Muhammad Yaqoob Khan & others Vs Mst. Bibi Tahira

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNUBENCH

(Judicial Department)

W.P No.401-B/2023

Muhammad Yaooob Khan & others Vs.

Mst Bibi Tahira Present:

Mt. Sudat Naeem, Advocale fot pelltioners. Mt. Khash Amb, Khattu*. Advocale for rcspondent.

Date of hearin pi 04.0s.2026

JUDGMENT

SABIT ALLAH J:- Through the instant

constitutional petition instituted under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioners have assailed the legality, validity, propriety and correctness ofthe judgment and decree passed by the leamed appellate Court whereby the appeal preferred by respondent No.l/plaintiff was allowed and the appeal filed by the present petitioners was dismissed through a consolidated judgment. The petitioners have further ( challenged the original judgment and decree passed by the leamed trial Court. Succinctly stated, the facts forming the background ofthe instant petition are that respondent No'l namely Mst. Bibi Tahira instituted a suit before the Court of leamed Senior Civil Judge/Judge Family Court, Banda Daud Shah, District Karak. The suit was entered as Suit No.3llFC of 2020. Through the said suit, respondent No'1 shet Qodutloh/steno* (S,B) HON'BLE MR- JUSTICE SABIT ULLAH KIIAN

sought relief of declaration, possession, permanent injunction and demolition of alleged illegal construction over the suit property.

2.The case setup by respondent No.l in the plaint was that her Nikah was solemnized with one Muhammad Ibrar son of Muhammad Yaqoob on consideration of dower comprising gold omaments and one kanal landed property situated at village Teri, District Karak. It was averred that the said property had been delivered to her in lieu of dower during the lifetime of her husband and that the same stood acknowledged by the family members of the deceased including Muhammad Yaqoob, father of the deceased. It was further pleaded that after the death of her husband, the present petitioners unlawfully interfered in her peaceful possession and raised illegal construction over portions of the suit property, thereby necessitating institution of the suit for declaration of her lawful rights coupled with consequential reliefs of possession, permanent injunction and demolition. Upon institution of the suit, the learned trial Court issued notices to the defendants/petitioners who entered appearance and contested the claim through written statements' The parties went to trial and the leamed trial Court framed issues, recorded evidence produced by the respective parties and SheI QaduIIoh/sieno. (S.B) HON'BLI] MR. JUSTICE SABIT ULLAH KHAN

thereafter partially decreed the suit vide judgment and decree dated 29.09.2022. Feeling agglieved, both the parties preferred separate appeals before the leamed District Judge. The appeal preferred by respondent No.l/plaintiff was entered as Family Court Appeal No.l0/FCA of 2023 whereas the appeal preferred by the present petitioners was also entertained as an appeal arising out of proceedings conducted under the Family Courts Act, 1964. The leamed appellate Court consolidated both the appeals and decided the same through a common judgment dated 24.02.2024 whereby the appeal preferred by respondent No'l was accepted while the appeal preferred by the present petitioners was dismissed.

3.Leamed counsel for the petitioners contended that the judgments passed by both the Courts below are illegal, arbitrary and without lawful authority. It was argued that the learned appellate Court committed serious illegality in simultaneously treating the proceedings as family proceedings while observing that the nature of the suit was essentially civil and not a family matter' It was further contended that once the learned appellate Court itself concluded that the dispute pertained to declaration, possession and demolition involving determination of civil sher Qadutloh/steno* (s.B) HON',BLE MR JUSTICE SABIT ULLAH KHAN

rights and title, the proceedings conducted before the Family Court could not legally be sustained. Leamed counsel further argued that the jurisdictional defect goes to the root of the matter and renders the entire proceedings void.

4.Conversely, leamed counsel for respondent No.l supported the impugned judgments to the extent of findings recorded on merits. However, during the course of arguments, leamed counsel candidly conceded that the question relating to maintainability of the suit before the Family Court and the legality of the subsequent appellate proceedings indeed required serious consideration.

5.I have heard leamed counsel for the parties at considerable length and have also perused the available record with their able assistance.

