2012 PLP 1675 (MLD)

KHALID MAHMOOD, J.

Petitioner Sanaullah, through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, has prayed for setting aside the judgment and decree of learned Additional District Judge/Izafi Zilla Qazi-IV, Swat dated 4-2-2010 and judgment and decree dated 3-11-2009 of Civil Judge/Judge Family Court, Swat, being illegal and without lawful authority.

2. The brief facts of the case are that respondents/plaintiff instituted a suit for recovery of 10 Tolas dower along with three Tolas' jewelry, recovery of maintenance allowance and medical treatment charges Rs.3000, maintenance of minor son @ Rs.2000 from September, 2007, dowry articles or in alternate its worth, and for separate house etc. The suit was contested by the present petitioner through submission of written statement. The learned trial Court after framing of issues, recording of pro and contra evidence and hearing the learned counsel, vide judgment dated 3-11-2009 granted decree to the extent of prayer "A" while in respect of prayer "B" of the plaint, respondent No.1 was held entitled to maintenance allowance @ Rs.2,000 per month from 1-10-2007 till `Iddat' period. Similarly, in respect of prayer "Jeem", the trial Court enhanced the maintenance allowance which was fixed during pendency of suit @ Rs.700 to Rs.1500 per month from period 1-10-2007 till majority, while rest of the suit was dismissed. Aggrieved from the afore-said judgment and decree, both the parties filed separate suits before the lower appellate Court. The learned appellate Court after hearing, maintained the decree to the extent of dower, maintenance, while to the extent of dowry, the order of trial Court was set aside; similarly the appeal filed by the petitioner was dismissed. Hence, present writ petition.

3. Counsel for petitioner argued that the Courts below badly failed to apply their judicial mind while deciding the matter; that the findings of both the Courts are against law and facts; that both the Courts are at variance; that provisions of Family Court Rules have totally been ignored; that the impugned findings are in contrast with view held by the apex Court; that both the courts below have based their findings upon forged, fictitious and fabricated receipts. On the other hand, learned counsel for respondents supported the findings of Courts below and argued that the matter has properly been resolved keeping in view the evidence of parties and material on record, which need no interference by this Court in its constitutional jurisdiction. He further argued that in constitutional jurisdiction, reappraisal of evidence is not permissible, hence no adverse inference can be drawn from the impugned findings.

4. The main grievances of the petitioner were that prior to the institution of present suit, the respondent had withdrawn her case hence on the principle of res judicata, the present suit was not maintainable and that the list of dowry articles was not proved by the petitioner even then the decree was granted to her. He was also aggrieved with the quantum of maintenance. So far question of res judicata is concerned, this law point has properly been addressed by the learned trial Court below because for subsequent events i.e. cruelty, non-maintenance etc. the respondent have rightly brought the suit on the basis of fresh cause of action. So far question of dower is concerned, the learned Court below after proper appreciation of evidence and in the light of the statement of both the parties has rightly granted a decree of dower. So far question of dowry articles is concerned, learned lower appellate Court had rightly pointed out that the petitioner had not filed appeal against decree in respect of prayer "C" of the respondent/plaintiff wherein the recovery of dowry articles has specifically been mentioned which was granted to the respondent. It is also admitted fact that respondent/plaintiff was expelled by the petitioner from his house; certainly the dowry articles were left in the house of the petitioner. On this score too, after proper appraisal of evidence, the decree has been granted in favour of respondent plaintiff. We have given anxious thought to the arguments led by both the parties and we are of the considered opinion that the judgment of both the courts below are quite reasonable, equitable, just and proper, hence needs no interference. Hence, the writ petition, being meritless, is dismissed. HBT/255/P Petition dismissed.