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2020 C L C 952
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2020 C L C 952

[High Court (AJ&K)]

Before Chaudhary Khalid Yousaf, J

NIAZ AHMED and 3 others----Petitioners

Versus

Mst. MUSHARAF SHAHEEN----Respondent

Revision Petition No.160 of 2018, decided on 29th January, 2020.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10---Specific Relief Act (I of 1877), Ss. 42 & 54---

Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5,
Sched.---Suit for declaration and permanent injunction with regard
to land given as dower---Maintainability---Plaint, return of---
Plaintiff-wife filed a suit for declaration and permanent injunction
regarding land given to her as dower---Trial Court returned the
plaint for presentation before Family Court---Validity---Family Court
had exclusive jurisdiction to entertain and adjudicate all the
matters which fell within the Schedule of Azad Jammu and
Kashmir Family Courts Act, 1993---If dispute was between the
spouses then Family Court was the right forum but if it was

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between the spouses and third party with regard to property given
in lieu of dower then Civil Court had jurisdiction to resolve the said
controversy---Dispute, in the present case, was between the
widow and the third party i.e. brothers and sisters of her deceased
husband---Civil Court was the appropriate forum to decide the
present matter---Impugned orders passed by the Courts below
were set aside and suit was transferred to the Court of Senior Civil
Judge for its decision on merits---Revision was allowed, in
circumstances.

PLD 2018 SC (AJ&K) 31 and Syed Iqbal Shah v. Syeda Tahira Bibi
and 3 others 2019 MLD 576 rel.

Alia Abd-ur-Rehman for Petitioners.

Kamran Baig for Respondent.

ORDER

CHAUDHARY KHALID YOUSAF, J.----The captioned revision

petition has been filed against the judgment dated 04.04.2018,
passed by the learned District Judge Muzaffarabad, whereby order
dated 30.11.2017, passed by the learned Senior Civil Judge
Muzaffarabad, has been maintained.

Precise facts of the instant case are that plaintiff-respondent herein

filed a suit for declaration-cum-perpetual injunction before the
court of Senior Civil Judge Muzaffarabad stating therein that
plaintiff-respondent got married with Khawaja Ejaz Ahmed in the
year 1986. It has been further stated that the husband of the
plaintiff-respondent was died and plaintiff-respondent solemnized
second marriage with Riaz Ahmed on 15.05.2010 in lieu of dower
amount of Rs.600000/- in shape of house comprising survey Nos.
889min old, 910min new, 885 old, 909min new and 786/887 old,

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910 new, measuring 1-1/4 marla situated in Madina Market

consisting of 3 rooms, kitchen, bathroom and veranda and in this
regard an agreement dated 10.06.2010 was executed. It has been
further stated that husband of the plaintiff, was died on 09.04.2013
the defendants bent upon to dispossess her and wants to transfer
the said property to someone else whereas they have no
concerned with the disputed property as the plaintiff-respondent is
owner and has possession of the suit land on the basis of
agreement dated 10.06.2010 executed by the (deceased)
husband.

During pendency of the suit the plaintiff-respondent herein

submitted an application for return of plaint under Orders XXIII, VII,
Rule 10 of C.P.C, 1908 alleging therein that the plaint has been
instituted at wrong forum as the matter involved in the present suit,
relates to the dower and civil Court has no jurisdiction to decide
the same and sought permission for institution of fresh suit at
proper forum. Thereupon the trial court after inviting objections and
hearing the parties allowed the application subject to payment of
Rs.2000/- as cost and returned the plaint to the plaintiff with the
permission to file the same before competent Court vide its order
dated 30.11.2017. Feeling aggrieved from the said order
defendants-appellants filed appeal before the Court of District
Judge Muzaffarabad on 23.12.2017, whereby the learned District
Judge Muzaffarabad upheld the said judgment while enhancing
the cost as Rs.5000/- vide its judgment dated 04.04.2018, hence
this revision petition.

Miss. Alia Abd-ur-Rehman, Advocate, the learned counsel for

defendants-appellants herein reiterated the grounds taken in the
memo. of appeal and contended that the disputed property has not

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been divided and the shares of legal heirs are yet to be

determined. She further submitted that the question of jurisdiction
of the court does not fall within the definition of formal defect. The
learned counsel further argued that controversy involved in the
instant case is of a civil nature and only civil court is competent to
resolve the same. She next argued that the judgments passed by
the courts below based on misconception of law and lastly prayed
that impugned orders passed by the Courts below may be set-
aside.

On the other hand, Mr. Kamran Baig, Advocate, the learned

counsel for respondent, has opposed the revision petition and
submitted that property in dispute has been transferred to plaintiff-
respondent in lieu of dower and the same has been under
possession of plaintiff-respondent since 2010. Learned counsel
further contended that after return of the plaint the plaintiff-
respondent has filed a suit before Judge Family Court
Muzaffarabad. Learned counsel further argued that order passed
by the subordinate Courts are patently legal because the instant
suit pertains to the dower and only family Court is competent to
decide the same, therefore, subordinate Courts did not commit any
illegality or perversity while accepting the application and allowing
the plaintiff-respondent to file fresh suit before competent Court i.e.
Family Court and lastly prayed for dismissal of the revision
petition.

