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Civil Appeals Nos. 1336 and 1337 of 2005, decided on 6th March, 2006.
(On appeal from judgment of Lahore High Court, Mutlan Bench dated 15-12-2005
passed in Writ Petitions Nos. 3179 and 4259 of 2004).
Rajendra Bahadur v. Rajeshwar Bali AIR 1937 PC 276; Nazar Muhammad v. Shahzada
Begum PLD 1974 SC 22 and Abdul Raid v. Khurshid Ali 1992 SCMR 592 rel.
(b) Affidavit---
----S. 5---Limitation Act (IX of 1908), S.13 & Art.120---Recovery of past maintenance---
Limitation---Husband was living abroad and wife filed suit for recovery of past
maintenance---Wife was non-suited on the ground that suit was filed beyond the period
of three years when the cause of action had accrued to her---Validity---Claim for past
maintenance would be governed by Art.120 of the Limitation Act, 1908, which
prescribed a period of six years in a suit for which no period was provided elsewhere in
the Act, from the date when the right to sue had accrued---In computing period of
limitation prescribed for any suit, by reason of S.13 of Limitation Act, 1908, time during
which defendant had been absent from Pakistan and from the territories beyond Pakistan
under administration of the Central Government would be excluded---Even if period of
limitation for such suit would be three years, in view of absence of husband from
Pakistan, period of his absence from Pakistan would be excluded for reckoning the period
of limitation---Suit filed by wife was not barred by limitation.
Muhammad Nawaz v. Khurshid Begum PLD 1972 SC 302; Mst. Bushra Qasim v. Dr.
Abdul Rasheed and others 1993 CLC 2063; Mst. Zaibun v. Mehrban PLD 2004 SC
(AJ&K) 25 and Mst. Anar Mamana and another v. Misal Gul and 2 others PLD 2005
Peshawar 194 rel.
----S. 5---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 9---Recovery of past
maintenance---Plea of oral divorce---Validity---Husband was required to send notice of
divorce to Arbitration Council under Muslim Family Laws Ordinance, 1961 and also to
send copy of such notice to wife by registered post---No such proceedings having been
ever conducted, oral allegation of Talaq would neither be effective nor valid and binding
on wife, who was legally entitled to past maintenance.
Muhammad Asghar Bhutta, Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-
Record for Respondent No.3.
RANA BHAGWANDAS, J.---Both the appeals with the leave of the Court are directed
against judgment of the Lahore High Court dated 15-12-2004 setting aside judgments
passed by appellate forum in the suits arising out of proceedings under West Pakistan
Family Courts Act, 1964.
3. Appellant challenged both judgments and decrees in appeals, which came up for
hearing before an Additional District Judge, who decided the appeals by two separate
judgments dated 22-4-2004. On re-evaluation of the evidence appellate Court held that by
reason of divorce announced by the respondent, she would be entitled to claim
maintenance with effect from 28-12-1996 to 14-4-1998 and directed the respondent to
pay the same at the rate of Rs.8000 per month. In the second appeal, he enhanced the
value of dowry article from Rs.4,00,000 to Rs.9,55,038 and decreed the suit accordingly.
Respondent being dissatisfied with the judgments in both appeals filed two writ petitions
before the Lahore High Court, Multan Bench. Learned Judge in the High Court while
accepting writ petition impugning the decree for maintenance passed by appellate Court,
held that the plaintiff, in law, being entitled to claim maintenance for a period of three
years prior to the filing of the suit could only be awarded maintenance from 15-2-1999
but since she stood already divorced on this date, therefore, her suit for maintenance was
rightly dismissed by the trial Court. By another judgment in the writ petition filed by the
respondent, learned Judge proceeded to re-evaluate the evidence and substituted the
findings of fact recorded by the appellant Court. Consequently, he set aside the judgment
of the appellate Court and restored that of the Family Court decreeing the suit in the sum
of Rs.4,00,000.
