Zafar Khan

In the Court of Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore.

Muhammad Asad

Versus

Muhammad Asad

Versus

Humaira Naz & another. Family appeal (maintenance). Humaira Naz Family appeal (Dower).

Application for seeking adjustment of hearing. Respectfully Sheweth: 1. The above captioned two appeals are pending adjudication before this Hon’ble Court in which next date of hearing is fixed as 1/10/99 for notice to the Respondents. 2. That Muhammad Asad has received a Notice from this Hon’ble Court in a case titled “Muhammad Asad Vs Mehr Allah Bukhsh” in which date of hearing is fixed as 7/9/99. (Original Notice attached). 3. That no case as titled in the notice is pending before this Hon’ble Court. 4. That it is presumed that there might be a clerical mistake in the “title of the case” as mentioned in the notice. 5. That it is further presumed that it might be a miscellaneous application, having been moved by the opposite party in which date is fixed as 7/9/99. Had the copy of such matter been attached with the notice, I would have been able to

submit written reply of the same. 6. That I, Zafar Iqbal Khan Advocate, Council for the appellant, has recently undergone two surgical operations and still is hospitalized to reduce severe pain. Doctors put me under seductive injections keeping me all the time in drowsiness or in sleep. As such I am unable to travel to Lahore and to pursue the case. 7. That I am expected to be recovered from illness within a period of three weeks and I Shall definitely appear before this Hon’ble Court on 1/10/99, date already fixed for the above mentioned two appeals. 8. That apart from the appeals, if there is some other matter fixed for 7/9/99, the same may very graciously be adjourned and be fixed for 1/10/99 for submission of reply and arguments. I promise not to seek further adjournment in this case. Wherefore, it is respectfully prayed (i)

In the interest of justice, herein of the matter pertaining to the notice fixed for 7/9/99 (notice attached) may be adjourned and be fixed for 1/10/99, date already fixed for the two appeals.

(ii)

Applicant be directed to issue me a copy of the said matter to enable me to submit reply and arguments in the fixed date, just to avoid further delay. Yours obediently, Zafar Iqbal Khan Advocate High Court.

Street No. 8 Usmanabd Colony, Multan.

In the Court of Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore.

Muhammad Asad

Versus

Muhammad Asad

Versus

Humaira Naz & another. Family appeal (maintenance). Humaira Naz Family appeal (Dower).

Application for seeking adjustment of hearing. AFFIDAVIT of: Zafar Iqbal Advocate High Court, Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto.

DEPONENT Verification: Verified on oath at Multan, this_____ day of September, 1999 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang. Petitioner Versus 1. Mst. Humera Naz daughter of Mian Khuda Bakhsh, caste Kanjoo. 2. Maste Usama (minor) S/o Muhammad Asad, caste Siyal Bharwana, through Mst. Humera Naz (his real mother). Both residents of 504, M Block, Model Town Extension Scheme, Lahore. 3. Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore. 4. Mr. Muhammad Shafiq, Civil Judge/Judge Family, Lahore. Respondents Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Respectfully Sheweth: 1.

That the petitioner and respondent No. 1 married together at Chaniyot Tehsil & District Jhang on 21.10.94. Respondent No. 2, the only issue, was born on 26.9.95 out of the wedlock. Thereafter, the petitioner, through a written divorce deed dated 12.2.98, divorced irrevocably to respondent No. 1 by pronouncing “Talaq” thrice in one sitting. Photocopy of written divorce deed is attached as Annexure “A”.

2.

That the respondents No. 1 & 2, on 10.3.98 filed a suit against the petitioner for grant of maintenance allowance in the Court of Family Judge, Lahore. Another suit for recovery of Dower

amount was also filed by respondent No. 1 against the petitioner in the same Court. Copy of the plaint in maintenance suit is Annexure “B”. 3.

That the petitioner contested both the suits. The learned Judge, Family Court consolidated both the suits and framed following consolidated issues on 20.3.99: No. 1.

Whether the plaintiffs are entitled to a decree for

maintenance allowance; if so, at what rate and for which period. OPP. No. 2.

Whether the plaintiff is entitled to a decree for

recovery of dower amount of Rs. 105,000/- as prayed for. OPP. No. 3. 4.

Relief.