I have heard the learned counsel for the parties and gone through
the record of the case with due care.

In the instant case, the plaintiff-respondent herein filed a

declaratory suit along with perpetual injunction before the Court of
Senior Civil Judge Muzaffarabad, on 19.02.2016, stating therein

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that she got married with Khawaja Ejaz Ahmed in year 1986, who
was died and plaintiff-respondent solemnized second marriage
with Riaz Ahmed on 15.05.2010 in lieu of dower amount of Rs.
600000/- in shape of house situated in Madina Market consisting
of 3 rooms, kitchen, bathroom and veranda and after death of her
2nd husband defendants are bent upon to dispossess her from the
aforesaid house. During pendency of the suit plaintiff-respondent
herein filed an application for return of her plaint on 29.09.2017,
stating therein, that inadvertently the suit has been filed before
wrong forum, therefore, the same may be returned to her with
permission to institute the same before competent Court of law,
whereby the suit of petitioner was returned to her subject to
payment of cost Rs.2000/- vide its order dated 30.11.2017. Feeling
aggrieved from the said order defendants-appellants filed an
appeal before District Judge Muzaffarabad, on 23.12.2017,
whereby, the order passed by the Senior Civil Judge Muzaffarabad
was kept intact vide its order dated 04.04.2018.

The moot point involved in the instant case is that whether the
case/dispute pertains to property given in lieu of dower is triable by
the civil Court or Family Court? No doubt Family Court has
exclusive jurisdiction under section 5 of Family Courts Act, 1993,
to entertain and adjudicate all the matters which fall within the
schedule of Family Courts Act, 1993 and the same includes dower.
The dispute if arises between the spouses then of course Family
Court is the right forum but if dispute arises between the spouse
and third party regarding the property given in lieu of dower, then
the Civil Court has the jurisdiction to resolve the said controversy.

It is pertinent to mention here that in the case in hand, although

the dispute between the parties pertains to the property alleged to

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be. given in lieu of dower but the same was not between the
spouses. The dispute arises between the widow and the third party
i.e., brothers and sisters of her deceased husband. The
subordinate Courts returned the suit by wrongly interpreting the
judgment of the Hon'ble Apex Court reported as (PLD 2018 SC
(AJ&K) 31). For proper appreciation the relevant portion of the
supra mentioned judgment is reproduced as under;-

"In view of the aforesaid settled position of law, it can safely be

concluded that the dower once fixed between the spouses remains
dower and even after its payment, if any dispute arises or the
same is snatched by the husband, the Family Court alone has got
jurisdiction to entertain and decide the matter. The suit before the
Family Court for recovery of the dower will also be competent
against any person, who stood as a guarantor for the payment of
the dower, however, we may clarify that if any dispute arises in
respect of the property given in lieu of the dower, with any person
other than the husband or the guarantor, then of course, the case
would be decided by the Civil Court."

(underling is mine)

It has been resolved by the Hon'ble Apex Court that if the dispute
arises in respect of property given in lieu of dower with any person
other than husband and guarantor then the civil Court is the
competent Court to decide the same. The same proposition came
under consideration of the Hon'ble Apex Court in the case titled
"Syed Iqbal Shah v. Syeda Tahira Bibi and 3 others (2019 MLD
576). The relevant portion is usefully reproduced as under:

"The contention of Mr. Sajjad Ahmed Khan, the learned Advocate

for the appellants that the Civil Court has got no jurisdiction in

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respect of the matters enumerated in the schedule of Family

Courts Act, 1993, is also not attracted to the facts of the case in
hand. We have clarified the position in Shahzad Rauf's case PLD
2018 SC (AJ&K) 31 wherein, at page 41 of the report it is
observed by this Court that if the dispute regarding payment of the
dower is between husband and the wife, then no other Court
except Family Court can entertain the suit and even on the basis
of entries made in the Nikahnama, the decree of possession can
be awarded by the family. Court. In this regard, reliance was
placed on the cases reported as Liaqat Ali v. Additional District
Judge, Narowal and 2 others [1997 SCMR 1122] and Muhammd
Arif and others v. District and Sessions Judge, Sialkot and others
[2011 SCMR 1591]. However, we also held that if the controversy
regarding payment of the dower in respect of any property arises
between spouse and, the third party, then Civil Court is an
appropriate forum for determination of the matter."

(underlining is mine)

In the instant case, although the dispute pertains to the dower but
it is arisen between the widow and the third party after the death of
her husband. Therefore, in view of the dictum laid down by the
Hon'ble Apex Court in the cases referred above Civil Court is the
appropriate forum to decide the matter.

The crux of above discussion is that by accepting the instant

revision petition the order passed by the subordinate courts dated
04.04.2018, and 30.11.2017, respectively are hereby set-aside and
the suit pending before Judge Family Court Muzaffarabad shall
stand transferred to the Court of Senior Civil Judge Muzaffarabad,
who shall decide the same on merits.

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ZC/12/HC(AJ&K) Revision allowed.

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