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Constitutional Petition No.117 of 1985, decided on 25th March, 1986.

‑‑‑S.11‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑Res judicata‑‑Different prayers in earlier suit‑‑Effect‑‑Suit for restitution of conjugal right decreed against wife‑‑Subsequent suit by wife for dissolution of marriage decreed against husband‑‑Husband's plea of res judicata against wife's suit for dissolution of marriage, held, could not be sustained firstly because in suit for restitution of conjugal rights defence put up by wife having been proved, finding of trial Court should have been for dismissal of suit‑‑Secondly, although matters, directly and substantially in issue in first suit were also in matters directly and substantially in issue in second suit but prayer in both suits being different, decision of first suit would not operate as res judicata in second suit.

Muhammad Younas v. Nargis Sultana P L D 1970 Lah. 41; Shamshoo v. Mst. Tahira and another 1983 C L C 133 and Muhammad Mumtaz v. Mst. Perveen Akhtar and another 1985 C L C 415 ref.

‑‑‑Ss. 10 & 12‑‑Reconciliation proceedings‑‑Plea of non‑compliance of‑‑No specific form or procedure having been prescribed for effecting compromise or reconciliation between parties, any procedure adopted by trial Court to effect reconciliation, held, could not be objected to.

Mir Dost Muhammad v. Government of Baluchistan and 3 others P L D 1980 Quetta 1 ref.

‑‑‑Ss. 10 & 12‑‑Evidence‑‑Recording of‑‑Plea that evidence of wife not recorded in presence of husband, held, could not be sustained in view of presence of both parties having been recorded in order‑sheet on day of recording of evidence and non‑objection thereof, on part of husband on subsequent dates.

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Where pleas raised by petitioner about factum of res judicata and non‑recording of evidence of respondent in his presence could not be sustained on record, constitutional jurisdiction, held, could not be invoked in circumstances.

Iftikhar Muhammad for Petitioner. Nemo for Respondent No. 1. Muhammad Moquim Ansari for Respondent No. 2. . Date of hearing: 25th March, 1986.

NAZIR AHMAD BHATTI, J.‑‑By this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Razzak Hussain Shah has challenged the decree for dissolution of marriage granted on 15‑7‑1985 by Qazi Khuzdar/Family Court, respondent No.1 herein, in favour of Mst. Khalida Begum, respondent No.2 herein.

2. The facts relevant for the purpose of this petition are that the petitioner and respondent No.2 were married on 9‑4‑1980 at Khuzdar and they lived together for more than two years. However, somewhere in September or October, 1982 the respondent No.2 left the house of the petitioner. She went to the house on her parents and refused to live with the petitioner, whereupon the petitioner was compelled to institute a suit against the respondent No.2 for restitution of conjugal rights in the Court of Qazi Khuzdar with powers of Judge Family Court on 4‑12‑1982. The petitioner mentioned in his suit that the parents of respondent No.2 were not allowing her to live with him and that people of bad character used to visit the house of her parents which was disliked by the petitioner and he wanted to live with the respondent No.2 in a separate house. This suit was resisted by respondent No.2. She mentioned in her written statement that the petitioner used to live with her in her parents house as Khana‑Damad, that the petitioner had sold her house without her consent, that the petitioner attempted to commit sodomy with her and that the petitioner had falsley charred her for "Siahkari" with her own father. The learned Qazi, who was seized with the matter, framed issues regarding the allegations of immorality of respondent No.2, sale of her property without her consent and false charge of adultery with her own father. The parties produced evidence pro and contra the aforesaid issues. The learned Qazi by his judgment dated 12‑10‑1983 decided the aforesaid issues against the petitioner and in favour of respondent No.2 but in spite of that he granted a conditional decree for restitution of conjugal rights in favour of the petitioner to the effect that the parties shall live together in the house of father of respondent No.2 but the petitioner shall furnish sufficient security for good behaviour against the respondent No. 2. In the meantime the respondent No.2 also filed a suit for dissolution of her marriage on 3‑9‑1983. The grounds for dissolution of marriage as mentioned in the plaint by respondent No.2, are that the petitioner used to compel her to commit sodomy with her and that he had falsely charged her for adultery with her own father. The petitioner, in his written statement submitted on 22‑10‑1983 in defence of the suit filed by respondent No.2, denied the allegations against him in the plaint and further pleaded that in view of his earlier suit for restitution of conjugal rights, the suit for dissolution of marriage was barred under law. The learned Qazi framed issues with regard to the charge of sodomy and the suit having become res judicata. Evidence of the parties was recorded on different dates by the learned Qazi. Attempts at pre‑trial and post‑trial conciliation were made by the learned Qazi which did not bear any fruit so he vide judgment, dated 15th July, 1985 granted a decree for dissolution of marriage in favour of the respondent No.2 against the petitioner.

