Amanullah vs Mst.Israna etc

PESHAWAR HIGH COURT BANNU BENCH

FORM “A”

FORM OF ORDER SHEET

Court of............................................... Case No .........................of................... Serial No of Date of Order or Order or other proceedings with Signature of judge or Magistrate and order or Proceeding That of parties or counsel where necessary proceeding

05.01.2015. CM.TA. No.16-B/2014

Present: Mr. Noor Raza Ali Khan, Advocate, for the petitioner.

MUHAMMAD YOUNIS THAHEEM, J.- Through the instant application Amanullah petitioner seeks the transfer of family suit titled Mst. Israna etc Versus. Amanullah pending in the Court of Civil Judge/Judge, Family Court, Karak to the Court of Civil Judge-VIII/Judge, Family Court, Bannu, where identical suit of the petitioner is pending adjudication..

2.Learned counsel for the petitioner in support of his transfer application contended that the petitioner is a poor person having a very petty profession named as ‘Cholay Ferosh/Hawker’; that the petitioner is unable to afford heavy charges to attend the Court at Karak on each and every date of hearing, particularly in the prevailing law and order situation;

and that two children of the petitioner, i.e. respondents No.2 and 3 herein, are studying at Middle and Primary Schools in Bannu District.

3.Without dilating upon the merits of the case and the submissions made by the learned counsel for the petitioner at the bar, suffice it to say that Rule 6 of the West Pakistan Family

Court Rules, 1965, being very much relevant for the disposal of instant application reads as under:- “6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which.- {a} The cause of action wholly or in part has arisen, or

(b)Where the parties reside or last resided together.

Provided that in suit for dissolution of marriage or dower, the Court within the limits of which the wife ordinarily resides shall also have jurisdiction.

In this respect the case law reported as Shahida Parveen Versus Samiullah (1999 C L C 1863) is as under:- “.Residence of female, determines territorial jurisdiction of a Court to adjudicate upon such matters mentioned in schedule.”

The view taken in the judgment reported as Mst.

Allah Mafi Versus Munir Ahmad (2005 MLD 194) is as under:-

“In family matters convenience of female litigant is to be kept in view. Suits arising under the West Pakistan Family Courts Act, 1964 between the same parties should be tried by one and the same Court at the place

where wife had instituted the suit to avoid any conflict of judgments.”

Under the above quoted proviso of the ibid

rule since the respondent-wife has been provided a special remedy, therefore, the request of the petitioner-husband cannot be acceded to.

5.In addition to above, the petitioner has stated at the bar that he had submitted attested copy of the plaint titled Mst.

Israna etc Versus. Amanullah pending before the learned Judge, Family Court, Karak, meaning thereby that he is fully aware of the proceedings before the family Court at Karak where he can agitate his plea under Section 10 of the West Pakistan Family Courts Act, 1964 for restitution of conjugal rights to avoid conflicting judgments.

6.With the above observations, this application, being devoid of any merit, is dismissed in limine.

JUDGE

Announced on 05th Jan. 2015.