citation Name : 2015 YLR 1667 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD AAMIR
Side Opponent : NAZIA BIBI
Ss.5, Sched. & 10(4)—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for dissolution of marriage—Return/restoration of Dower amount—Wife filed suit for dissolution of marriage on the basis of “khula” before Family Court—Suit for dissolution of marriage was decreed by the Family Court with a direction to wife for returning Dower amount as mentioned in the “Nikah Nama”—Contention of the petitioner husband was that wife had received the Dower amount in shape of gold ornaments, therefore she was bound to return the Dower or cash as per prevalent rate of gold and that the order of Family Court was not sustainable—Validity—Copy of Nikahnama reflected that “Mehr” was fixed in shape of money (Thirty Six Thousand Rupees), the same had been paid in terms of gold ornaments of same value—Dower had neither been fixed in the form of gold ornaments nor the weight/description of gold ornaments was mentioned in Nikhanama, in the absence of which no valid order could be passed for return of gold ornaments—Order of Family Court was strictly in consonance with the provisions of law—Constitutional petition was dismissed.

Citation Name : 2015 PLD 216 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAHID RAHIM
Side Opponent : Mst. NIGHAT MUSHTAQ
Ss. 10(4) & 5, Sched—Constitution of Pakistan, Art.199—Law Reforms Ordinance (XII of 1972), S.3—Intra-court appeal—Dissolution of marriage on the basis of khula pending final decision with regard to controversy of return of Dower —Word “forthwith” mentioned in S.10(4) of West Pakistan Family Courts Act, 1964—Interpretation—Husband filed constitutional petition against preliminary decree for dissolution of marriage on the basis of khula which was dismissed holding that Family Court had rightly passed a decree for dissolution of marriage on the basis of khula pending final decision regarding controversy of return of Dower —Validity—Return of Dower had been asserted in the plaint by the wife but same had been denied by the husband in written statement which was fact in controversy—Wife had foregone her right to Dower in her statement for khula but said statement was not found against assertion in her plaint—Dissolution of marriage “forthwith” on failure of reconciliation had been envisaged in the proviso of S.10(4) of West Pakistan Family Courts Act, 1964 but restoration of Dower comes after the word “and” which had made the later part disjunctive—Restoration of Dower was not a condition precedent under the proviso of S.10(4) of West Pakistan Family Courts Act, 1964—Purpose of West Pakistan Family Courts Act, 1964 was “expeditious settlement and disposal of disputes with regard to marriage and family affairs and matters connected therewith”—Returning or taking back of Dower by the husband was the ‘matter relating to family affairs’ or at least same was ‘connected therewith’—No illegality, irregularity or jurisdictional defect was pointed out in the decision made by the Family Court in framing the issue with regard to Dower amount when return of the same had been asserted and denied by the parties—Intra court appeal was dismissed.

Citation Name : 2015 MLD 1767 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAFQAT ALI
Side Opponent : ADDITIONAL DISTRICT JUDGE, D.G. KHAN
S. 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Suits for recovery of maintenance allowance, dowry articles and Dower —Maintenance allowance fixed by the courts below was reasonable under the circumstances—Husband was bound to prove the factum of Talaq as asserted by him—Both the courts below had rightly found that wife was entitled for maintenance allowance for previous one year from institution of suit till Iddat period—Wife and her mother had corroborated the list of dowry articles as mentioned in the plaint—Both the courts below had rightly decided the matter of dowry articles—Amount of Dower was fixed as Rs. 2,500 and 5-marla of plot in the Nikah Nama—Husband had made evasive reply to the assertions made by the wife in the plaint with regard to Dower and had failed to bring on record any documentary evidence nor proved the payment of Rs.2,500 or 5-marla of plot for which no documentary evidence with regard to transfer of said plot was brought on the court file—Courts below had rightly fixed Rs. 200,000 as value of the plot and wife was entitled for the same—No illegality or irregularity was pointed out in the impugned orders passed by the courts below—Constitutional petition was dismissed in circumstances.