3. The petitioner has challenged the decree for dissolution of marrige on three fold grounds; firstly, that the suit was barred under section 11, C.P.C.; secondly, that the learned Qazi did not carry out pre‑trial and post‑trial conciliation proceedings in a legal manner; and thirdly, the testimony of respondent No.2 in her suit for dissolution of marriage was recorded behind the back of the petitioner and the petitioner was deprived of cross‑examining his wife, and the proceedings were conducted in unlawful manner.

4. In so far as the first point is concerned, we have very carefully gone through the entire record of both the cases. There is no doubt that the grounds of resistance of the suit for restitution of conjugal rights were the same whereon the respondent No.2 had sought dissolution of her marriage with the petitioner. These grounds were cruetly inasmuch as the husband compelled his wife for the commission of sodomy and the charge of adultery by the wife with her own father. The perusal of the judgment, dated 12‑10‑1983 in the suit of the petitioner for restitution of conjugal rights will show that the learned Qazi had written a very detailed judgment in which he has thoroughly discussed the evidence produced by both the parties and he came to the conclusion that there appeared to be truth in the allegations of the wife that she was being compelled for the commission of sodomy. The learned Qazi also came to the conclusion that the petitioner had also levelled the charge that people of bad character used to visit the house of parents of wife and he had also accused before independent and reliable persons that he had seen his wife lying on a cot with her father and had accused her of adultary with her father. Although the learned Qazi found both the issues on these matters in favour of the wife but in spite of that he granted a decree for restitution of conjugal rights against the respondent No.2 and in favour of the petitioner. Actually the learned Qazi should have dismissed the suit of the petitioner when he accepted the defence of the wife. It shall also be seen that the same grounds which were the grounds of defence to the suit for restitution of conjugal rights were the grounds for the dissolution of marriage in the suit instituted by respondent No.2 which was accepted by the learned Qazi and deceased for dissolution of marriage was also granted.

5. Mr. Iftikhar Muhammad, learned counsel for the petitioner has contended that the grounds for the suit for dissolution of marriage (hereinafter referred to as the "second suit") which was later in time and was filed when the suit for restitution of conjugal rights (hereinafter referred to as the "first suit) had already been decreed, were the same which were grounds of defence of the first suit, and these issues had been finally tried and determined by the Court which was competent to try both the suits and as such the second suit filed by respondent. No.2 was barred under section 11 read with Explanation 4, C.P.C. In support of this plea Mr. Iftikhar Muhammad has relied upon the case of Muhammad Younas v. Nargis Sultana P L D 1970 Lah. 41; Shamshoo v. Mst. Tahira and another 1983 C L C 133 and Muhammad Mumtaz v. Mst. Parveen Akhtar and another 1985 C L C 415. We have gone through the aforesaid three judgments. In the first case there was only one common issue regarding cruelty of husband in both the suits and some other grounds had also been pleaded by the wife for dissolution of marriage and it was held that the suit for dissolution of marriage was not barred under section 10, C.P.C. In the second case the suit by wife for dissolution of marriage was dismissed for non‑prosecution and suit by husband for restitution of conjugal rights was decreed but subsequent suit by wife for dissolution of marriage with new and additional ground of Khula was held not to be barred as res judicata. In the third case it was held that only that ground furnished a complete answer to plaintiff's claim and resulted in dismissal of opponent's suit which could be ground of defence referred to in section 11 Explanation 4, C.P.C. It shall thus be seen that the cases cited by the learned counsel for the petitioner do not help him in any way. However, as matters in issue in both these suits were substantially the same a presumption was raised that the decision in the first suit operated as res judicata under section 11, Explanation 4, C.P.C., but there is on, strange circumstance in both the suits. The learned Qazi after the perusal of the evidence produced in the first suit came to the conclusion that the wife had successfully proved the charge of cruelty (sodomy) and false charge of adultary but in spite of that he decreed the first suit in favour of the petitioner. This circumstance will prove that the wife had cogent reason not to live with her husband and as such the learned Qazi should have dismissed the first suit. If the first suit had been dismissed and it was held that the husband was not entitled to have the company of his wife, the second suit could be decreed on the same grounds and the marriage of the parties could have been dissolved. In that view of the matter it cannot be held that the second suit was barred as res judicata. Although the matters directly and substantially in issue in the first suit were also the matters directly and substantially in issue in the second suit but the prayer in both the suits was different. In the first suit, the prayer was for restitution of conjugal rights whereas in the second suit the prayer was for dissolution of marriage. Even on that score the plea of res judicata could not be claimed by the petitioner. The impugned judgment in the second suit will show that the learned Qazi did not apply his mind in so for as his decision about the issue of res judicata is concerned. He dismissed this plea on the ground that the petitioner had produced no evidence. However, in view of the above discussion we would agree with the learned Qazi regarding the claim of res judicata but we would base our decision on the aforesaid grounds. We are of the confirmed opinion that the decision in the first suit did not operate as res judicata in the second suit.

