Syed Muhammad Abeq Vs Mst. Sajida and others CM 12(2) No. 14-P of 2023 in W.P No. 2154 of 2010

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

CM 12(2) No. 14-P of 2023 in W. P. No. 2154/2010. Syed Muhammad Abeq vs. Mst. Sajida Ali and others. Date of hearing 29.04.2026.

Mr. Abdul Sattar Khan, Advocate for applicant. Mr. Arshad Jamal Qureshi, Advocate for respondents No. 3 & 4.

Nemo for respondent No. 6 (despite service, proceeded ex-prate). Respondents No. 1,2 and 5 (already proceeded ex-prate).

JUDGMENT

MUHAMMAD NAEEM ANWAR, J:-Through the instant application filed under Section 12(2) of the Code of Civil Procedure (CPC), 1908, the applicant seeks to impugn and set aside the judgment and order dated 13.11.2013 passed by this Court in Writ Petition No. 2154/2010 (titled "Said Wajid & 04 others Vs. Mst. Sajida Ali & 03 others"). By virtue of the said order, this Court had dismissed the writ petition filed by Respondents No. 3 to 6 (which included the predecessor-in- interest/co-sharers of the applicant), thereby upholding the concurrent findings, judgments, and decrees of the learned Additional District Judge-IV, Mardan dated 22.02.2010, and the learned Civil Judge/Family Court, Mardan dated 08.09.2009, which had decreed the dower suit in favour of Respondent No. 1.The applicant has assailed these concurrent structural findings primarily on the grounds of:

 An inherent want of jurisdiction in the Family Court;  The passing of a decree against a minor;

 The absence of a valid appointment of guardianad-litem; and  Alleged fraud, collusion, and connivance between Respondents No. 1 and 2.

The applicant further asserts that he was residing abroad at the material time, gaining knowledge of the impugned decree a mere

fifteen days prior to the institution of this application, and additionally pleads that the dower amount had already been satisfied. Upon being put to notice, Respondents No. 1, 2, and 5 failed to appear and were consequently proceeded against ex- parte via proclamation in the daily newspapers Daily Express and The News. Respondents No. 3 and 4 (uncles of the applicant, being the sons of late Dr. Syed Johar) entered appearance through counsel, Mr. Arshad Jamal Qureshi, Advocate, while Respondent No. 6 is identified as the mother of the applicant.

2.To appreciate the controversy, a brief recourse to the factual matrix is indispensable.Respondent No. 1 originally instituted Civil Suit No. 310/FC of 2006 on 26.04.2006 for the recovery of dower, specifically seeking ownership of a bungalow measuring 02-Kanal situated at 5-A, Gulmohar Road, University Town, Peshawar. Her claim was anchored upon a specific entry in the Nikahnama dated 28.02.1980. She concurrently sought a decree for permanent injunction to restrain the defendants from alienating or transferring any share of the suit property. It was her case that her marriage was solemnized with Respondent No. 2 on 28.02.1980, whereunder the subject house was settled as her dower by her father-in-law, thereby vesting absolute ownership in her to the exclusion of her husband and his relatives.The suit was vigorously contested by the defendants on a multitude of legal and factual objections. After recording evidence pro-and-contra, the learned Civil Judge/Family Court decreed the suit on 08.09.2009. The statutory appeal preferred by the defendants was dismissed by the learned Additional District Judge-IV, Mardan on 22.02.2010, and their subsequent Constitutional/Writ Petition was likewise dismissed by this Court on 13.11.2013. Dissatisfied, the defendants moved the Apex Court via Civil Petition No. 770 of 2014, which culminated in a definitive dismissal and refusal of leave by the Honorable Supreme Court of Pakistan on

3.The applicant now raises a fresh grievance, contending that his father, Syed Javed (late son of Dr. Syed Johar), had transferred the proprietary share in the suit property to his wife on whose death it ought to have devolved upon the applicant and others.He maintains that the dower had already been satisfied to Respondent No. 1 by Respondent No. 2. He primarily pivots his application on the assertion that he was a minor during the entire trajectory of the prior litigation and that no guardian ad litem was ever formally appointed to protect his interests by the trial court, the appellate court, or this Court in the writ jurisdiction. Consequently, he brands the concurrent decrees are the result of fraud and collusion. Presently, only Respondents No. 3 and 4 are actively before this Court; though they fiercely contested Respondent No. 1’s claim from its inception and lost up to the Apex Court, they now, predictably, support the stance of the applicant.

