Muhammad Asghar vs Adj etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Writ Petition No.2482 of 2025 Muhammad Asghar Versus Addl. District Judge, etc.

JUDGMENT

Date of Hearing: 24.03.2025 Petitioner by: Mr. Tariq Mehmood Dogar, Advocate. Assistant Attorney Mr. Ata ul Manan Malik, Advocate. General.

Respondent by: M/s Muhammad Abrar Khan and Noreen Sarfraz Khan Advocates.

MALIK MUHAMMAD AWAIS KHALID, J. Through this Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the Judgment and Decree dated 11.12.2024 passed by learned Trial Court and order dated 24.02.2025 passed by learned Appellate Court below, whereby the Appeal filed by the petitioner was dismissed in limine being badly time barred while rejecting the application for condonation of delay.

2.The facts necessary for deciding this Constitutional Petition are that Mst. Robina, respondent No.3 (the “respondent”) was married with the petitioner namely Muhammad Asghar on 08.01.2017 but rukhsati took place one year after nikah. The allegation leveled by the respondent that the attitude of the petitioner was not proper with her. He used to abuse and torture her and petitioner ousted the respondent from his house about twenty months before filing of the suit since, then the respondent was living with her parents. The petitioner was not providing her

maintenance allowance despite being a business man. At the time of nikah, dower of 5-marla house and two tola gold ornaments was fixed which had not been paid. Parents of the respondent had given her dowry articles, which were in possession of the petitioner, therefore, suit for recovery of maintenance allowance, dower and dowry articles has been filed.

3.On the other hand, the petitioner in his written statement dated 22.10.2021, took the stance that rukhsati took place after one year and nine months because the respondent was not willing upon marriage with the petitioner. Parents of the respondent had demanded that Haq Mehar be paid first then rukhsati would take place, therefore, the petitioner had paid Haq Mehar in presence of the witnesses. The respondent wanted to get marry with her cousin Muhammad Shahbaz s/o Ahmad Ali. The parents of the respondent also had knowledge of this fact. Despite reconciliation efforts of the petitioner, the respondent remained disobedient wife. About one week before filing of the suit, she had herself left his house. The list of dowry articles was fake. The parents of the respondent were poor and they had given her some clothes and crockery valuing Rs.30,000/- which she had used. Learned counsel for the petitioner contended that petitioner wanted to rehabilitate the respondent. Thus, the petitioner prayed for dismissal of the suit.

4.At closure of pleadings on 23.02.2022, pre-trial reconciliation proceedings failed and out of divergent pleadings of the parties, following issues were framed:

1.Whether the plaintiff is entitled to recover past as well as future maintenance allowance from the defendant if so what rate and for which period? OPP

2.Whether the plaintiff is entitled for dower or its alternative price from the defendant as mentioned in head-note of the plaint? OPP

3.Whether the plaintiff is entitled for dowry articles as per schedule 'Alif' annexed with the plaint from the defendant as prayed for? OPP

4.Whether the plaintiff was neither given dowry articles as per her claim in the plaint nor such dower was fixed at the time of marriage? OPD

5.Whether the plaintiff has no cause of action to file the instant suit? OPD

6.Whether the defendant is entitled for decree of restitution of conjugal rights as prayed in the written statement? OPD

7.Relief.

5.The parties produced their respective evidence. Finally vide impugned judgment and decree dated 11.12.2024, the learned Trial Court accepted the respondent's claim and decreed the suit in the following terms:-

i. The respondent is entitled to recover maintenance allowance from date of institution of suit @ of Rs.8,000/-(eight thousand) per month with 10% annual increment until subsistence of marriage. Her claim regarding past maintenance allowance is turned down.

ii. The respondent is entitled to recover 5-marla house from the defendant in Mauza Wahnjira Thal, as per nikahnama. The alternate price of the house shall be determined by the executing court. The claim of the respondent regarding two tola gold ornaments is turned down. And mutation if any qua dower house would not be of any effect.

iii. The respondent is held entitled to recover dowry articles as per list excluding articles mentioned at serial No.38 to 41 and 48 to 52. The prices of remaining articles shall be determined during execution by reducing the same to 40% on account of wear and tear.

vi. The petitioner is held entitled to decree for restitution of conjugal rights subject to provision of dower house as decreed by the court as well as maintenance allowance. If petitioner gives dower house to the respondent she would be bound to live in his house, for claiming future maintenance allowance. It is made clear that dower house shall be exclusive property of the respondent.

