Afzal Hussain vs Mst. Irshad Bibi etc.

Form No: HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

W.P No.3883/2025

Afzal Hussain Versus Mst. Irshad Bibi etc. S.No. of order/ Date of order/ Order with signature of Judge and that of Proceeding Proceeding parties or counsel, where necessary. 09.04.2025 Mr. Muhammad Hayat Khan, Advocate for the petitioner.

Respondent No.1, namely, Mst. Irshad Bibi (“the respondent”) instituted a suit for recovery of her dower and maintenance allowance, which was contested by the petitioner and after framing of issues and recording of evidence, the suit was decreed in terms of judgment dated 30.10.2024, against which only the petitioner preferred an appeal that was dismissed through judgment dated 16.01.2025, however, the Appellate Court below observed that the Trial Court while deciding issue No.1 (regarding dower) held the respondent entitled to recover 01-tola gold ornaments but in the decree sheet, the same could not be incorporated and a direction was passed to the Trial Court to do the needful in accordance with law.

2.Learned counsel for the petitioner submits that the findings of the Courts below are erroneous and against the record, more so, when the appeal against the decree of the Trial Court was preferred by the petitioner only, and the Appellate Court below had no authority to grant the relief (to the tune of gold ornaments), which was denied by the Trial Court.

3.Arguments heard. Record perused.

4.Learned counsel for the petitioner could not deny that a meager amount of maintenance i.e., Rs.3,000/- per month with 10% annual increase was granted to the respondent till

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her entitlement, against which appeal was not maintainable. It is settled law that where the statute explicitly puts a bar on assailing an order by way of filing appeal, revision or so, constitutional jurisdiction of this Court cannot be invoked as it will tantamount to circumvent the intent and will of the legislature and frustrate the explicit provision of law. In this regard, case reported as Amjad Ali v. Mst. Shaheen Bibi and others (2020 MLD 2011 Lahore) is referred.

5.It has also not been denied that in terms of the nikahnama of the parties, 01-tola gold ornaments and a house was agreed as dower of the respondent. The petitioner gave talaq to the respondent and, hence, the respondent was entitled to claim her dower, in respect of which, issue No.1 was framed in the following terms: “1. Whether plaintiff is entitled to recover dower as mentioned in headnote of plaint as prayed for?OPP” The said issue was decided in favour of the respondent in following terms:

“12. From above said discussion, it is concluded that the plaintiff through cogent and reliable evidence in shape of oral and documentary evidence, proved this issue, therefore, this issue is decided in favour of the plaintiff with the finding that she is held entitled to get gold weighing one tola and constructed house measuring 10-Marla from the defendant in the vicinity where the defendant is residing.”

(Emphasis supplied)

However, in the relief part of the judgment dated 30.10.2024 and the decree sheet prepared pursuant thereto, the respondent was only given the dower house but not the gold ornaments, which error on part of the Trial Court has

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been rectified by the Appellate Court below, even though the respondent did not prefer an appeal. Whether the said act on part of the Appellate Court below was justified is the nub of the matter.

6.The lapse in question was a procedural error on part of the Trial Court as it failed to incorporate complete relief in the concluding paragraph of its judgment and prepare the decree sheet properly, despite the decision rendered in favour of the respondent. Suffice to observe that appeal is continuation of the suit and the Appellate Court below, in exercising its jurisdiction, noted this procedural deficiency and rectified it, ensuring that the judgment was fully implemented as intended by the Trial Court, a step that is not only procedurally permissible but also necessary to give effect to the substantive relief already granted by the Trial Court while deciding issue No.1. In this context, even though the respondent did not file a separate appeal concerning the Trial Court’s procedural lapse, the Appellate Court’s below intervention was justified. The Courts have inherent powers to make orders necessary for the ends of justice or to prevent abuse of the Court’s process. The present constitutional petition does not present a valid ground for challenging the act of the Appellate Court below, as this Court cannot lose sight of the fact that judgment of the Trial Court was rendered under the West Pakistan Family Courts Act, 1964, which is specifically designed as beneficial legislation, with the aim of protecting the rights of females in family disputes. The Trial Court’s failure to properly draw the decree sheet is a procedural error. The Appellate Court below, in its exercise of jurisdiction, corrected this lapse to ensure the proper

W.P No.3883/2025

execution of the Trial Court's judgment. This approach is appropriate and consistent with the overarching objectives of the family law—ensuring the swift and accurate enforcement of rights, particularly those of the females.

7.Moreover, the order of the Appellate Court below serves a practical purpose. It prevents the prolongation of the litigation. If procedural errors of the Trial Court are not corrected at the appellate stage, the issue would likely be raised again during the execution phase of the decree, which would not only delay the resolution of the matter but would also risk of creating a situation where the judgment debtor—the petitioner in present case, could exploit any ambiguity or error in the decree of the Trial Court to delay or avoid the compliance. This would be unjust, especially when the decree holder—the respondent has already been granted substantive relief, by the Trial Court, in terms of the decision on issue No.1 qua her dower. Nikahnama is registered document and carries presumption of truth. No evidence was produced to substantiate that the respondent waived her right of dower or the same was given by the petitioner to the respondent. Therefore, findings of the Courts below are in accordance with law.

8.In view of the above discussion, this petition is devoid of any merits, hence, the same is dismissed in limine. A copy of this order be transmitted to the Trial Court.

(ANWAAR HUSSAIN)

JUDGE

Approved for reporting

Judge

AB**