6.Before adverting to the merits of the

controversy, it would be advantageous to first examine the foundational issue touching the jurisdiction of the Court and maintainability of the proceedings. The record unequivocally demonstrates that the suit instituted by respondent No.l was entered as Suit No.31ffC of 2020 before the learned Senior Civil Judge/Judge Family Court, Banda Daud Shah. The issues were framed by the said SiEI QOdU Ah/STCNO* (S,B} HON'BLf, MR' JUSTICE SABIT ULLAH KHAN

Court while exercising jurisdiction as Judge Family Court and the matter thereafter proceeded accordingly. Similarly, the appeals preferred against the judgment of the trial Court were also entertained and registered as family court appeals. However, while deciding the consolidated appeals, the leamed appellate Court observed that the suit instituted by respondent No.l ought to be considered as a civil suit and not as a family suit and that the learned trial Court had decided the matter in its civil capacity as Civil Judge and not as Judge Family Court. The leamed appellate Court further observed that the appeals were to be treated as regular civil appeals instead of family court appeals. The aforesaid observations made by the leamed appellate Court are wholly irreconcilable with the admitted factual and procedural position emerging from the record.

A Court cannot simultaneously recognize proceedings as family proceedings for all practical purposes and thereafter declare them to be civil proceedings merely through passing observations in the judgment without first addressing the question ofjurisdiction in accordance with law. Jurisdiction is not a matter ofprocedural convenience;

rather it goes to the very competence and authority of the forum to adjudicate upon a dispute. It is by now a well settled principle of law that jurisdiction cannot be ShEI QOdUI]Oh/STCNO* (S.B) HON'BLE MR. JUSTICE SABITULLAH XHAN

conferred through consent, acquiescence or inadvertence of parties. Where a Court inherently lacks jurisdiction over the subject matter, the entire proceedings conducted before such forum become vulnerable in the eye of law. Reliance in this regard is placed on 2024 SCMR 107 titled Faqir Muhammad Vs Khusheed Bibi, wherein it was held that:

"According to Order XLI, Rule I of the Code of Civil Procedure, 1908 ('C.P.C."), every appeal is required to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf, along with a copy of the decree appealed from. It is also a requirement of law that the memorandum of appeal should set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrdtive, and such grounds shall be numbered consecutively. (Jnder Rule 3 of Order XU, C.P.C., it is envisaged that where the memorandum of appeal is not drown up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court, or be amended then and there; and where the Court reiects any memorandum, it shall record the reason for such rej.ection and if the memorandum of appeal is amended, the iudge, or such ofJicer as he appoints in this behalf, shall sign or initial the amendment. Under Rule 9 of the same Order, it is further provided that where a memorandum of appeal is admitted, the Appellate Court or the proper fficer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the PurPose.

8.A survey of the aforesaid provisions cited from the C.P.C. emphasizes the onerous duty of the Court, including the Officer of the Appellate Court or any stalf member of the Court (clerk of court/chief ministerial fficer) who has been authorized and assigned the task to accept the presentation of the memo of appeal before admission and diligently examine the memo of appeal, and judgment and decree, including all supporting documents, to ensure thqt everything is in order, and, if ShEI QOdUIIAh/StENO* (S,B) HON'BLE MR' ruSTICE SABIT ULLAH KHAN

