Shah Faisal etc Vs Mst. Zainib etc

Judgment Sheet

PESHA WAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Regular First Appeal No.42-A/2025 Shah Faisal etc... (Appellants) versus Mst.Zainab etc... (Respondents) Present: Mr. Ikram-ul-.Qayyum, Advocate for appellants.

Ms Kiran Ayub Tanoli, Advocate for respondents.

I)ate of hearing: 19,02.2025.

JUDGMENT

AURANGZEB, J.- Through the instant Regular First Appeal filed under section 8 of The Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019, appellants have prayed for the following relief:

"On acceptance of instant appeal, impugned order dated 16.01.2025 passed by Ombudsperson K.P.KI respondent No.2 may graciously be set aside and declared null and void."

(S. B.) Hon 'bie Mr.Justice Aurangzeb

2.Precisely, .the facts of the case giving rise to the filing of instant appeal are that respondent No.1 Mst.Zainab 'filed a civil suit against petitioners Shah Faisal etc in the year 2021 qua possession of subject house through their ejectment and recovery of rent @ Rs.5000/- per month on the ground that the suit property/house is the sole ownership of respondent No.1 and her children. During the pendency of that suit, respondent No.1 also filed a complaint to the Provincial Ornbudsperson at Peshawar under section 7 of The Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 (hereinafter is to be referred as The Act of 2019), for enquiry and action against the respondents, possession of the suit property and direction to the respondents to pay the rent @ Rs.5000/- per month from December 2020. On her complaint, Ombudsperson directed Deputy Commissioner, Mansehra to conduct inquiry which was accordingly conducted and report was submitted with advise to the complainant to (S. B.) Hon 'ble Mr.Jusiice Aurangzeb

approach the Civil Court, however, the complainant filed objection against that report and in the wake thereof second inquiry was ordered to be conducted which was accordingly caused to be conducted by Deputy Commissioner, Mansehra and the same was submitted to Ombudsperson/respondent No.2 vide letter No.4295-96/DKI Ombudsperson and on the basis of second report, complaint of the respondent No.1 was accepted by the Ombudsperson Khyber Pakhtunkhwa through the impugned order dated 16.01.2025, hence, the instant Regular First Appeal.

I)

Though this case was in motion, however, Ms Kiran Ayub Tanoli, Advocate put her appearance and submitted her Power of Attorney on behalf of the respondent No.1 and showed her willingness to argue the case, therefore, arguments of the learned counsel for the parties heard at considerable detail and record perused with their valuable assistance.

Perusal of the record transpires that respondent No.1 Mst.Zainab filed a civil suit against petitioners Shah Faisal etc in the year 2021 for possession of subject house through their ejectment (S. B.) Hon 'ble Mr. Jusilce Aurangzeb

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and recovery of rent @ Rs.5000/- per month on the ground that the suit property/house is her and her children's sole ownership. She further pleaded that the suit house was rented out to the petitioners after the Earthquake of 2005 and they had been paying rent till December 2020. During the pendency of that suit, she also submitted an application for submission of rent before the Court, however, her that plea has been turned down upto this Court vide order dated 18.12.2023 passed in Civil Revision No.354-A12023. Meanwhile respondent No.1 filed a complaint to the Provincial Ornbudsperson at Peshawar under section 7 of The Act of 2019, inter alia, for the same reliefs which she had already sought through her civil suit pending adjudication, however, by not disclosing in her complaint the fate of aforesaid Civil Revision No.354-A/2023 whereby her prayer qua direction to respondents to deposit rnonthly rent Rs.5000/- per month before the Court was turned down by this Court vide order dated 18.12.2023 by observing that as per record both the parties are recorded co-sharers as spelling (S. B.) Hon 'ble Mr.Justice Aurangzeb

out from the written statement furnished by the respondents (petitioners herein) and that claim qua ownership-curn-possession over the disputed house/property is yet to be established. It was also noted that as per available record the aforesaid order of this Court has not been assailed by respondent No.1.

It is also part of the record that on the other hand petitioners have also filed a suit for declaration etc against respondent No.1 etc in the year 2024 in respect of the subject matter pleading therein that they are owners in possession of the suit property being co-sharers as the same devolved upon them as inheritance of their father.

In view of the above, since undeniably proceedings in civil Court at Mansehra in respect of the same subject matter were pending adjudication, therefore, the complainant has filed instant appeal under section 7 of The Act of 2019. Before deciding the fate of instant appeal, we deem it necessary to reproduce the Preamble of The Act of 2019 as under:

(SB.) Hon 'ble Mr.Justice Aurangzeb

"AN

ACT

to protect and secure the rights of ownership of women in the property in the Province of Khyber Pakhtunkhwa.

