Mst. JAMEELA BEGUM Versus ADDITIONAL DISTRICT JUDGE

ORDER

The facts as narrated in the writ petition and stated by the learned counsel for the petitioner are that Mst. Jameela Begum the writ petitioner was married to Islam-ud-Din respondent No.3. The aforesaid Islam-ud-Din, the husband of Mst. Jameela had granted one-half portion of shop No.18, situated in Ihata No.4, Eastern Line, Rail Bazar, Bahawalnagar in lieu of dower to Mst. Jameela Begum, plaintiff/writ petitioner. But the strained relations between the parties compelled Mst. Jameela Begum to file a suit in the Court of learned Civil Judge on 23‑12‑1989. The suit was dismissed on 3‑7‑1993 vide judgment and decree passed by learned Civil Judge IInd Class, Bahawalnagar. The appeal filed against that judgment by Mst. Jameela Begum could not succeed in the Appellate Court, and was dismissed on 15‑11‑1995. The learned Appellate Court while deciding the appeal, upon issue No.9 with regard to maintainability, concluded that suit for declaration without prayer for possession was not sustainable. A, Civil Revision No. 15‑D of 1996/BWP was filed but was ultimately withdrawn on 8‑3‑1999 with permission to file fresh suit in the Court of learned Judge Family Court for the recovery of dower. Therefore, the present suit, before the learned Judge, Family Court, was filed on 19‑4‑1999 for the recovery of dower, which was being contested by the defendants namely Islam‑ud‑Din and Shaukat Ali in the present litigation. The impleadment of Shaukat Ali was necessitated due to alienation of the shop to Shaukat Ali, defendant No.2 through a registered sale‑deed dated. 22‑11‑1995, during the pendency of litigation, so he was arrayed as party in the aforesaid suit. The suit was decreed on 27‑5‑2000 by learned Judge, Family Court, Bahawalnagar, while the appeal filed by respondents/defendants was accepted by learned Additional District Judge on 23‑4‑2001 resulting in the dismissal of the suit of plaintiff/writ petitioner. Hence, this writ.

2. The learned counsel appearing on behalf of the writ petitioner has disputed the validity of the judgment and decree passed by the learned Additional District Judge. According to the learned counsel, the learned Appellate Court had dismissed the suit by applying Article 104 of the Limitation Act and holding the suit to be barred by limitation. It has been argued by the learned counsel for the petitioner that the suit filed in the year 1999 could not be dismissed as the provision of section 14 of the Limitation Act was available and fully applicable to the facts and circumstances of the case. The objection was raised in the previous suit by the respondent/defendant Islam‑ud‑Din that the declaratory suit in the Civil Court was not competent. So, acting on the basis of that objection, the writ petitioner had withdrawn the suit with permission to file afresh in this Court, which permission was granted with the consent of the aforesaid respondents. If Article 104 of the Limitation Act was to be applied, then the writ petitioner/plaintiff was entitled to deduct the period spent in the wrong forum in accordance with the provisions of section 14 of the Limitation Act. To support his contention he has referred to Sher Muhammad and 8 others v. Ismatullah and 3 others 1996 CLC 206, Abdul Wahid v. Haji Noor Ahmad 2002 CLC 1022, Riaz‑ur‑Rehman Khan v. Lutafhansa German Airlines, Quaid‑e‑Azam International Airport, Karachi PLD 2002 Kar. 434, Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363.

3. After relying on these citations, the learned counsel has prayed that a party should not be denied a relief on account of technicalities in the procedural law as these are framed and designed to foster the cause of justice rather then to defeat it. He has further relied upon another ruling reported in Managing Director SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 726.

4. Learned counsel has also raised another point for determination. According to him, Article 104 of the Limitation‑Act was applicable when suits for recovery of dower were filed in the Civil Court but the Family Courts Act was introduced and enforced in the year 1964. So the Article 104 of the Limitation Act, which was applicable to the suits of Civil Court , could not be applied to the suits being filed under West Pakistan Family Courts Act, 1964. To support this interpretation he has relied upon Saad Muhammad v. Mst. Zeenat and others PLD 2001 SC 128.

