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Civil Revision No. 45‑D of 1981 / B . W . P . , decided on 18th November 1985.
‑‑‑S. 11‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5‑‑Res judicata‑‑Claim of return of respondent's dowry decided in suit for dissolution of marriage by Family Court who was a Court of exclusive jurisdiction having no competence to take seizin of said claim as dowry not included as an item triable by a Judge Family Court‑‑Even if misappropriation of dowry used as a ground for dissolution of marriage any decision thereon could not take away plenary jurisdiction of Civil Court‑‑Subsequent suit brought by respondent for recovery of dowry held, competent and not barred by principles of res judicata.
‑‑‑S. 11‑‑Res judicata‑‑Essential ingredient‑‑Court deciding former suit should have been competent also to decide subsequent one.
Mst. Khurshid Anwar and others v. Muhammad Hussain P L D 1956 Lah. 134 and Muhammad Shafi and others v. Muhammad Bakhsh and others P L D 1971 Lah. 148 ref.
Ahmed Shah and others v. Malik Hakim Khan and others P L D 1954 Lah. 629 and Sultan v. Hap Niamat P L D 1965 (W.P.) Pesh. 219 rel.
Mian Muhammad Nawaz for Petitioner.
A.A. Ansari for Respondent.
Date of hearing: 19th November, 1985.
This Civil Revision impugns a judgment /decree, dated 22‑1‑1981 of the learned District Judge, Bahawalpur, whereby the petitioner defendant's first appeal was dismissed.
2. The parties were spouces. The respondent‑lady, however, sought a decree for dissolution of her marriage on the ground, inter alia, that the petitioner‑husband had misappropriated her dowry. She succeeded to obtain it but only on the ground of Khula. The issue relating to the alleged misappropriation of her personal belongings by the petitioner husband was decided against her. The decree, however, became final for all purposes. Thereafter, she brought the present suit before a civil Court for recovery of dowry. It was decreed by both the Courts below concurrently granting her the alternative relief of Rs.10,000 in lieu thereof.
3. The Revision Petition was admitted on the contention that since the issue of misappropriating the respondent's dowry was decided against her in the suit for dissolution of marriage, she was precluded under the principle of res judicata from recovering it through the present suit.
4. I am afraid, the argument does not seem to be much efficacious, in that, the suit for dissolution of marriage lay before a Court of I exclusive jurisdiction having had no competence to take seizin of a claim for the return of dowry. The Schedule to the West Pakistan Family Courts Act, 1964, does not include dowry as an item triable by a Judge Family Court and, therefore, even if its misappropriation was used as a ground for dissolution of marriage, any decision thereon could not take away the plenary jurisdiction of the ordinary civil Court. For applying the principle of res judicata, one of the essential ingredients is that the Court deciding the former suit should have been competent also .to decide the subsequent one. The answer to this poser here is in the negative because the Judge Family Court could neither entertain nor grant relief about the return of the dowry. This is how the subsequent suit brought before the civil Court was quite competent.
5. Learned counsel for the petitioner relied upon Mst. Khurshid Anwar and others v. Muhammad Hussain P L D 1956 Lah. 134 and Muhammad Shafi and others v. Muhammad Bakhsh and others P L D 1971 Lah. 148, but, with respect, none of them is in point. A plain reading of section 11, C.P.C. shows that the Court making decision in the former suit should be competent to try the second one and since this ingredient is not satisfied here, no assistance could be taken from any other source for the opposite view. It was so held in Ahmed Shah and others v. Malik Hakim Khan and others P L D 1954 Lah. 629 and Sultan v. Haji Niamat P L D 1965 (W.P.) Pesh. 219.
6. There is no substance in the revision petition. It is dismissed with costs all the more when the relief claimed was based upon a question of fact.
M . Y . H . Petition dismissed.
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