6. In so far as the second point is concerned, it was contended by Mr. Iftikhar Muhammad that under section 10 of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as the Act) the family Court has to ascertain, at the pre‑trial stage, the points at issue between the parties and attempt to effect compromise or reconciliation between the parties, if this be possible, and if no compromise or reconciliation is possible, the Court shall frame the ‑issues in the case and fix the case for recording of the evidence. It was further contended by Mr. Iftikhar Muhammad that under section 12 of the Act after the close of the evidence of both the sides the family Court has to make another effort to effect compromise or reconciliation between the parties and if such compromise or reconciliation is not possible then the family Court shall announce its judgment and give a decree. The contention of Mr. Iftikhar Muhammad was that the learned Qazi did not make any attempt to effect a compromise between the parties before and after the trial. It was urged by him that these were mendatory provisions and the Court had not complied with them. In support of this contention, he has relied upon the following paragraph from the case of Mir Dost Muhammad v. Government of Baluchistan and 3 others P L D 1980 Quetta 1:‑

"It is well‑settled principle of law that in a case where Statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Indeed such statute imphedly prohibits doing of things in any other manner; particularly when the procedure is laid down for taking proceedings before a Tribunal or a Court where such procedure before a Court or Tribunal is usually construed to be an imperative one as doing of acts or a thing under that Statute is a condition precedent to conferring upon the jurisdiction on a Court or a Tribunal as the case may be. The compliance of such act or thing in no way could be either ignored or dispensed with. Their non‑compliance would certainly invalidate all the proceedings, orders made or passed by the same authority or any other authority either superior or inferior thereto in respect of the same."

We have given our serious thought to this contention of the learned counsel but we cannot see eye to eye with him for the reason that no specific form or procedure has been prescribed in sections 10 and 12 of the Act for effecting compromise or reconciliation between the parties. In" our view the aforesaid judgment cited by the learned counsel is not applicable in the present case. It would have been a different matter, if any specific and particular form or procedure was provided in the law for this purpose and if the Court had not complied with that then the proceedings could be termed as being unlawful. We find from the order sheets, dated 5‑3‑1984, 5‑6‑1985 and 15‑7‑1985 that the learned Qazi had in fact tried to bring about a compromise between the parties. The order dated 5‑3‑1984 clearly shows that both the parties informed the Qazi that no reconciliation had taken place between them. After recording this order the learned Qazi framed the issues. Clearly this was an attempt by the learned Qazi to effect reconciliation between the parties at the pre‑trial stage. On the other hand the order, dated 5‑6‑1985 and 15‑7‑1985 clearly indicate that the learned Qazi had attempted to effect reconciliation between the parties after he had recorded their evidence. In the face of these clear orders, we are unable to accept this contention of Mr. Iftikhar Muhammad.

7. In so for as the third point is concerned that also falls through for the simple reason that 15‑4‑1985 and the order of the said date recorded by the learned Qazi on the order sheet clearly states that both the parties anal their counsel were present. It cannot, therefore, be said that the statement of respondent No.2 was recorded behind the back of the petitioner. Had this been so, the petitioner could have raised an objection before the learned Qazi on the subsequent date. After 15‑4‑1985 the second suit came up for six times on different dates for hearing before the learned Qazi and no objection to this effect was taken before the trial Court. The affidavit of the Advocate, was counsel of the petitioner before the learned Qazi, in this respect cannot be believed. This plea is not only contradicted by the order dated 15‑4‑1985 of the trial Court but also being taken up for the first time in this Court cannot be allowed.

8. For the aforesaid reasons we would dismiss this constitutional petition but there shall be no order as to costs.

9. We had dismissed the petition vide our short order of even date and the aforesaid are the reasons therefore.

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