there is any doubt in the mind of the concerned Court clerllfficial with regard to jurisdiction, they should raise the objection(s) and bring it to the attention of the Court to resolve it; and if the Court concludes at the time of admission that the appeal has been filed at the wrong forum, whether due to a lack of territorial or pecuniary jurisdiction, or some other ancillary or incidental reasons, the memo of appeal should be promptly returned to the appellant to elect the right remedy and forum to avoid rendering the decision of the Court coram non judice at the end of the day. The available record indicates that the appeals were admitted by the learned ADJ for regular hearing on 06.07.2010 and the operation of the impugned judgment of the Civil Court was also suspended until the next date of hearing which demonstrates that neither the relevant Court Staff invited the attention ofthe Court with regard to the valuation of suit added on in the judgments, nor did they raise any objection to the pecuniary jurisdiction, nor did the Appellate Court itself scrutinize the judgment and decree to detetmine its own jurisdiction. Instead the matter remained pending for a considerable period of time and the proceedings continued without any demur up to 17.05.201 I when the learned ADJ concluded that he had no pecuniary jurisdiction to adjudicate upon the appeals and returned the memos of appeal to the petitioner for institution in the High Court. The examination and evaluation of jurisdiction at the initial stage is also significant pursuant to the well-settled explication of law that the parties cannoL by mutual consent, takc away the jurisdiction vested in any Court of law, nor can they confer jurisdiction to any Court not vested in it by law"' 7 Equally settled is the principle that the question ofjurisdiction can be raised at any stage ofthe proceedings and even by the Court suo motu, as defect ofjurisdiction strikes at the root of the adjudicatory process' The reliefs claimed by respondent No.1 in the present matter included declaration of rights in immovable property, possession thereof, demolition of alleged illegal construction and permanent injunction. Such reliefs prima facie involve ShETQOiUIIOh/IICNO* (S.B) HON'BLE MR' JUSTICf, SABIT ULLAH KIIAN

determination of civil rights, title, possession and proprietary interests in immovable property. The controversy therefore gave rise to a serious and substantial question regarding the competence of the Family Court to entertain and adjudicate upon the matter under the provisions of the Family Courts Act, 1964. Reliance in this respect is placed on 2021 SCMR 1145 titled Muhammad Arshad Anjum Vs. Mst. Khurshid Begum and others, wherein it was held that:

"The Family Court Act 1964 (W.P. Act XXXV of 1964) (the Act) was enacted for " expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith"; provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984) and those of the Code except sections 10 and 11 have been excluded to achieve the legislatitte intent The exclusion of normal rules of procedure and proof' applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, is essentially designed to circumvent delays in disposal of sustendnce claims by the vulnerable; this does nol derogate its status as a Court nor takes qway its inherent jurisdiction to protect its orders and decrees from the taints of fraud and misrepresentation as such powers must vest in every tribunal to ensure that stream of justice runs pure and clean; such intendment is important yet for another reason, 4s at times, adjudications by a Family Court may involve decisions with far reaching implications/consequences for a spouse or a sibling and, thus, there must exist a mechanism to recall or rectify outcome of dtty sinister or oblique manipulation, therefore, we find no clog on the authority of a Family Court to re-examine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose, in the absence of any express prohibition in the Act, it can borrow the procedure from available avenues, chartered by law.

sher Qodulloh/steno* (s.B) HON',BLE MR JUSTICE SABIT ULLAH KHAN

Question of non-applicability of the Code barring sections 10 and l l thereof came up before the Court in the case of Muhammad Tabish Naeem Khan v. Additional District Judge Lahore and others (2014 SCMR lj65), in the said case, plea of ouster of procedure was repelled as under:

"Family Court, whether as a trial court or an executing court, are governed by the general principles of equity, justice and fair play".

5.Recourse to plenary jurisdiction as suggested by the learned counsel for the respondent would be a journey into a blind alley as in the face of a Jinal decree by the Family Court, holding the field, the proposed course would inevitably lead to a chaotic collusion, if at all the petitioner ever succeed. Therefore, in the circumstances, reconsideration/re-examination of the impugned judgment and decree by the learned Family Court is the only expedient option, conducive to the interest of the contestants. The petition is converted into appeal and allowed with no order as to costs. Impugned judgment dated 04.03.2019 is set aside, as a consequence thereoJ appellant's claim in the property as mentioned in his application be attended by the learned Additional District Judge Multan before whom his application under section 12(2) of the Code shall be deemed as pending. Since this matter is pending for considerable time, the learned Court seized of the matter' in the fullness of time, shall decide it with all convenient dispatch sooner rather than later. MIryA/M' 32/SC Petition allowed".

