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2018 C L C 241

[Lahore (Multan Bench)]

Before Habib Ullah Amir, J

Mst. AILA NAWAZ----Petitioner

Versus

JUDGE FAMILY COURT, KHANEWAL and 2 others----Respondents

W.P. No.1216 of 2017, decided on 9th March, 2017.

Family Courts Act (XXXV of 1964)---

----Ss. 2(d), 5 & Sched.---Suit for recovery of dowry articles---Plaintiff impleaded her
father-in-law as well as husband as defendants---Necessary and proper party in a
family suit---Scope---Petitioner contended that her dowry articles were under the
possession of both her husband and her father-in-law so Family Court had wrongly
deleted the name of her father-in-law from the array of defendants---Husband
contended that the suit for recovery of dowry articles was always inter se spouses and
his father was not a proper party for the purpose---Validity---Section 2(d) of Family
Courts Act, 1964, stipulated that 'party' would include any person whose presence as
such was considered necessary for a proper decision of the dispute---Wife, in a suit for
recovery of dowry articles was competent to file the suit not only against her husband
but any other relative of the husband whose impleadment or addition as a party for
comprehensive decision and effective enforcement of decree would be necessary---In
the present case, petitioner/wife had specifically averred that her dowry articles and
personal belongings were in possession of her husband and her father-in-law and
prayed against both the defendants---Family Court by accepting the application of
husband to delete the name of father-in-law had misinterpreted the law on the subject
and being so had committed illegality---High Court set aside the order passed by
Family Court by holding that father of husband was a necessary and proper party for
adjudication of claim of plaintiff in respect to dowry articles---Constitutional petition
was accepted.

Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011
SCMR 1591; Muhammad Anwar and another v. Additional District Judge, Lahore
(Miss Uzma Akhtar Chughtai) and 2 others 2003 YLR 365 and Ayesha Bibi v.
Muhammad Faisal and 2 others PLD 2014 Lah. 498 ref.

Zahid Lateef Rao for Petitioner.

Khalid Masood Ghani for Respondents Nos.2 and 3.

ORDER

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HABIB ULLAH AMIR, J.--- The petitioner dissatisfied with order dated 15.12.2016
of learned Judge Family Court, Khanewal has filed instant petition.

2. Succinctly, facts giving rise to this petition are that petitioner instituted suit for
recovery of maintenance allowance, dowry articles, personal belongings and delivery
charges of minor against respondents in the court of learned Judge Family Court,
Khanewal which is controverted by respondents Nos.2 and 3 and during proceedings,
Rana Shahzad Zulfiqar, respondent No.2, moved application praying therein that Rana
Zulfiqar Ahmad, respondent No.3 was unnecessarily implicated in suit being not a
proper and necessary party and made request for deletion of his name with further
request that claim in respect to dowry articles may be resolved by appointment of
referee. Application is contested by petitioner but learned Judge Family Court accepted
application and directed for deletion of name of respondent No.3, however, dismissed
application to the extent of appointment of referee, hence this petition.

3. I have heard learned counsel for parties at length and perused the file.

4. Mst. Aila Nawaz, plaintiff/petitioner by filing suit has sought for a decree for
recovery of maintenance allowance, dowry articles, personal belongings and delivery
charges of minor son against defendants and in paragraph No.4 of plaint, it has
specifically been averred by plaintiff that in the year 2010, defendants deprived
plaintiff No.1 of her dowry articles and bridal gifts and also by snatching gold
ornaments made her to leave house in three wearing apparels. It has also averred in suit
that dowry articles are in possession of defendants and plaintiff has been deprived of
same.

5. In his application moved by respondent No.2, he claimed that respondent No.3 was
not a necessary and proper party and that he was implicated unnecessarily. Application
of respondent No.2 was accepted by learned Judge Family Court holding that claim of
plaintiff in respect to recovery of dowry articles and maintenance is inter se spouses,
therefore, respondent No.3 who is the real father of respondent No.2 was impleaded
unnecessarily.