WHEREAS, it is expedient to provide for the protection of the rights of ownership and possession of properties owned by women, ensuring that such rights are not violated by means of harassment, coercion, force or fraud and for the matters connected therewith or incidental thereto"

Similarly, section 7 of The Act of 2019 being most relevant for the present controversy is reproduced as below:

7.Complaint to the Ombudsperson in case proceedings in a Court of law ' are pending.--- (1) Where proceedings - in a Court of law are pending in relation to the ownership, or possession of any property claimed to be owned by a woman, she may file a complaint under this sub-section to the Ombudsperson:

Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization may also initiate action under sub-section (1) in relation to the ownership or possession of a woman's property, even if proceedings are pending in a Court in respect of that property.

(2)The Ombudsperson shall make a preliminary assessment of the complaint under sub-section (1), whereafter he may, if the matter reQuires (S. B.) Hon 'ble Mr. Justice Aurangzeb

further probe or investigation, refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary, and issuing notices to the complainant and her adversaries, conduct a summary enquiry and submit a report within fifteen days to the Ombudsperson.

If the matter does not require any detailed probe, investigation or recording of evidence, the Ornbudsperson may, after calling any record, if deemed necessary, may file a report in the Court of law, in which the case is pending, recommending that the proceedings in the Court may be terminated or put in abeyance unconditionally or subject to any Court order and the Ombudsperson be permitted by the Court to take further proceedings under this Act.

Before filing of the report under sub-section (3), the Ombudsperson shall I) - call upon the 'complainant and her L.A,1 adversaries to submit objections, and conduct a hearing and pass order, preferably within thirty days of the hearing, as to whether the Ombudsperson may or may not file a report under sub- section (3).

In case the Ombudsperson passes an order of not filing a report under sub- section (3), he may advise the complainant to pursue the proceedings in the Court of law and terminate the complaint.

The Ombudsperson upon receiving the report under sub-section (2), may further conduct such summary inquiry and call for such record as he may deem fit.

(S. B.) Hon 'bie Mr.Justice Aurangzeb

The very Preamble of The Act of 2019 reads that the same is enacted to protect and secure the rights of ownership of women in the property owned by them and not to judicially adjudicate and ascertain title/ownership of a party to immoveable property particularly when the same is already pending adjudication before a civil Court.

So far as the instant complaint filed under section 7 of The Act of 2019 is concerned, subsection (1) of this section lays down that where proceedings in a Court of law are pending in relation to the ownership or possession of any property L claimed to be owned by a woman, she may file a complaint to the Ombudsperson. Bare reading of section 7 of The Act of 2019 reveals that it provides two different procedures dealing with two types of matters i.e. the matterwhich requires further probe or investigation (under subsection (2) of section 7) and the matter which does not require any detailed probe, investigation or recording of evidence (under subsection (3) of section 7). As

(S. B.) Hon 'ble Mr.Jusiice Aurangzeb

Under subsection (2) of section 7 of The Act of 2019, if the matter requires further probe or investigation, then Ombudsperson shall make a preliminary assessment of the complaint under sub- section (1), whereafter he may refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary, and issuing notices to the complainant and her adversaries, conduct a summary enquiry and submit a report within fifteen days to the Ornbudsperson.

9.Since undeniably both the parties have filed their respective suits before the civil Court at Mansehra in respect of the same subject matter which were pending adjudication for determination of their ownership/title to suit property before f passing the finaF (impugned) order of Ombudsperson Khyber Pakhtunkhwa dated 16.01.2025 and are still pending adjudication, therefore, the matter in hand absolutely requires and involves intricate adjudication, in-depth and detailed probe, investigation or detailed recording of evidence and thus instant complaint would at the (S. B.) Hon 'ble Mr.Jusiice Aurangzeb

most be dealt with only by virtue of subsection (2) of section 7 of The Act of 2019. Though under subsection (2) of section 7 of The Act of 2019 words "if the matter reQuires further probe or investigation" occur, however, the fact remains that words "or recording of evidence" are omitted by the legislature, for the reason that recording of pro and contra evidence in proceedings pending adjudication before a civil Court qua determining the title/ ownership of a party to immoveable property, is the sole domain of civil Court. It would not be out of place to mention here that subsection (6) of section 7 of The Act of 2019 reads that the Ombudsperson upon receiving the report under sub-section (2), may further conduct such summary ingui and call for such record as he may deem fit. As such, this subsection also does not confer mandate upon the Ornbudsperson with respect to recording of pro and contra evidence in proceedings pending before a civil Court.

10.Subsection (3) of section 7 of The Act of 2019, provides that if the matter does not require any detailed probe, investigation or recording of (S. B.) Hon 'ble Mr.Justice Aurangzeb

evidence, the Ombudsperson may file a report in the Court of law, in which the case is pending, recommending that the proceedings in the Court may be terminated or put in abeyance

unconditionally or subject to any Court order and the Ombudsperson be permitted by the Court to take further proceedings under this Act. However, since the subject matter regarding which two civil suits are pending, requires detailed probe, investigation or recording of evidence, therefore, the aforesaid recommendations under subsection (3) are not warranted and thus subsection (4) of section 7 of The Act of 2019 which deals with subsection (3) also becomes irrelevant in this case. It is also by now settled jurisprudence that where language of the Statute is clear and unambiguous, the law enunciated therein should be interpreted by assigning it the plain and ordinary meaning. The Supreme Court of Pakistan in recent cases' has observed that when the intent of the legislature is manifestly clear from the wording of the statute, the Government of Khyber Pakhtunkhwa and others v. Abdul Manan and others (2021 SCMR 1871), 2022 SCMR 472 and 2023 SCMR 1502.