4.The learned counsel for the applicant has forcefully argued the following dimensions:

1.Jurisdictional Defect: The Family Court lacked the inherent jurisdiction to entertain a suit for recovery of dower directed against the in-laws of the bride, particularly when the property was originally owned by the father-in-law (Dr. Syed Johar).

2.Competency of Suit: The suit was incompetent ab initio as Dr. Syed Johar allegedly did not possess valid title to the property at the time of the marriage of Respondents No. 1 and 2.

3.Procedural Fatalities: No formal judicial order was passed appointing a guardian ad-litem for the applicant during his minority, rendering the entire prior proceedings a nullity for being in blatant violation of the mandatory provisions of Order XXXII of the CPC.

4.Fraud and Collusion: Respondents No. 1 and 2 deliberately orchestrated a fraudulent arrangement while the applicant was away from the country to deprive him of his patrimony.

5.Evidentiary Infirmity: The mother of the applicant (Respondent No. 6) had failed to submit a supporting affidavit as legally mandated for the verification of facts, thereby leaving the applicant's distinct interests completely unprotected.

In support of his contentions, the learned counsel has heavily relied upon the following precedents:

 Mst. Naveed Kousar vs. Mauzzam Khan (2016 CLC 180)  Masal Khan vs. Mst. Shah Tarina (2012 CLC 206)  Zabardast Khan Mahar vs. Federation of Pakistan (2022

MLD 840)

 Trustees of the Port of Karachi (KPT) vs. Mst. Naheed

(2013 MLD 1200)

 Yar Muhammad vs. Mst. Amnat (1988 CLC 1355)  Ali Muhammad Khan vs. Mst. Kalu (2002 CLC 624)  Shahida Parveen vs. Nijabat Ali (2009 MLD 671)  Ghulam Muhammad vs. Parveen Akhtar (2012 CLC 321)  Mushtaq Ahmad vs. District Judge Vehari (2013 CLC 928)  Muhammad Arshad Anjum vs. Mst. Khurshid Begum

(2021 SCMR 1145)

Conversely, the learned counsel representing Respondents No. 3 and 4 adopted and fully supported the arguments advanced by the applicant.

5.I have listened to the arguments of learned counsel for applicant, counsel for respondents No. 3 & 4 who had supported the submissions of applicant and with their valuable assistance perused the record.

6.It is an admitted position on record that the property in dispute was originally owned by the predecessor-in-interest, Syed Johar Ali. It is further undisputed that Respondent No. 2 is the husband of Respondent No. 1. According to the stance of Respondent No. 1, the disputed constructed house was transferred to her by her father-in-law, Syed Johar Ali, during his

lifetime at the time of the solemnization of her Nikah in the year 1980 as dower.

Upon the demise of Syed Johar Ali, he was survived by his legal heirs, namely: Mst. Rashida Johar, Syed Javed, Syed Sajid, Syed Amjad, and Syed Zulfiqar. The present suit was resisted by these legal heirs, including the mother of the applicant for herself and as next friend of applicant. The respondents submitted their written statement, raising multiple preliminary objections regarding:

 The maintainability of the suit;

 The acquisition of the property and accrual of the cause of action; and  Jurisdiction of the Court.

Based on these divergent pleadings, the Court properly reduced the controversies into formal issues. At the outset, it is clarified that this Court is not currently called upon to determine how the general legacy of Syed Johar Ali is to be devolved upon his legal heirs. The essential question is limited to the proprietary rights claimed by Respondent No. 1 by way of dower. This specific aspect has already undergone rigorous judicial scrutiny, having been dilated upon by the Family Court, the Appellate Court, this Court in its Writ Jurisdiction, and ultimately by the Honorable Supreme Court of Pakistan.The pivotal question raised by the learned counsel for the applicant is whether the suit instituted by Respondent No. 1 was competent from its inception, and whether a Family Court possesses the jurisdiction to entertain and adjudicate a claim for dower property when it involves third parties (such as a father-in-law or subsequent legal heirs) rather than just the husband.This legal conundrum stands definitively settled by the Honorable Supreme Court of Pakistan in the landmark judgment Muhammad Arif and others v. District & Sessions Judge and others (2011 SCMR 1591).The apex court evaluated whether a Family Court has the jurisdiction to entertain a suit for the recovery of dower property or personal belongings

against individuals other than the husband, such as a father-in-law, mother-in-law, or brother-in-law—and whether such persons can be validly impleaded as parties to a family suit.The Honorable Supreme Court interpreted Section 2(d) of the West Pakistan Family Courts Act, 1964, holding that:

 The term "party" is of wide connotation and import.  It is not restricted merely to the spouses but includes any necessary or proper party whose presence is essential for a complete, effective, and enforceable adjudication of the dispute.

