JAVED IQBAL BUTT vs Mst. NIGHAT ARA AND Another
This petition for leave to appeal arose from a matrimonial dispute where the petitioner challenged the territorial jurisdiction of the Family Court at Lahore to try a suit for dissolution of marriage. The petitioner contended that the marriage occurred in Gujranwala, where the parties resided, and thus the Lahore court lacked jurisdiction. The petitioner sought to have the issue of jurisdiction decided as a preliminary issue before the trial proceeded on the merits. The trial court, the High Court, and the Intra Court Appeal bench all rejected this plea, reasoning that the evidence required to establish the court's territorial jurisdiction was inextricably linked to the evidence required to prove the cause of action on the merits. The Supreme Court of Pakistan upheld these decisions, affirming that when the evidence for a jurisdictional issue overlaps significantly with the evidence for the merits of the case, it is appropriate for the court to try both issues together rather than deciding jurisdiction as a preliminary issue. The petition for leave to appeal was consequently dismissed.
- Is a Family Court required to decide the issue of territorial jurisdiction as a preliminary issue before proceeding to the merits of the case?
- Can a court decline to treat jurisdiction as a preliminary issue when the evidence for jurisdiction and the evidence for the merits of the suit are the same?
ORDER, NASIM HASAN SHAH, J -Leave to appeal is sought against the order dated 11-1-1982 passed by a Division Bench of the Lahore High Court, Lahore in Intra Court Appeal No. 1 of 1982.
2. The relevant facts are that the petitioner and respondent No. 1 were married at Gujranwala on 19- 12-1980. Respondent No. 1 filed a suit for dissolution of marriage before the Civil Judge at Lahore.
Herein she claimed that the cause of action arose at Lahore, the parties also resided together at Lahore and, therefore, the Family Court at Lahore had jurisdiction to try the suit. In the written statement filed by the defendant (petitioner herein) he challenged the territorial jurisdiction of the Court on which an issue was framed (Issue No. 1) as to whether the Family Court at Lahore had the territorial jurisdiction to try the suit. Other issues were also framed on the merits.
3. The petitioner moved the trial Court with the prayer that the Court should decide the issue of jurisdiction before deciding the other issues on the merits as, according to him, the question of jurisdiction would decide the fate of the whole suit. The learned trial Court, however, by its order dated 11-11-1981, rejected this plea on the ground that the evidence in respect of the cause of action would be the same which was to be led to establish that the Family Court at Lahore had the jurisdiction to try the suit.
4. The petitioner filed a writ petition in the Lahore High Court to challenge the above order but a learned Single Judge of the said learned Court dismissed the said petition on the ground that the decision of the trial Court declining to treat and decide issue in respect of its jurisdiction as a preliminary issue, without taking down evidence thereon, was well within its jurisdiction. The petitioner, therefore, filed an Intra Court appeal to challenge this order, which, too, was dismissed on the ground that the averments in respect of cause of action contained in paras. 4 and 10 of the plaint needed the same evidence as was required to establish that the Court at Lahore had jurisdiction. It was accordingly held that the Family Court was, therefore, right in keeping both the issues together for trial. Having failed everywhere the petitioner has now moved this petition for leave to appeal.
5. Mr. Iftikharul Haq Khan, learned counsel for the petitioner, has reiterated the arguments which were pressed before the Courts below, namely, that the Family Court at Lahore had no jurisdiction in the matter, since the parties were- married at Gujranwala, resided there together and the parents of respondent No. 1 were also residing there and that if the issue of jurisdiction was decided in the first instance it would be conducive to the interests of justice, in fact the proper thing to be done.
6. However, we consider that the Courts below were right in thinking that the evidence required to prove the issue of jurisdiction would be the same as that which was required to establish whether the respondent did indeed have any cause of action. Hence the issue of jurisdiction and the issue on the merits had to be considered together.
7. This petition must, therefore, fail and is dismissed hereby.
Cited by 1 case
- I.C.I.C. vs Mian RAFIQ SAIGOL and others 1996 PLD Lahore 528