8.During the course of hearing, both learned counsel were repeatedly confronted with the apparent contradiction emerging from the proceedings conducted before the Courts below. The leamed counsel were specifically asked to explain as to how a suit admittedly instituted, tried and decided as a family suit could subsequently be treated as a civil suit by the appellate Court without setting aside the entire proceedings on the ground of want of jurisdiction. Likewise, both leamed Sher Qodu gh/sieno* (S,B) HON'BLf, MR' JUSTICE SAAIT ULLAH KIIAN

counsel were asked to explain how the appeals could legally survive as regular civil appeals despite having admittedly been instituted and entertained as family court appeals. Despite exhaustive arguments, both leamed counsel failed to satisfactorily answer the jurisdictional anomalies and procedural irregularities surrounding the matter. The learned counsel were unable to wriggle out of the legal complications arising from the inconsistent approach adopted by the learned appellate Court. At one stage ofthe proceedings, learned counsel for both the sides fairly conceded that the proceedings before the Courts below suffered from serious legal defects affecting the very maintainability of the matter. Faced with the obvious jurisdictional complications and legal infirmities, learned counsel for both the parties jointly requested this Court that instead of entering into the merits of the dispute, the matter may graciously be remanded to the learned trial Court so that the parties may first be afforded an opportunity to suitably amend their pleadings, if so advised, and thereafter pursue their remedies before the forum having lawful jurisdiction under the relevant law. It was further requested that appropriate directions may also be issued enabling the parties either to rely upon the evidence already produced on record or, if so advised by sherQodutlah/steno' ts.B) HON'BLE MR. JUSTICE SABIT ULLAH KHAN

their respective counsel and clients, to adduce fresh evidence in accordance with law so as to secure the ends of justice and to avoid further hardship, multiplicity of proceedings and unnecessary agony to the litigants.

g. Having considered the matter in its entirety, I am of the considered view that the request jointly made by leamed counsel for the parties is reasonable, just and legally sound. The record unmistakably reflects serious jurisdictional confu sion and procedural irregularities which have materially vitiated the proceedings conducted before the Courts below. Since the issue of jurisdiction goes to the root of the matter and directly affects the legality of the adjudicatory process, this Court cannot shut its eyes to such patent defects merely on technical considerations. It is a settled canon of administration of justice that procedural law is intended to advance the cause ofjustice and not to thwart the same' Courts are under an obligation to ensure that litigants receive fair opportunity of adjudication before a forum competent in law'

10.The present matter aPpears to have travelled through multiple stages under an apparent misconception regarding the true nature of jurisdiction exercisable by the Court. Continuation of such proceedings despite obvious jurisdictional defects would inevitably result in sher Qodu oh/rtenoa IS,B) HON'BLE MR. JUSTICE SABIT ULLAH KHAN

perpetuation of illegality and miscarriage ofjustice. In the peculiar facts and circumstances of the case, interests of justice would be best served if the parties are relegated before the leamed trial Court so that the question regarding maintainability, nature of proceedings and competence of forum may first be determined strictly in accordance with law before adjudication upon the merits of the dispute.

Such course would not prejudice either side and would rather provide lawful opportunity to the parties to pursue their respective claims and defences before the competent forum. Consequently, for what has been discussed above, the instant constitutional petition is allowed. The judgment and decree passed by the learned trial Court as well as the consolidated judgment rendered by the learned appellate Court are hereby set aside. The case is remanded to the learned trial Court with directions to proceed afresh in accordance with law after first determining the question of jurisdiction and maintainability of the proceedings. The parties shall be afforded full opportunity to amend their pleadings, if so advised, and thereafter to address the Court regarding the proper forum competent to try and adjudicate upon the controversy involved in the matter' The leamed trial Court shall further be competent to determine, with consent of parties and in accordance with law, whether the sher Qoduttah/steno* (s.B) HON'BLf, MR. JUSTICE SABIT ULLAH KHAN

evidence already recorded may be read in evidence or whether fresh evidence is required to be produced for just and proper adjudication of the controversy. The leamed trial Court shall adopt all lawful measures permissible under the law to secure the ends ofjustice and to save the parties from unnecessary hardship and prolonged litigation. Since the matter pertains to litigation pending since the year 2020, the learned trial Court is directed to proceed expeditiously and conclude the matter positively within a period of three months from the date of receipt of copy ofthisjudgment.

Announced.

04.0s.2026

JU DGE

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ShET QOdU Oh/SUNOA (S,B) HON'BLE Mn" JUSTICE SABIT ULLAJI KHAN