Being disgruntled with the Judgment and Decree passed by learned Trial Court, petitioner filed an Appeal before the learned

Appellate Court below under Section 14 of the Family Courts Act, 1964 (“the Act”), which has been dismissed on the ground that this Appeal has been filed on 20.02.2025 after the delay of 71 days of passing the impugned judgment whereas limitation for filing of limitation is 30 days. Petitioner also filed an application u/s 5 of Limitation Act 1908 (‘the Act 1908’). Learned Appellate Court on the premises that no sufficient document in order to substantiate the contentions of the application u/s 5 of the Act, 1908 have been appended, so, the application for condonation was dismissed. Resultantly appeal being barred by time is dismissed in limine.

6.Learned counsel for the petitioner submits that Impugned Order/Judgment and Decree suffer from illegality and is unsustainable in the eye of law. Further submits that the impugned judgment and order are the outcome of misreading and non-reading of the evidence and committed blatant illegality. Further argued that learned Appellate Court below has failed to appreciate the evidence and this court in exercise of Constitutional jurisdiction has ample power for reappraisal of evidence and set aside erroneous decision passed by learned courts below.

7.Learned counsel for the respondent has supported the Impugned Order/Judgment and Decree and submits that both are in consonance with law and Assistant Attorney General, while assisting the court relies on judgment titled as Mst. Nadira Shahzad Vs. Mubashir Ahmad and others (1995 SCMR 1419).

8.Arguments advanced by learned counsel for the parties have been heard and record perused.

9.This Court has scrutinized the validity of concurrent findings of Courts below and the precise proposition of law emerges on surface, what will be the scope of writ of Certiorari

against the impugned order passed in appeal under section 14 of the Act whereby appeal was dismissed being time barred, in order to address the proposition, it is pertinent to reproduce Rule 22 of West Pakistan Family Courts Rules, 1965 (‘the Rules’) which read as follow:-

Rule 22 of the Rules:

“22.(1) An appeal under section 14 shall be preferred within thirty days of the passing of the decree or decision, excluding the time required for obtaining copies thereof;

Provided that the Appellate Court may, for sufficient cause, extend the said period.

(2)The appeal shall be in writing, shall set out the grounds on which the appellant seeks to change the decree or decision, shall contain the names, description and addresses of the parties and shall bear the signature of the appellant or his counsel.

(3)A certified copy of the decree and decision of the Court where a decree is passed and copy of the decision where only an order is passed shall be attached with the appeal.”

Section 5 of the Act 1908 reads as under:-

“5. Extension of period in certain cases:- Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

A bare perusal of Rule 22 of the Rules, indicates that prescribed period of limitation for filing of an appeal under section 14 of the Act, is thirty days of the passing of decree or decision excluding the time requisite for obtaining the copies thereof. The proviso to above sub-rule (1) empowers the Appellate Court to extend the said period for sufficient cause under Rule 22 of the Rules. It is

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further noticed that section 5 of the Act 1908 has the caption "Extension of period in certain cases". It lays down that in any Appeal or application for a revision or a review of a judgment or for leave to Appeal or any other application to which the above section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within the limitation period. The term "sufficient cause" has received judicial interpretation from the superior Courts. It is to be presumed that the draftsman while framing Rule 22 was aware of the meaning of the above term "sufficient cause" assigned by the superior Courts while interpreting the same with reference to the various provisions of statutes/rules, wherein the same has been employed1.