4. Both the parties being dissatisfied, filed three separate petitions for leave to appeal, in
which leave was granted by this Court on 20-10-2005 to examine the question, inter alia,
whether judgment passed by the High Court suffers from misreading or non-reading of
record and whether the question of limitation for the purpose of past maintenance was
correctly decided by the High Court in accordance with law. It may be pertinent to note
that C.P:L. As in these appeals filed by the appellant were barred by 27 days respectively
and leave to appeal was granted subject to the question of limitation.
5. We have heard Mr. S.M. Masood, learned Advocate Supreme Court for the appellant
in both the civil appeals and Mr. Muhammad Asghar Bhutta, learned Advocate Supreme
Court for the private respondent at length and gone through the record.
6. Adverting to the question of limitation in filing these petitions, it may be noted that
explanation furnished by the appellant is that she is a parda observing lady and her
brother Shaukat Ali Khan used to look after her affairs, but he being employed in
Merchant Navy was out of country. He returned to Pakistan from Singapore on 21-1-
2005 whereafter he contacted a local counsel at Sahiwal, who being not a practising
Advocate of Supreme Court having consulted the latest diary published by Punjab Bar
Council for the year 2005, informed him that under Article 179 of the Schedule to the
Limitation Act, as mentioned at page 14 of the diary, period of 90 days was provided for
filing a petition for leave to appeal from the date of decree. He advised the brother of the
appellant accordingly that period for such purpose would be 90 days. In these
circumstances, the appellant pleaded that she being a parda observing lady and not
moving in public was misled due to wrong advice tendered by the counsel. Thus the
delay, if any, was neither deliberate nor intentional. In support thereof apart from her
affidavit, she has filed affidavit of Mr. Israr Ahmad Chaudhry, Advocate Sahiwal, copies
of relevant pages from the diary of the Punjab Bar Council as well as copies of the entries
in the passport of Shaukat Ali Khan to demonstrate that he landed at Lahore on 21-1-
2005.
7. Upon hearing learned counsel for parties and examination of the aforesaid documents,
which have remained un-rebutted, we are persuaded to the view that there was a
sufficient cause for filing the petitions beyond the period prescribed by law.. We
earnestly feel that a party shall not be made to suffer or prejudiced on account of wrong
advice of a counsel provided it was tendered bona fide. We are fortified in our view by
Rajendra Bahadur v. Rajeshwar Bali (AIR 1937 PC 276), A Nazar Muhammad v.
Shahzada Begum (PLD 1974 SC 22) and Abdul Raud v. Khurshid Ali (1992 SCMR 592)
Period for filing of leave petitions in both the appeals is, therefore, extended under the
provisions of Order XIII rule 2 of the Pakistan Supreme Court Rules 1980 in the larger
interest of justice.
8. Reverting to the merits of the appeals in the suit for maintenance, it may be observed
that the trial Court as well as the appellate Court and the High Court fell in serious
misconception of law. The first two Courts having accepted the averments of written
statement of the respondent and his affidavit without proper attestation as gospel truth
treated the same as legal evidence without subjecting him to the test of cross-
examination. It is ironical to note that the appellant had moved an application under
section 11(4) of the Family Courts Act 1964 praying the trial Court to summon the
respondent for cross-examination in relation to his affidavit forwarded from Paris but the
Family Court illegally rejected the said prayer and accepted the affidavit on its face value
merely because the respondent had been living in Paris and was not readily available in
Pakistan. This approach on the part of the trial Court and endorsed by the appellate Court
apart from being without any legal backing is repugnant to the settled principles of law
that an affidavit without an opportunity of cross-examination to the opposite party does
not constitute legal and valid evidence and must be excluded from consideration.
9. On its part, High Court also committed serious error of law by non-suiting the
appellant with the observation that period for recovery of past maintenance being three
years, without citing any provision of the Limitation Act proceeded to endorse the
judgments of the two Courts below. Indeed the claim for past maintenance would be
governed by Article 120 of the Schedule to the Limitation Act 1908, which prescribes a
period of six years in a suit for which no period is provided elsewhere in this Schedule
from the date when the right to sue accrues. Furthermore, by reason of section 13 of the
Limitation Act 1908 in computing the period of limitation prescribed for any suit the time
during which the defendant had been absent from Pakistan and from the territories
beyond Pakistan under administration of the Central Government shall be excluded.