6. The word "party" has been defined in West Pakistan Muslim Family Courts Act,
1964 as under:-

"Party" shall include any person whose presence as such is considered

necessary for a proper decision of the dispute and whom the Family Court adds
as a party to such dispute; "

7. It has been laid down in the case reported as "Muhammad Arif and others v. District
and Sessions Judge, Sialkot and others"(2011 SCMR 1591) as under:-

"Section 2(d)---"Party"---Definition---Scope----Definition as given in S.2(d) of

West Pakistan Family Courts Act, 1964 has two parts i.e. (a) any person whose
presence as such is considered necessary for the proper decision of the dispute
and (b) any person whom Family Court adds as "party" to such dispute

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--Definition of word "party" is though not very different from the one obtaining
under C.P.C., yet it is comparatively more liberal and extensive than the
proverbial "necessary or proper party" of a civil suit."

8. It has also been held in the above-referred case that in suit for recovery of dowry
articles contention that wife was competent to file such suit only against her husband
and not against the father, mother and brother of her husband is baseless. The
observation of the Hon'ble Supreme court is being reproduced hereunder:-

"Such a result can only be achieved if other persons who for some credible
reason are considered necessary or proper or relevant or related to the dispute
and its decision, are also parties in the suit. The clear examples are the suits for
the recovery of dowry items, dower property or personal property/belongings
(of wife) alleged to be in the possession or use of persons other than the
husband or wife. Such persons will per force need implead-ment or addition as
parties for a comprehensive, final, effective and proper decision of the
dispute(s) and enforcement of the decree (s). Similarly in the matter of custody
of minor children, persons having custody of the minors have to be parties to
the family suit. Non-impleadment of such persons may result in the frustration
of proper adjudication of the dispute by the Family Court which also enjoys the
inherent power to delete or strike out any party; un-necessary or improper or
unconnected to the cause or the dispute and the suit."

9. It has been observed in the case reported as "Muhammad Anwar and another v.
Additional District Judge, Lahore (Miss Uzma Akhtar Chughtai) and 2 others" (2003
YLR 365) as under:-

"Term 'party'--- Connotation---Term 'party' is not confined only to the spouses

but its meanings are wider in sense---If there is a suit for recovery of dowry
articles and the dowry articles are in the custody of father of husband then even
in lifetime of the husband, his father may also be impleaded as a party as the
presence of the father may be considered necessary for a proper decision of the
dispute. Since the dowry articles are exclusively in the ownership of wife and
same are also recoverable even after the death of the husband then whosoever
in possession of such articles may be impleaded as a party as due to the death
of the husband the responsibility of the legal heirs for return of dowry articles
is not vanished---When the suit for recovery of dowry articles is within
exclusive jurisdiction of Family Court, it is to be finally disposed of by the
Family Court."

10. It has also been laid down in the case reported as "Ayesha Bibi v. Muhammad
Faisal and 2 others" (PLD 2014 Lahore 498) as under:-

"Persons jointly entitled or liable must be made parties to the suit otherwise
same might not result into an effective. enforceable or binding decree."

11. In the present case, petitioner/wife has specifically averred that her dowry articles

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and personal belongings are in possession of her husband and his father and prayer in
plaint in respect to dowry articles is against both defendants. Learned Judge Family
Court has accepted application of respondent No.2 by observing that dispute in respect
to recovery of dowry articles is always inter se spouses and that father of defendant
No.2 has been improperly added as defendant and, thus, learned Judge Family Court
has misinterpreted law on the subject and being so has committed illegality by passing
impugned order, so the impugned order is liable to be set aside.

12. For the foregoing discussion, this petition is accepted and order dated 15.12.2016
passed by learned Judge Family Court, Chichawatni is set aside and by holding that
respondent No.3 is a necessary and proper party for adjudication of claim of petitioner
in respect to dowry articles, the application of respondent No.2 seeking for deletion of
the name of defendant No.3 from suit is dismissed.

MQ/A-81/L Petition accepted.

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