 Consequently, a Family Court is fully competent to assume jurisdiction over relatives or third parties who are alleged to be in possession of the dower property or personal belongings of the wife.

The operative part of the Honorable Supreme Court’s judgment is reproduced below:

"[On Court question, the learned Advocate Supreme Court for the petitioners admitted that the petitioners never objected to their impleadment in their written statement before the Family Court or in their appeal before the first appellate Court or in the Writ Petition before the High Court or in the memo of this CPSLA before this Court. The learned Advocate Supreme Court also conceded that the question of jurisdiction of the Family Court was also not raised before any of the Courts. Had the petitioners been improperly impleaded, they would have protested and sought their deletion from the suit by proving themselves to be irrelevant or unnecessary in the dispute between the spouses. The petitioners without demur submitted to the jurisdiction of the Family Court. They fully participated in the suit trial, filed their appeal and then a writ petition. The petitioners are thus debarred from claiming such a ground now for the first time in the Supreme Court. Even otherwise the impleadment of petitioners as co-defendants did not affect the jurisdiction of the Family Court to try the petitioners. Had the learned Advocate Supreme Court for the petitioners only glanced through the law, he would have advised himself against raising

such a frivolous ground in the Supreme Court in clear violation of the provisions of the law on the subject.]"

Applying the immutable principles laid down by the apex court to the facts of the instant case, the suit filed by the wife (Respondent No. 1) for the recovery of the property transferred to her as dower by her father-in-law was entirely competent before the Family Court. The Family Court possessed valid jurisdiction to adjudicate upon the matter.Furthermore, this jurisdictional objection was previously raised by the mother of the applicant, acting both in her individual capacity and as the next friend of the applicant, and the same was conclusively decided against them. Suit was competent and the Court had the jurisdiction to dilate upon which has been decided thus, the applicant cannot be allowed to reagitate a settled question of law and fact. Consequently, the objection regarding the lack of jurisdiction of the Family Court is found to be devoid of legal substance and is hereby rejected.

7.Next, was the objection that though the mother of the applicant appeared and submitted written statement but since no specific order was passed allowing the applicant’s mother to act as guardian ad-litem. Based on the provisions of Order XXXII of the Code of Civil Procedure (CPC), 1908, and established judicial precedents in Pakistan, the short answer is no. A minor who was substantially and effectively represented by their mother and actively contested the suit cannot successfully challenge the resulting decree or order solely on the technical ground that no formal order appointing the mother as a guardian was explicitly passed by the court. Here is a detailed breakdown of why this technicality alone does not vitiate the proceedings: While Order XXXII, Rule 3(1) states that the Court shall appoint a proper person to be a guardian for the suit, the superior courts have consistently held that procedural technicalities should not defeat justice.If the record demonstrates that the mother’s interest was not adverse, to that of the minor (complying with Order XXXII, Rule 4(1)). She actively produced evidence, cross-examined witnesses, or engaged a pleader

to effectively defend/contest the minor's rights and no prejudice or fraud was caused to the minor's legal interests. Though the order sheets of the learned Family Court have not been placed on file however, even if it is presumed that no formal order was issued this court will treat the absence of a formal appointment order as a mere irregularity, not an illegality that invalidates the jurisdiction of the court. The minor is deemed to have been "substantially and effectively represented."Order XXXII, Rule 5(2) states that an order made without a minor being represented by a next friend or guardian may be discharged. The key phrase is "without such minor being represented." If the mother actively stepped into the shoes of the guardian, filed pleadings, and contested the case on the minor's behalf, the minor was represented. The rule aims to protect minors from undefended, ex-parte, or collusive orders where their presence was entirely ignored, which is not the case here. Section 99 CPC explicitly acts as a safety net for such procedural omissions: that; “No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."Because the mother actively participated and contested the merits, the lack of a formal written order by the judge is an administrative oversight (a defect in procedure) that did not affect the actual merits of the case. Reference may be made to the case of Mst. Nighat vs. VIth Senior Civil Judge (PLD 2009 Karachi 377) wherein the court observed that even if a formal appointment order was missing, the minors' mother and adult siblings (co-defendants) shared identical interests in the property. They effectively protected the minors' rights throughout the litigation, ensuring no prejudice or harm was caused to them. In the case of Tanveer Mahboob and another versus Haroon and others (2003 SCMR 480) hon’bleSupreme Court has held that:

[We may add that in a case in which a minor defendant in the suit was represented by his father or brother or sister as co-defendant without any conflict of interest and such co-defendant sincerely and

effectively defended the rights and interest of the minor in the property, it would be deemed that the rights were sufficiently safeguarded and mere fact that minor was not sued through guardian ad-litem would not make the decree invalid and the same would be binding on the minor].