Assuming, without conceding, even if the period of limitation for such suit be three years,
in view of the admitted absence of the respondent from Pakistan, the period of his
absence from Pakistan shall be excluded for reckoning the period of limitation. We are
supported in this view by the precedents reported as Muhammad Nawaz v. Khurshid
Begum (PLD 1972 SC 302), Mst. Bushra Qasim v. Dr. Abdul Rasheed and others (1993
CLC 2063), Mst. Zaibun v. Mehrban (PLD 2004 SC (AJ&K) 25) and Mst. Anar Mamana
and another v. Misal Gul and 2 others (PLD 2005 Peshawar 194).
10. On the merits of the case, we find that the appellant having been lawfully wedded to
the respondent in the absence of any proof of dissolution of marital tie, it was his legal,
moral as well as social duty under the Islamic principles to provide adequate maintenance
for her respectable living as in law he could not neglect to maintain her during the
subsistence of the marriage tie. His bald statement that he had announced Talaq to her on
13-12-1997 cannot be accepted at all as he utterly failed to substantiate it. In law, he was
required to send notice to the Arbitration Council under the Muslim Family Laws
Ordinance 1961 and also to send a copy of notice to the appellant by registered post. No
such proceedings having been ever conducted, oral allegation of Talaq would neither be
effective nor valid and binding on the appellant, who would, in all fairness, be legally
entitled to past maintenance as claimed by her. In view of social status and income of the
respondent, living in a highly developed country like France the amount of maintenance
claimed by the appellant was neither excessive nor unreasonable in view of inflation in
the cost of living and the amount of probable income earned by the respondent. Her
claim, therefore, was justified by all canons of justice and reason. Two Courts below as
well as the High Court, therefore, suffered from serious error of law by misreading of
record and exclusion of material piece of evidence from consideration, which has resulted
in gross miscarriage of justice. In fact the written statement cannot be considered as
substitute of evidence on oath. Similarly, as observed earlier, affidavit of the respondent
though attested by Pakistan Embassy in France would not constitute' legal evidence as he
did not appear for his cross-examination before the Family Court. In fact he did not
endeavour to appear even before the appellate Court at any point of time. Unrebutted
version of the appellant would, therefore, be considered as valid and legal for all intents
and purposes, particularly, when it stood uncontroverted. Consequently, we are of the
considered view that the interference of the High Court in the matter in its constitutional
jurisdiction was beyond the scope of Article 199 of the Constitution and the judgment of
the High Court must not be allowed to remain in field. We, therefore, while setting aside
the judgments of the High Court and the trial Court direct that in practical modification of
the judgment of the appellate Court the suit of the plaintiff or maintenance be decreed in
the sum of Rs.10,000 per month as claimed by her in the suit.
11. Taking up the issue of dowry articles, again the evidence of the appellant was neither
contradicted nor rebutted and the list of article as well as value of the articles shown in it
must be accepted on its face value. Indeed reasons recorded by the trial Court in this
behalf do not appeal to mind and assessment of value of the articles shown in it must be
accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not
appeal to mind and assessment of value of the articles in the sum of Rs.4,00,000 appears
to be artificial, whimsical and arbitrary. On the other hand calculation made by the
appellate Court accepting the claim of the appellant in the sum of Rs.9,55,038 is
evidently justified and warranted by law. It was none of the business of the High Court in
writ jurisdiction to substitute its own findings for the findings recorded by the court of
appeal after due appraisal of evidence. We would, therefore, set aside the judgment of the
High Court as well as that of the Family Court decreeing the suit in the sum of
Rs.4,00,000 and restore the judgment of the appellate Court accepting the claim of the
appellant, as pleaded in the suit.
12. For the aforesaid facts, circumstances and reasons, both the appeals are allowed with
costs.