10.A perusal of the application for condonation of delay before the learned Appellate Court did not disclose any sufficient cause for condonation of delay, and no explanation of each day of delay which is a necessary requirement to seek condonation of delay. It is settled law that limitation is not a mere technicality when limitation expires, a right accrues in favour of the other side by operation of law cannot lightly be taken away. August Supreme Court of Pakistan also observed that question of limitation being not merely a technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without sufficient cause and lawful justification which are lacking in this case2. In the instant case there was delay of 71 days in filing the appeal before learned Appellate Court but each day's delay has not been satisfactorily accounted for. It must Mst. Nadira Shahzad Vs. Mubashir Ahmad and others (1995 SCMR 1419) Government of Pakistan through Ministry of Works and another Vs. Messrs Malbrow Builders, Contractor, Sialkot (2006 SCMR 1248)

Writ Petition No.2482/2025 7

be noted that delay in filing Appeal has created vested right in favour of the respondent which cannot be lightly ignored unless strong case is made out showing sufficient cause accounting each day's delay. But in the instant case no sufficient cause has been shown for condonation of more than two months delay, therefore, the Appellate Court rightly dismissed the appeal being time barred.

11.The issue to the extent of jurisdiction under Article 199(1)(a)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 (“the constitution”) in family cases has been examined extensively by the Hon’ble Supreme Court of Pakistan. It is now well-established that the High Court can issue an order of certiorari to rectify jurisdictional errors committed by subordinate courts in family law matters. Such errors can arise when Family Courts or First Appellate Courts issue decisions without jurisdiction, in excess of jurisdiction, or fail to exercise their jurisdiction altogether. Moreover, a writ under Article 199 of the Constitution is maintainable when a Family Court or First Appellate Court acts in an illegal or improper manner3. However, in the present case petitioner was unable to explain the sufficient cause condoning delay for each day before Appellate Court. It is crucial to recognize that the High Court's jurisdiction to issue certiorari is fundamentally supervisory. This supervisory role imposes certain limitations: specifically, it prohibits the High Court from re-evaluating or questioning factual findings made by subordinate courts based on their assessment of evidence. The High Court does not engage in reviewing or re-weighing evidence that underlies the decisions made by the Family Court or its First Appellate Court. Instead, it may only nullify a decision it finds to be beyond the jurisdiction or grossly erroneous without imposing Province of Punjab through Secretary Education Vs. Kishwar Qudus Paul (2004 SCMR 571)

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its own conclusions in place of those reached by the lower courts. Furthermore, certiorari orders can be granted solely when a clear error of law is evident on the face of the record, however this does not extend to addressing errors of fact, regardless of their severity. Issues pertaining to the sufficiency or adequacy of evidence presented on specific points and the factual interferences drawn from such findings are relegated exclusively to the purview of the Family Court or its First Appellate Court. These particular matters cannot be contested before the High Court. In summary, within the specified constraints, the High Court's authority under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to issue certiorari orders in family cases can be exercised legitimately and effectively, maintaining a balanced judicial supervision while respecting the intention of the Act4.

12.It transpires from above, Rule 22 of West Pakistan Family Courts Rules, 1965 provides that an Appeal under section 14 of the Act shall be preferred within 30 days of the passing of the decree or a decision excluding the time required for obtaining the certified copies. Although it is provided in proviso to Rule 22 of the Rules that the Appellate Court may for sufficient cause extend the period. But there is nothing on record to suggest for an extension of time5. It is also observed by Hon’ble Justice B P Banerjee, Former Judge, Calcutta High Court that a writ of Certiorari is legally a matter of sound discretion and will not be granted if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party6.

C.P.L.A.No.4582/2023 (Muhammad Shakeel & others vs. Addl. District Judge, FSD and others) Amir Shahzad Vs. Additional District Judge, Multan and 2 others (2015 CLC 632) Moon Mills Ltd. v. Industrial Court Bombay M.R. Meher AIR 1967 SC 1450:1966(2) LLJ 34.

13.For what has been discussed above, the interference in the concurrent findings through this writ petition is declined while relying on judgment7 of august Supreme Court of Pakistan, the instant writ petition is without any force, therefore, it is dismissed with no order as to costs.

(MALIK MUHAMMAD AWAIS KHALID)

JUDGE

Approved for reporting

JUDGE

Waqar

Fozia Mazhar Vs. Additional District Judge, Jhang and others (PLD 2024 SC 771).