8.Adverting to the contention that the applicant was abroad suffice is to say that in civil litigation, the physical presence or personal prosecution of a suit by a party is not a mandatory legal requirement, provided they are adequately and effectively represented. A judgment and decree cannot be invalidated on the sole ground of a party's absence or residency abroad if their rights were actively defended by a co-party (such as a close relative) with aligned interests. Furthermore, under the doctrine of waiver and finality of judgment, a party cannot raise a procedural objection regarding their absence if they were a party to subsequent appellate proceedings where the merits of the decree were already fully challenged and adjudicated. Because the applicant's interests were fully protected during the trial and he actively participated in subsequent appellate litigation, he cannot now claim prejudice or use his absence abroad as a ground to disturb a finalized judicial decree.

9.With regard to the contention that late Dr. Syed Johar was not the owner of the subject property, it is observed that this precise plea formed a core issue in the landmark suit filed by Respondent No. 1, which was ultimately decided against the defendants due to a total dearth of evidence. Admittedly, Mst. Rashida Johar and the mother of Respondent No. 1 were real sisters, and Dr. Syed Johar was himself a subscribing witness to the Nikahnama (Ex. PW-1/2). It is of significant legal consequence that both the Appellate Court and this Court, in the preceding round of litigation, concurrently held that the defendants failed to produce even the original copy of the alleged gift deed. These findings have since attained permanent finality following the dismissal of the Civil Petition for Leave to Appeal (CPLA) by the Honorable Supreme Court of Pakistan. Having comprehensively exhausted their original legal remedies, the defendants cannot now be permitted to re-agitate or reopen past,

closed, and conclusively settled issues through the vehicle of the instant application under Section 12(2) of the Code of Civil Procedure (CPC). The principle of finality of litigation squarely bars such an attempt.

10.Turning to the pivotal controversy regarding the allegations of fraud, collusion, and connivance purportedly practiced by Respondents No. 1 and 2. Before evaluating the merits of these assertions, it is imperative to address the threshold question of whether this matter necessitates the framing of formal issues and the recording of evidence. It is a well-settled principle of law that in applications filed under Section 12(2) of the Code of Civil Procedure (CPC), the framing of issues and recording of pro-ut-in- force evidence is not a sine qua non or an inflexible mandate for the Court, rather, the adoption of such a procedure remains strictly contingent upon the peculiar facts, circumstances, and available record of each case. Guidance in this regard is safely sought from the landmark judgment of the Apex Court in Mrs. Amina Bibi through General Attorney Vs. Nasrullah & others (2000 SCMR 296). Adverting to the factual matrix, the stance of Respondent No. 1 is clear: the subject house was settled upon her as dower by her late father-in-law, Dr. Syed Johar. This stance is robustly corroborated by the testimony of the plaintiff’s witness (DW-1), who categorically deposed that he was a subscribing witness to the Nikahnama, in whose presence the dower was fixed and the house was explicitly gifted in lieu thereof. The record further reveals that Dr. Syed Johar passed away on June 4, 1994, yet during his entire lifetime, he never once disputed or challenged the validity of this dower arrangement. Conversely, while the defendants asserted an independent gift of the same house in favour of Mst. Rashida, they failed to produce an iota of credible evidence to substantiate this claim. Not only has the execution of the Nikahnama been conclusively established, but the incorporation of the house as a dower constituent therein automatically invokes the exclusive jurisdiction of the Family Court. In such a clear-cut eventuality, where the record speaks for itself, the matter neither demands the recording of fresh evidence nor warrants any further fishing inquiry.

Consequently, the allegations of fraud and collusion raised by the applicant are found to be conspicuously vague, generalized, and unsubstantiated. The case law relied upon by the learned counsel for the applicant are clearly distinguishable on facts and circumstances and, therefore, are not applicable to the case in hand.

11.Having failed to prove their contentions through their predecessor-in-interest, the applicant and other legal heirs have merely attempted to reopen a past and closed transaction through a different trajectory. The entire stance of the applicant, right from its inception, is manifestly tainted with mala fides and is, therefore, legally unsustainable. Thus, for the reasons discussed above, this application being without substance is hereby dismissed. Announced on 9.04.2026.

Released on 08.06.2026

J UD G E

JUDGE

Haider Shah, SSS (DB) Hon’ble Mr. Justice Muhammad Naeem Anwar& Hon’ble Justice Wiqar Ahmad.