That after recording the evidence of parties and hearing arguments, the learned Judge, Family Court decreed both the suits in favour of the respondents vide single consolidated judgment dated 5.7.99 impugned. Respondent No. 1 was allowed past maintenance at the rate of Rs. 10,000/- per month w.e.f. September 1995 to 6.12.1998 plus the period of “Iddat” i.e. three months. The total amount of maintenance was worked out by the learned court as Rs. 420,000/Rs. 1500/- per month was fixed as past maintenance allowance for respondent No. 2 (minor) from September 1995 to July 1999 which was worked out by the learned Court as Rs. 63,000/-. Respondent No. 2 was also allowed future maintenance allowance at the rate of Rs. 3,000/- per month with 10% annual increase till arising of any legal disability. It was further ordered that Rs. 15,000/- which were admittedly paid by the petitioner to the respondents in lieu of maintenance shall be adjusted from the past maintenance allowance of respondent No. 1. Copy of judgment of the Trial Court is annexed as Annexure “C” & copy of decree as Annexure “C/1”. Copies of plaintiff’s oral & documentary evidence are Annexure “D” & “D/1” respectively. Copies of

defendant’s oral as well as documentary evidence are Annexure “E” & “E/1” respectively. 5.

That aggrieved of the judgment and decree, the petitioner/ defendant filed two separate appeals against the decrees of dower and maintenance in the Court of learned District Judge, Lahore. A third appeal was also filed on behalf of respondent No. 2 /minor/plaintiff seeking enhancement of quantum of maintenance. All the three appeals were heard and disposed off by respondent No. 3 vide one consolidated judgment dated 8.4.2000 whereby he dismissed the two appeals filed by the petitioner and accepted minor’s appeal by modifying the decree for maintenance allowance enhancing the quantum of maintenance from Rs. 3000/- to Rs. 5,000/- per month. Copy of memo of appeal is Annexure “F”. Copy of Memo of appeal of respondent No. 2 is Annexure “G”. Copy of consolidated Appellate Judgment and decree is Annexure “H & H/1”.

6.

That both the judgment and decrees passed by respondent No. 3 and respondent No. 4 are illegal and without lawful authority inter alia on the following GROUNDS i)

Under Article 2-A of the Constitution, matter of maintenance is to be decided according to Muslim Law. Under Muslim Law there is no scope for grant of past maintenance to wife and child. The learned Judge family Court as well as Appellate Court had no jurisdiction to grant past maintenance to respondent No. 1 & 2 for the period from September 1995 to 10.3.1998 when the suit was filed. The impugned judgment and decree of both the learned Courts below are against the injunctions of Islam, therefore, illegal.

ii)

That the petitioner pronounced “TALAQ” thrice in one sitting and sent the written divorce deed dated 12.2.98 to the respondent No. 1. This irrevocable divorce had

become effective immediately on its execution. Sec. 313 of Muhammadan Law reads: “Divorce in writing operates an irrevocable divorce and takes effect immediately on its execution.” Sec. 7 of the Muslim Family Law Ordinance 1961 providing for the effectiveness of Talaq on receipt of notice by the Chairman is against the injunctions of Quran and Sunnah. In 1992 SCMR 1273 it was held: “Muslim Family Laws Ordinance-sec. 7 read with Article 2(a) of the Constitution”---- A divorce becomes effective even in absence of notice to the Chairman u/s 7. Ineffectiveness of divorce, in the absence of a notice to the Chairman as envisaged by sec. 7 was against injunctions of Islam. 1990 CLC 1983 and PLD 1988 Kar. 169 at 173 it was held that sec. 7 of the Muslim Family Law ordinance relating to divorce are repugnant to injunctions of Islam. In a recent Judgment of the Federel Shariat Court PLD 2000 FSC 1 it is held that sec. 7 (3) (5) of Muslim Family Law Ordinance 1961 are repugnant to injunctions of Islam. iii)

That in view of the above-mentioned law declared by the Superior Courts, divorce to respondent No. 1 was effective from the date 12.2.98 it was written and sent to her as such her suit for recovery of maintenance filed on 10.3.98 was not maintainable. Sec. 278 of Muhammadan Law reads: “If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless claim is based on a specific agreement.” In NLR 1991 SD 347 it was held: “Maintenance to wife under Islamic law. There is no scope for past maintenance to wife. In 1990 MLD 344 at 345 (e) “Suit for maintenance by a divorced wife is not maintainable”. Both the learned Courts below had failed to consider

this legal aspect of the matter and as such the judgment and decrees of both the Courts below are illegal. iv)