(S. B.) Hon 'b/c MrJust ice Aurangzeb

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as it is by assianing the

unless it

es grave injustice which may be irremediable or leads to absurd situations which could not have been intended by the legislature. Only then, the Court may see the mischief which the legislature sought to emedy and interpret the law in a manner that meets he intent of the legisIture. We are therefore of the 'iew that the conclusion to this effect reached by the High Court is quity erroneous and unsustainable in law.

1.It is important to mention here that the

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i1nechanisrn for partiticn in case of any agriculture jroperty which is assessed under the West Pakistan Land Revenue Act, 1967, has been provided under ection 135 Chapter XI of the West Pakistan Land levenue Act read with paragraph No.18 of the Land Record Manual. However, if immovable property is outside the scope of West Pakistan Land Revenue jct, then under Section 9 of the Code of Civil 1rocedure, 1908 read with the relevant provisions of (S. B.) Hon 'ble Mr.Justice A urangzeb

The Partition Act, 1893, the claimant can approach the civil court for separation of the share/partition of the disputed property. The mode of delivering judgment in a suit for partition is provided under order XX rule 18 Code of Civil Procedure, 1908.

Section 54 Code of Civil Procedure, 1908 reads that where the decree is for partition of an undivided estate, assessed to payment of revenue to government or for the separate possession of a share of such an estate, the partition of the estate or separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him, whereas, under Order XX fl rule 18 sub-rule (2) CPC, if the dispute relating to separation of share relates to other immovable property and if the partition or separation cannot be conveniently made without further inquiry, the court may pass a preliminary decree declaring the rights of the several parties in the joint property.

12.In view of above when suit property also includes constructed house/rooms etc though neither address of the suit property nor Khasra Number is specifically given by respondent No.1 either in her (S. B.) Hon 'ble Mr.Justice Aurangzeb

suit or instant complaint then the entitlement of the suit property cannot be determined without going through the aforesaid mechanism as provided under the relevant laws on the subject, for no such mechanism has been provided in The Act of 2019 for the determination of the share of each co-sharer/ co-owner in the joint property, however, despite that the learned Ornbudsperson has passed the impugned order dated 16.01.2025 whereby house in issue measuring 01 Kanal - 71/4 Marlas was held to be the ownership of respondent No.1/complainant which, on one hand, is not only a parallel judicial order despite that Office of Ombudsman is neither a Court nor a judicial tribunal within the scope of Article 175 of The Constitution of Islamic Republic of Pakistan while on the other it is in conflict with Article 175(2) of The Constitution. In a case2, the Supreme Court of Pakistan has observed that the Constitution has clearly set out the limits for each organ of the State and crossing these limits amounts to encroaching upon the domain of the other and Shahtaj Sugar Mills Ltd. and others vs. Government of Pakistan through Secretary Finance and others (2024 SCMR 1656) (S. B.) Hon 'ble Mr.Jusiice Aw'angzeb

consequently breaching the provisions of the supreme law. As already noted, making the law falls exclusively within the domain of the legislature.

The judicial branch has no jurisdiction to promulgate laws and, therefore, stringent rules and principles have been laid down in the context of the exercise of the power of judicial review, relating to examining the vires of a law promulgated by the legislature. The foundational rule of interpretation is a presumption in favour of constitutionality.

In the wake of aforesaid discussion and exposition of law on the subject, in our humble view, the only mandate left with the Ombudsperson was under subsection (5) of section 7 of The Act of 2019 to advise the complainant to pursue the proceedings in the Court of law and terminate the complaint.

Since instant appeal is deemed to be in ontinuation of complaint of respondent No.1 Mst.Zainib, therefore, on acceptance of this appeal, impugned order of worthy Ombudsperson is set aside ior want of legal backing, complaint of respondent No.1 stands terminated in terms of subsection (5) of (S. B.) Hon 'ble Mr.Jusiice Aurangzeb

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section 7 of The Act of 2019 and she is advised to pursue the proceedings already pending in addition to other remedies available under the law, in the Court of law.

Needless to mentioned that observations recorded hereinabove are with respect to the legality of the order of worthy Ombudsperson and shall in no way prejudice an independent mind of learned trial court which shall decide the matter in accordance with law and merits of the case.

ANNOUNCED.

(Jarnil)

JUDGE

(SB.) Hon able Mr Justice Aurangzeb