Citation Name : 2015 PLD 208 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TASAWAR HUSSAIN
Side Opponent : Mst. FARZANA KAUSAR
S. 6(5)—West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.—Constitution of Pakistan, Art.199—Constitutional petition—Polygamy—Payment of Dower in case husband contracted a second marriage without permission of Arbitration Council—Scope—Suit for recovery of maintenance allowance, and Dower was decreed inter alia on the ground that the husband had taken a second wife without obtaining permission of the Arbitration Council in terms of S.6(5) of the Muslim Family Laws Ordinance, 1961—Contention of the husband/petitioner was that suit for recovery of downer could not be decreed as the Dower was deferred and not prompt—Held, that language of S.6(5)(a) of the Muslim Family Laws Ordinance, 1961 was very clear that in case a man contracted a second marriage without the requisite permission from the Arbitration Council concerned, he shall be liable to immediately pay to the existing wife/wives, the entire amount of the Dower due, whether the same was prompt or deferred—In the present case, nothing was on record which showed that the husband/petitioner obtained the necessary permission from the Arbitration Council concerned—No illegality, therefore, existed in the impugned order—Constitutional petition was dismissed, in circumstances.

Citation Name : 2015 CLC 808 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BABAR SHAHZADA
Side Opponent : BASHARATAN BIBI
S. 5, Sched & S.10(4)—Constitution of Pakistan, Art.199—Constitutional petition—Dissolution of marriage on the basis of Khula—Suit for recovery of gold ornaments by husband given at the time of marriage—Scope—Husband’s suit for recovery of gold ornaments was decreed by the Family Court but Appellate Court returned the plaint for presenting the same before civil court—Validity—Husband filed suit for recovery of gold ornaments which were given to the wife-defendant as part of Dower —Said Dower had been mentioned in the Nikah Nama—Suit for dissolution of marriage on ground of Khula filed by the wife-defendant was decreed under S.10(4) of West Pakistan Family Courts Act, 1964—Wife-defendant was required to return Haq Mehr to the husband-plaintiff which she had received at the time of Nikah—Issues which had arisen between the parties to a marriage and all matters which would fall under the Schedule of West Pakistan Family Courts Act, 1964 could be adjudicated upon by the Family Court—West Pakistan Family Courts Act, 1964 did not restrict that only claim of Dower filed by the wife could be entertained by the Family Court—Present suit was rightly filed before the Family Court and was rightly adjudicated upon by the said court—Appellate Court was wrong to hold that husband could not file suit for return of gold ornaments before the Family Court—Impugned judgment and decree passed by the Appellate Court were set aside—Appeal filed before the Appellate Court was to be deemed to be pending which should be decided within a specified period—Constitutional petition was accepted in circumstances.

Citation Name : 2015 PLD 88 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. NABEELA SHAHEEN
Side Opponent : ZIA WAZEER BHATTI

S.5, Sched.—Muslim Family Laws Ordinance (VIII of 1961), S.5— Constitution of Pakistan, Art.199-Constitutional petition-Suit for recovery of Dower —Registration of marriage-Interpolation in entries of Nikah Register—Remedy—Presumption of truth attached to duly registered Nikahnama—Scope—Suit filed by petitioner/wife was dismissed by Trial Court and the same was upheld by appellate Court— Contention of the wife was that both the courts below have misread the . contents of Nikahnama according to which an amount of Rupees Two Lac, Ten tolas gold and house was fixed as Dower — Respondent/husband took the plea that the entries mentioned in Nikahnama were forged, fabricated and manipulated with the connivance of Nikah Registrar—Validity—Nikahnama was a public document which was registered under the provisions of Muslim Family Laws Ordinance, 1961 and as such presumption of truth was attached to the same-According to law, four copies of the Nikahnama were prepared, out of which one was kept by Nikah Registrar, second was sent to the concerned Municipal Corporation or Union Council, third copy was supplied to the bride and the fourth one was given to the bridegroom—Very object behind providing copies to all concerned was that each party could verify the entries in Nikahnama according to the terms of marriage settled between them-If the respondent/husband was of the view that Nikah Registrar had interpolated in the entries of Nikah Register, he could approach the Deputy Commissioner who was the controlling authority and could get the same corrected but he did not bother to avail his remedy against the alleged interpolation in Nikahnama—Both the courts below had wrongly dismissed the suit of the petitioner/wife and she was entitled to recover the same Dower amount, gold and a house from the respondent husband as settled between them at the time of Nikah-Constitutional petition was allowed.