2015 PLP 89 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment and decree dated 24-9-2012 passed by the learned Additional District Judge, Rawalpindi, whereby he reversed the judgment and decree dated 11-5-2012 of the learned Judge Family Court dismissing a suit for recovery of gold ornaments weighing 21 tolas.

2. The facts, in brief, as emerge on perusal of the record are that respondent No.1 has filed a suit for recovery of gold ornaments weighing 21 tolas. It was contended that these ornaments were given to her at the time of her marriage and she had become the owner of these bridal gifts, which have been kept by the defendant/petitioner.

3. The defendant/petitioner contested the suit. It was contended that an earlier suit filed for the recovery of the gold ornaments was withdrawn so the suit was not maintainable. It was further contended that the plaintiff/respondent filed another suit for recovery of articles of dowry and bridal gifts, which was decreed and as such the instant suit was not maintainable.

4. After framing the issues and recording the evidence, the learned trial court proceeded on to dismiss the suit. The learned Additional District Judge accepted the appeal filed by the plaintiff/respondent No.1 and passed a decree for recovery of the gold ornaments.

5. Learned counsel for the petitioner has contended that the first suit filed by respondent No.1 was withdrawn and thereafter she filed another suit for recovery of dowry articles and bridal gifts, which was decreed and as such nothing was due from the defendant/petitioner. It is urged that after receipt of the dowry articles and bridal gifts including ornaments, etc., the respondent could have not claimed more ornaments or any other article. It is contended that well reasoned judgment of the learned trial court was reversed by the learned ADJ by ignoring these important aspects of the matter in dispute and that the impugned judgment and decree are result of misreading of the evidence.

6. Controverting these arguments learned counsel for respondent No.1 has contended that the earlier suit was withdrawn due to a compromise entered into by the parties and the second suit was in respect of the articles of dowry and the gifts given to the relatives of the petitioner and was not in respect of the bridal gifts, hence the suit was rightly decreed by the learned appellate Court.

7. The first suit filed for recovery of the gold ornaments weighing 21 tolas worth Rs.8,40,000 was withdrawn on 22-12-2010 by learned counsel for respondent No.1 with a statement that there was no need to pursue the suit so the same be dismissed as withdrawn. Neither any compromise was entered into nor it was so mentioned in the statement by learned counsel for respondent No.1. The 'Wakalatnama' in favour of an Advocate includes the power to make the statement on behalf of the party executing the same. Again in the suit for recovery of articles of dowry, the gifts worth Rs.3,95,000 were also claimed and that suit was also decided on merits. Had there been any other ornament or personal belongings of respondent No.1 in possession of the petitioner, the same should have been claimed in the said suit also. It is true that the provisions of Order XXIII Rule 1(3) C.P.C. and Order II, Rule 2, C.P.C. are not specifically applicable on the proceedings before the Judge Family Court but the principles underlying the provisions of the Code of Civil Procedure, 1908, if not inconsistent with the provisions of the Family Courts Act, 1964 and Rules made thereunder, may be followed by the Family Court. The learned ADJ ignored the dismissal of the first suit in view of the statement of the learned counsel for respondent No.1 and decision of the second suit on merits and erred in reversing the well reasoned judgment passed by the learned trial court. He has failed to perform his duties in accordance with law. The impugned judgment and decree of the learned ADJ are not sustainable in the eyes of law. This being so, the instant writ petition is accepted and the impugned judgment and decree passed by the learned ADJ are set aside and the judgment and decree dated 11-5-2012 of the learned trial court are restored. AG/H-11/L Petition accepted.