5. Learned counsel appearing on behalf of respondents has replied with an interesting interpretation of Order XXIII, rule 2, C.P.C. As per learned counsel for the respondents rule 2 of Order XXIII of the C.P.C., was applicable to the instant suit from where present writ petition has emerged. Explaining and interpreting Rule 2 of Order XXIII, the learned counsel has submitted that present suit has to be presumed to have been filed for the first time in the Family Court. In other words, the earlier suit filed should be ignored and by applying the Limitation Act, Article 104 of the Limitation Act would be attracted with full force to the present suit. As regards the applicability of section 14 of the Limitation Act it has been argued by the learned counsel for the respondents that the benefit of section 14 cannot be given to the writ petitioner/plaintiff because the instant suit would be considered as a first suit and the earlier suit filed would be ignored. It would be presumed that no such suit was ever filed by the writ petitioner/plaintiff. To support this interpretation, he has brought to my notice Bahadur Alam and others v. Abdul Razzaq Khan and others 2001 YLR 331.

6. Adopting another alternative plea it has been stated by the learned counsel for the respondents that section 14 of the Limitation Act if considered applicable, even then the plaintiff/writ petitioner could not get any benefit from it because at the most the wrong advice of the counsel could be agitated by the plaintiff and in many rulings delivered by the apex Court of this country, the wrong advice of a counsel was not considered to be a sufficient cause for taking advantage of provisions of section 14 of the Limitation Act. For this proposition he has cited Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946, Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC 228 and Abdul Majeed and another v. Ghulam Haider and others 2001 SCMR 1254.

7. After scanning the record, analyzing valuable arguments addressed by both the learned counsel, in pros and cons of the case, I have drawn the following conclusions:‑‑

(i) The facts between the parties are almost admitted. The filing of declaratory suit in the Civil Court in the year 1989, its dismissal from the First Court and affirmation from the learned Appellate Court and withdrawal from this Court with permission to file afresh suit in C.R. No.15‑D of 1996 on 8‑3‑1999, has not been denied by the learned counsel for the respondents. The question, which boils down in the case is as to whether the second suit filed in the Family Court was barred by any provision of law of limitation or Order XXIII, rule 2 of the C.P.C., was attracted to the case.

(ii) Before pondering over the law of limitation, it would be proper to examine the applicability of Order XXIII, rule 2 of the C.P.C., to the instant case. No doubt the earlier suit was withdrawn by the writ petitioner/plaintiff under Order XXIII, rule 1, C.P.C., yet rule 2 of Order XXIII of the C.P.C., cannot be applied to the suits filed under Family Courts Act, 1964, because of the express provision of section 17 of the West Pakistan Family Courts Act, 1964. The aforesaid section has I clearly excluded the provisions of the Code of Civil is Procedure, 1908 to be applied except sections 10 and 11 before the Family Court. So, rule 2 of Order XXIII of the C.P.C. cannot be involved to be used to the suit filed under the Family . Court Act.

(iii) Even if rule 2 of Order XXIII of the C.P.C., is held to be applicable to the instant case, it would not render any help to the respondent's counsel. Because the words used in rule 2 are "the plaintiff shall be bound by the law of limitation in the same manner as if the first suit has not been instituted". The words law of limitation cannot be restricted up to the extent of attracting and applying article, 104 and excluding the beneficial provision of section 14 of the imitation Act. The words "law of limitation" would include the whole Act including sections and its schedules unless contrary provision is found in the Limitation Act itself excluding the application of any section or article. The wrong interpretation placed by the learned counsel for the respondents that Article 104 of the Limitation Act was applicable and the provision of section 14 was to be excluded for the instant suit, to my mind is misconstruction and incorrect interpretation of the words of " law of limitation". No such restricted interpretation can be allowed without any express provision deriving its source from the wording of rule 2 ;of Order XXIII of the C.P.C.