That suit for maintenance of the minor child was also not maintainable, as there was no refusal or neglect on the part of he father/petitioner to maintain his child. Respondent No. 1 had admitted before court that petitioner had paid her Rs. 15,000/- as maintenance allowance for the child after his birth. It was further admitted by respondent No. 1 that gold ornaments were also given to her by the petitioner at the time of marriage. This was explained by the petitioner that on the asking of her parents, these ornaments were given to her not as a gift, but just to enhance the prestige of her family in the “Bradri” of the respondent and these ornaments were returnable to the petitioner afterwards. But admittedly, these ornaments, the price of which is Rs. 250,000/- are with the respondent No. 1 which amount is more than sufficient for the maintenance of child even till he attains majority. The learned Court below had failed to take note of these material admissions of the respondent No. 1 and as such had failed to exercise jurisdiction vested in them.

v)

That the petitioner for the purpose of bringing his child up had made an application for the custody of the minor firstly to the learned Guardian Judge, Jhang, when respondent No. 1, in order to defeat the petitioner’s application, removed the minor from Jhang where she permanently resides, to Lahore. The petitioner, then made another application before the learned Guardian Judge, Lahore for the custody of his minor son which is still pending adjudication. Respondent No. 1, having removed the minor from the constructive custody of the petitioner, has lost right of “HAZANAT”. The petitioner as such is not under legal obligation to pay the maintenance allowance through his divorced

mother. Both the learned Courts below, while making the judgments and decrees have lost sight of this legal aspect of the matter rendering the judgments illegal. vi)

That both the impugned judgments suffer from nonreading of material evidence of record. The petitioner’s documentary evidence Ex D1 to Ex D7 and Mark D & E were material for ascertaining the financial position of the petitioner. Both the learned Courts below have failed to consider this material evidence and illegally and arbitrarily proceeded to decide the important question of quantum of maintenance without first ascertaining the financial position and annual income of the petitioner. This non-reading of material evidence has rendered the judgments illegal and without lawful authority. 1994 MLD 574 it was held: “Determination of rate of maintenance payable by father to his son without determining monthly income of father and without taking into consideration evidence on record is illegal and liable to be set aside”.

vii)

In

PLD

1958

West

Pakistan

Lah.

596

held:

“Muhammadan Law—past maintenance cannot be claimed from father unless previously fixed by the Court” In 1991 CLC 766 it was held: “Muslim family law ordinance sec. 9—Past maintenance cannot be granted to minor but application of father for custody of minor being

pending

before

Guardian

Judge,

future

maintenance till decision of application could be granted to minor.” viii) That Mr. Zafar Iqbal Khan advocate counsel for the petitioner/defendant in the maintenance suit and appeal had referred as many as 19 authorities and provisions of law and handed over to the learned judges Photostat copies of these authorities and legal references with a

typed index to facilitate their perusal. But the learned judges had failed to consider, refer or discuss these authorities in their judgments. Had the learned judges perused these authorities, the judgments would have been different. Copy of the typed index of authorities referred to is attached with this petition. Wherefore, it is respectfully prayed that the Hon’ble Court may be pleased to accept this writ petition and to set aside both the impugned judgments and decrees passed by the respondents No. 3 & 4 respectively and to dismiss the plaintiff’s suit for maintenance with costs. Any other relief, which in the wisdom of this Hon’ble Court is adequate, may be awarded. Petitioner,

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, LAHORE.

C.M. No. _____________/2000 In W.P. No. _____________/2000 Muhammad Asad

Vs.

Mst. Humera Naz etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURE. ========================================= Respectfully Sheweth: That the original Nikah Nama was sent to Mst. Humera Naz which is with her, the certified copy of the same Annexure “A” is not available with the petitioner. However, uncertified/photo state copy of the same has been annexed with the petition, which is true copy of original document. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copy of Nikah Nama. An affidavit is attached. PETITIONER Dated: _________

(Muhammad Asad)

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, LAHORE.

C.M. No. _____________/2000 In W.P. No. _____________/2000 Muhammad Asad

Vs.

Mst. Humera Naz etc.

Dispensation Application

Affidavit of: Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of April 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

C.M. No. _____________/2000 In W.P. No. _____________/2000 Muhammad Asad

Vs.

Mst. Humera Naz etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURE. ========================================= Respectfully Sheweth: That the original Nikah Nama was sent to Mst. Humera Naz which is with her, the certified copy of the same Annexure “A” is not available with the petitioner. However, uncertified/photo state copy of the same has been annexed with the petition, which is true copy of original document. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copy of Nikah Nama. An affidavit is attached. PETITIONER Dated: _________

(Muhammad Asad)

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, LAHORE.

C.M. No. _____________/2000 In W.P. No. _____________/2000 Muhammad Asad

Vs.

