PLJ 2015 Lahore 951

[Multan Bench, Multan]

Present: Mahmood Ahmad Bhatti, J.

MUKHTIAR AHMAD, etc.--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and another--Respondents

W.P. No. 6992 of 2005, decided on 9.4.2015.

Limitation Act, 1908 (IX of 1908)--

----Art. 104--Family Court Act, 1964, S. 14--Suit for recovery dower--Laps of twenty three years--Dower suit could be filed within three years and that time is to be reckoned from date when Muajjal dower is demanded or marriage is dissolved by death or divorce--Validity--Family Court, was under an obligation to first attend to question of limitation and if suit was barred by time, he could have saved parties from unnecessary hassle by dismissing suit straightway--Petition was dismissed.                                                        [P. 953] A

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioners.

Mahar Haq Nawaz Humayun, Advocate for Respondent No. 2.

Date of hearing: 9.4.2015.

Order

Through this petition, the petitioners have assailed the judgments and decrees dated 27.06.2005 and 23.11.2005 passed by the learned Judge Family Court, Muzaffargarh and an Additional District Judge, Muzaffargarh, respectively, whereby the suit of Mst. Sakina, Respondent No. 2 for the recovery of dower was decreed and an appeal preferred thereagainst by the petitioners under Section 14 of the W.P. Family Courts Act, 1964 was dismissed.

2.  Shortly stated, the facts are that Mst. Sakina, the decree-holder/Respondent No. 2 was married to Allah Wassaya, predecessor-in-interest of the petitioners. He passed away on 01.10.1982. Some twenty-three years after his death, Mst. Sakina instituted a suit for the recovery of dower. The stance of the petitioners was and is that Allah Wassaya had pronounced divorce upon Mst. Sakina on 26.12.1981,  which became effective on 27.03.1982 and he breathed his last on 01.10.1982. The suit instituted by Mst. Sakina was absolutely barred by time.

3.  Given the divergent pleadings of the parties, the learned Judge Family Court framed issues. In its wake, the parties led pro and contra evidence in support of their respective pleas. However, the learned trial Court decreed the suit of Mst. Sakina, Respondent No. 2 vide judgment and decree dated 27.06.2005.

4.  Feeling aggrieved by the aforesaid judgment and decree dated 27.06.2005, the petitioners filed an appeal before the learned District Judge, Muzaffargarh. Their appeal was dismissed by an Additional District Judge, Muzaffargarh vide judgment and decree dated 23.11.2005. Hence this writ petition.

5.  In support of this writ petition, only one point has been urged. It has been vehemently argued by the learned counsel for the petitioners that under Articles 103 and 104 of the First Schedule to the Limitation Act, 1908, the suit for the recovery of dower could be filed within three years and this time is to be reckoned under the former Article from the date when the Muajjaldower is demanded or the marriage is dissolved by death or divorce, whereas under the latter Article, this period would commence from the date of dissolution of marriage either by death or by divorce. In order to reinforce his submissions, he has invited the attention of the Court to Exhs. D.1 to D.3.

6.  On the other hand, learned counsel for the decree-holder, Respondent No. 2 has supported the impugned judgment and decree.

7.  I have heard the learned counsel for the parties and gone through the documents annexed to the writ petition.

8.  In order to appreciate the controversy in proper perspective, it would be expedient to reproduce Articles 103 and 104 of the First Schedule to the Limitation Act, 1908 for ready reference:

Description of suit	Period of Limitation	Time from which period begins to run
1	2	3
103.               By a Muhammadan for exigible dower (mu’ajjal).	Three years	When the dower is demanded and refused or (where, during the continuance of the marriage no such demand has been made) when the marriage is dissolved by death or divorce.
104.               By a Muhammadan for Deferred dower (mu’wajjal).	Three years.	When the marriage is dissolved by death or divorce.

9.  From a perusal of the documents annexed to the writ petition, it is absolutely clear that it is not in dispute that Mst. Sakina was married to Allah Wassaya, predecessor-in-interest of the petitioners on 04.12.1980. Going by Ex.D.1., Allah Wassaya deceased pronounced Talaq upon Mst. Sakina on 26.12.1981. This divorce became effective on 27.03.1982 as per the certificate (Exh.D.2) issued by U.C. Alodey Wali, Tehsil and District Muzaffargarh. It is also indisputable that Allah Wassaya passed away on 01.10.1982. If Exhs.D.1 and D.2 are relied upon, the marriage of Mst. Sakina with Allah Wassaya stood dissolved on 27.03.1982. Under Article 103 of the First Schedule of Limitation Act, 1908, she could have instituted a suit for the recovery of dower until 28.03.1985. Even if both Exhs.D.1 and D.2 are kept out of consideration, the marriage between Mst. Sakina and Allah Wassaya stood annulled by the death of Allah Wassaya on 01.10.1982. In that event, Mst. Sakina could have instituted suit up to 02.10.1985 in view of Article 104 of the First Schedule to the Limitation Act, 1908. The learned Judge Family Court, Muzaffargarh was under an obligation to first attend to the question of Limitation and if the suit was barred by time, he could have saved the parties from unnecessary hassle by dismissing the suit straightway. Regrettable as it is, these self-evident truths also escaped the notice of the learned appellate Court.

10.  I have no hesitation in holding that both the impugned judgments and decrees dated 27.06.2005 and 23.11.2005 passed by the learned Judge Family Court, Muzaffargarh and an Additional District

Judge, Muzaffargarh are without jurisdiction and nullities in the eyes of law. They are hereby set aside by allowing the writ petition.

(R.A.)  Petition allowed

For more, you can consult omara.khan789@gmail.com or call +923123450006