(iv) The next question, which arises is whether benefit of section 14 of the Limitation Act can be extended to Mst. Jameela Begum, writ petitioner? If the law of limitation has to be applied to the suits filed before the Family Court then not only the articles but also the sections of the Limitation Act, 1908 are to be applied IL unless expressly or impliedly barred by any provision of law. The arguments of the learned counsel for the writ petitioner that Limitation Act does not apply to the Family Courts cases as the Limitation Act, 1908 had come into existence in the year 1908 while the West Pakistan Family Courts Act was enacted and enforced in the year 1964, is fallacious. This reasoning is in fact not based upon any sound reason and cannot be approved by any stretch of imagination. The laws made as back as in the year 1872 or prior to it but unless those laws are repealed or annulled by any express or implied legislation of necessary intendment, no law vanishes from the statute book due such reason and it has to remain effective and the cases are to be governed by those laws which are brought thereafter. Mere influx of time cannot be the causation of removing the law from the book of statutes. Therefore, this argument of the learned counsel is not acceptable.

(v) The other contention of the learned counsel that section 14 of the Limitation Act was applicable to the suit filed by the writ petitioner, as she had been working under bona fide belief that the Civil Court was competent, when she had instituted the suit in the Civil Court for getting declaration in that Court, so the period spent from the date of institution till the culmination of those proceedings in this Court, may be excluded has got some weight. It is an admitted fact that when the suit was filed by Mst. Jameela Begum in the Civil Court for obtaining declaration of the ownership in the property in dispute, it was the respondent No.3 who had raised the objection that the suit was not competent in the Civil Court . In para. 3 of the written statement filed by Islam‑ud‑Din in the earlier civil suit, which has been exhibited as Exh.P.2 in the instant suit, the above noted objection was raised. Acting upon that objection representation, revision and the previous suit were withdrawn with consent of respondent No.3 and filed in the Family Court. In Sherin and 4 others v. Fazal Muhammad and 4 others 1995 1 SCMR 584, Honourable Supreme Court of Pakistan had condoned the period spent before the learned Appellate District Court, when the appeal .was entertained and had remained pending in that Court but was not returned immediately. The apex Court had held that by entertaining the appeal and keeping it with that Court, it was an act of the Court also, which was not to prejudice any party because the learned Court, could have returned the appeal within the limitation.

The earlier suit, filed by the writ petitioner was dismissed by learned Civil Judge on 3‑7‑1993 (Exh.P.3) while the appeal filed was although dismissed on 15‑11‑1995 by learned Additional District Judge, Bahawalnagar (Exh.P.11) yet it was held that the plaintiff was entitled to the grant of dower on the basis of entries in the ' Nikahnama' and even due to the statement of respondent No.1 in that suit. 'But to obtain such dower, which was considered deferred, the plaintiff was directed to file the suit in the Family Court. From this judgment, it can easily be held that dower entitlement of the plaintiff to the property in dispute was confirmed.

On 8‑3‑1999, the suit was withdrawn by the learned counsel for the petitioner, Mst. Jameela Begum with permission to file a fresh suit before the Family Court for the recovery, of dower. Learned counsel for the respondent had also not raised the objection and was a consenting party to the grant of permission for filing a fresh suit. So, the suit filed in this Court was in fact, on, the basis of consent of both the parties that such a suit was competent before the Family Court. Therefore, present respondent No.3 or respondent No.4 cannot raise any objection with regard to the jurisdiction of this Court because their representation was the cause to withdrawns the suit from Civil Court and to bring it to the Family Court.

(vi) The learned counsel appearing on behalf of the respondents have raised an objection that the benefit of section 14 of the Limitation Act was not claimed by the petitioner: I have perused the judgment of the learned Judge, Family Court in which this plea was raised and taken note of by the aforesaid Court vide para. 13 of the judgment of the learned Judge, Family Court and para. 12 of the judgment of the learned Additional District Judge. So, this question has not been raised for the first time in this Court.

(vii) According to the learned counsel for the respondent and the learned Additional District Judge, Article 104 of Limitation was applicable to the present suit and as the divorce was admittedly pronounced in the year 1994, the suit filed after three years from that divorce in the year 1999 was barred by time. There are two Articles in the Limitation Act, 1908. Articles 103 and 104 have provided three years for the suits by a Mahommadan for exigible dower and deferred dower respectively. Question crops up as to whether this suit was a suit for recovery of Mu'ajjal or Muwajjal dower and had fallen within the scope of above referred Articles H or not? The frame of the suit has to be seen for this, which was filed in the Civil Court and in the Family Court. Earlier suit filed in the Civil Court had contained the following words:‑‑

In the suit before the learned Family Court the words used are as under:--------

(viii) From the above noted Urdu version, it is clear that the plaintiff had filed the suit for obtaining declaration with consequential relief in the Civil Court and the same prayer was made by her in the Family Court. Other prayers for grant of permanent injunction and for possession as prayed for were the consequential relief to a declaratory suit. Therefore, it can easily tie determined from this discussion that the suit‑is not for the recovery of dower but the plaintiff is striving for a declaration that she was owner of the property in dispute on the basis of dower. In other words, the plaintiff was claiming dower to have been paid to her by her husband in the shape of one half share of the shop and that she was owner of that shop in dispute and she was seeking the relief of declaration with consequential prayers. Therefore, question arises as to whether Article 103 and Article 104 of the Limitation Act shall apply to this suit? I dare to differ with the findings of both the learned Courts below on this point. In fact, this was not a suit for the recovery of dower, prompt or deferred. But was a suit for declaration of ownership of a property, which was granted to the writ petitioner/plaintiff K through the entries in 'Nikahnama' as a dower. To support this view as, to whether entries of Parat Nikah had alienated/ transferred the shop in dispute to the writ petitioner, or not the entries of Column NosA4 and 1,5 are reproduced as below:‑‑

It is pertinent to point out here that the words have started from column of Serial No. 14 and were finished against column of serial No.15 of Parat Nikah. In Serial No.15 the words are:‑‑‑

The entry going up to this Serial No.15 shows the intention of the parties that the disputed property had been given over to the writ petitioner in lieu of dower and it was neither prompt nor deferred dower, otherwise the entries as against serial No. 15 would not have gone to and entries made against it. Another supporting point, which is coming out from the entries of Nikahnama is that the words are " ﻪﻳﭙﻭﺮ2000ﻎﻠﺒﻤ " In other words this disputed shop was given over to the petitioner at the time of marriage for the dower amount 6f Rs.2,000. So from all these facts and circumstances, it is evident that the writ petitioner was granted the disputed property in dower through this Nikahnama, which is an admitted document between the parties. As to what is the value of entries in Nikahnama, the following‑citation has laid down that the entries in Nikahnama are sufficient proof of transfer of the property in dispute and it requires no registration or any other document for completion:‑‑

"Anwar Khan and 16 others v. Mst. Sahibzada and 3 others 1989 CLC 1327, Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 and Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399".

Therefore, the conclusion is that the petitioner had become owner of the property in dispute but she had to knock the door of the Court when her right of ownership/proprietorship in the disputed property was denied/refuted by her husband. In fact, this would be a declaratory suit regarding the affirmation of rights in the disputed property based on the dower along with the consequential relief prayed for by the plaintiff. And for that purpose, both these Articles 103 and 104 of the Limitation Act are not applicable and residuary Article 120 of the Limitation Act, 1908 would apply with full force to the facts and circumstances of the case. It is settled that each time the right is denied, or the person whose right is being disputed, can file a suit within six years from the denial/accrual of that right. The denial of right of ownership of the petitioner even in the present suit by filing the written statement can be treated a fresh cause of action for the plaintiff to get the decree from this Court, which would be within limitation as provided under Article 120 of the Limitation Act and if the divorce is considered to be the accrual of the right even then the suit filed in the year 1999 from 1994 (the year of divorce) would be within limitation as provided by Article 120 of the Limitation Act.

8. As regards the subsequent transfer by Islam‑ud‑Din in favour of respondent No.4, Shaukat Ali, this transfer was admittedly made during the pendency of the litigation and it could not be held to be a bona fide one.

9. It may be pointed out here that the law favours a person especially weaker sex, to extent to her help when she is found of being deprived of her due right. The right of dower being a lawful right is not only granted by the law of the land but by the tenets of Islam. The dower is a debt upon the husband, who cannot avoid the payment of it, on the hyper technicalities. He is bound to pay the dower as settled. Therefore, I declare the impugned judgment and decree passed by the learned Additional District Judge, which has reversed the judgment and decree of the Family Court to be illegal and unlawful. Consequently, the suit of the plaintiff is decreed with costs through out.

M.I./J‑46/L Petition accepted.