Mst. Humera Naz etc.

Dispensation Application

Affidavit of: Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of April 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE COURT OF DISTRICT JUDGE, MULTAN.

Sheikh Muhammad Sadiq S/o Ahmad Ali, caste Sheikh, R/o Plot No. 221 Timber Market Multan. VERSUS 1. 2. 3. 4. 5. 6.

Haji Muhammad S/o Ghulam Sarwar, caste Jat Somra, R/o Plot No. 221 Timber Market Multan. Ghulam Muhammad S/o Ghulam Sarwar, caste Jat Somra, R/o Plot No. 221 Timber Market Multan. Muhammad Iqbal S/o Ameer Bakhsh, caste Jat Somra, R/o Plot No. 247 Timber Market Multan. Abdul Malik both sons of Ghulam Muhammad Muhammad Nasir Minors caste Jat Somra, resident of Plot No. 221 accompanied by Abdul Khaliq real brother. Ghulam Sarwar S/o Fazal Ilahi, caste Rajput, R/o Plot No. 145 New Timber Market Multan. Application u/s 151 C.P.C. seeking direction for simultaneous hearing of the following four cases.

1.

Sh. Muhammad Ashiq Vs. Ghulam Muhammad & others. Suit for specific performance of agreement to sell plot No. 221 dated 20.6.2000.

2.

Ghulam Sarwar Vs. Haji Muhammad Suit for Specific performance to sell plot No. 221 dated 20.6.2000

3.

Haji Muhammad Vs. Sh. Muhammad Sadiq Suit for recovery of rent of Plot No. 221 dated 20.6.2000

4.

Muhammad Iqbal Vs. Sh. Muhammad Sadiq Ejectment application of Plot No. 221 dated 13.5.2000

Respectfully Sheweth: 1. That all the above mentioned four cases are pending in the Court of Ch. Muhammad Azam Civil Judge, Multan and on at evidence stage.

2.

That previously these cases were pending in 2 different Courts and on the application of the opposite party they were transferred to one Court.

3.

That it was agreed between the parties that firstly the two suits for specific performance of agreement to sell be got decided and their decision shall determine the fate of the remaining two cases for recovery of rent and ejectment applications.

4.

That now under the general instructions of High Court, the ejectment application is being taken first by fixing a short dated while the remaining 3 cases are adjourned for long date.

5.

That all the four cases are inter-linked, parties are the same, and the property No. 221 Timber Market is involved in all the 4 cases. The decision of one case shall effect the decision of other cases and in order to avoid any conflict in decision, the property demand that all the 4 cases should be heard simultaneously. Wherefore, it is respectfully prayed that direction be issued to the learned Trial Court to hear all the 4 cases simultaneously. Humble Applicant

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE COURT OF CH. MUHAMMAD AZAM CIVIL JUDGE/RENT CONTROLLER, MUTLAN.

In re: Muhammad Iqbal and others.

Vs.

Sufi Sh. Muhammad Sadiq

Ejectment Application Petition for dismissal of Ejectment Application being not maintainable. Resepectfully Sheweth: 1. 2. 3. 4.

5.

6.

That the above captioned ejectment application is pending before this Hon’ble Court in which next date of hearing is fixed as 3.6.2000. That in the written statement, a plea was raised by the respondent “that ejectment application is not maintainable in law as such is liable to be dismissed”. That on such plea, the following issue No. 2 was framed. “Whether the ejectment application is not maintainable” That the premises in question is situated in an Industrial/Factory Area of Timber Market Multan wherein Timber Goods are manufactured for sale through a process of Saw Mills. That in the Rent Restriction Ordinance, the definitions of terms “Building”, “Land” & “Premises” do not include Saw Mills and as such the provisions of Rent Restriction Ordinance are not applicable and learned Rent Controller has no jurisdiction in this matter and as such ejectment application is not maintainable. That the question as to whether the provisions of the Rent Restriction Ordinance are applicable or not to the present ejectment application is a question of jurisdiction which can be raised at any stage even at an appellate stage. Wherefore, it is respectfully prayed that ejectment application being not maintainable, the same be dismissed with cost. Humble Petitioner/Respondent (Sufi Muhammad Sadiq) Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: Muhammad Iqbal and others.

Vs.

Sufi Sh. Muhammad Sadiq

AFFIDAVIT of: Sheikh Muhammad Sadiq S/o Ahmad Ali, caste Sheikh, aged 70 years, a trader by occupation, R/o Timber Market Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this ____day of June 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT