2019 PLP 56 (CLCN)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned petition is directed against the order dated 03.04.2018, passed by the learned IInd Additional District Judge, Shaheed Benazirabad, dismissing the Family Revision Application No. 35 of 2017 re: Waseem Baig v. Mst. Nosheen, filed against the order dated 18.10.2017, passed by Family Judge, Nawabshah in execution proceedings of Execution Application No.2 of 2016, emanating from the judgment and decree, passed by the learned Family Court in Family Suit No.155 of 2014, whereby the petitioner was directed to return the remaining 'Jahez' articles including gold ornaments as per the subject list or to pay the equivalent amount thereof without further delay.

2. Briefly, the facts of the case are that respondent Mst. Nosheen was married with the petitioner/defendant Waseem Baig on 25.10.2009 against the Haq Mahar, which was promised to be paid to the respondent afterwards on demand and at the time of Rukhsati of the respondent, her parents had given dowry articles including ornaments of gold weighing five tollas, total amounting to Rs.5,50,000/-. Out of this wedlock, the parties were blessed with one baby Laraib. However, due to family dispute arose between the parties, the respondent left the house of the petitioner/defendant and started residing in the house of her parents. As the petitioner failed in providing maintenance to the respondent and minor baby Laraib; paying the delivery expenses etc to the plaintiff; and returning the dowry articles including gold ornaments to the respondent Mst. Nosheen, hence she filed the aforesaid Family Suit in the Court of Family Judge, Nawabshah, which after the evidence led by the parties, was decreed vide judgment dated 14.11.2015 and decree dated 18.11.2015 by the Family Court, whereby the petitioner was directed to return "Jahez" articles and gold ornaments or equivalent amount thereof within thirty days of passing of the decree. The petitioner was further directed to pay maintenance at the rate of Rs.2000/- per month to the plaintiff for the last three years till she was divorced by the petitioner/defendant; maintenance at the rate of Rs.2000/- per month for the minor deceased baby Laraib from February, 2011 to January, 2013; the dower amount (Haq Mahar) of Rs. 25,000/-; and, delivery expenses of Rs.30,000/- to the plaintiff/respondent.

3. The petitioner/defendant did not challenge the aforesaid judgment and decree passed by the learned Family Court, which attained finality. The Execution Application filed by the decree holder/respondent was also allowed vide order dated 05.03.2016 and in terms of judgment and decree, passed by the learned Family Court, the petitioner was directed to hand over the dowry articles to the decree holder as per decree and list of articles appended to the plaint. The petitioner in pursuance to the judgment and decree handed over the articles to the decree holder/respondent in a piecemeal, but admittedly gold ornaments were not returned to the respondent/decree holder, therefore, the learned Family Court/Executing Court passed the impugned order dated 18.10.2017, directing the petitioner/defendant to hand over gold ornaments to the respondent/decree holder. The petitioner filed Family Revision application in the Court of learned District Judge, which was dismissed by the learned IInd: Additional District Judge, Shaheed Benazirabad vide order dated 03.04.2018. The petitioner has now filed this petition.

4. It is, inter alia, contended by the learned counsel for the petitioner that gold ornaments were not specifically mentioned in the plaint, therefore, the same were not returned to the respondent/decree holder; and, that the learned Executing Court as well as Revisional Court have not considered such aspects of the case. He, therefore, prays that the case may be remanded to the learned executing Court for decision afresh.

5. Conversely, learned counsel for the respondent No.1 has mainly contended that the respondent had filed a suit in the year 2014 and admittedly she had taken all the dowry articles to the house of the petitioner as per list exchanged by the parties at the time of Ruksati of the respondent, which included ornaments of the gold; that the petitioner has been dragging the respondent/decree holder here and there without any reasonable cause. Learned counsel has submitted that ornaments of the old are specifically mentioned in the list of articles annexed with the plaint and there is no ambiguity therein; and, that the petitioner, who is obliged to return the gold ornaments weighing five tollas or its equivalent amount, has made every attempt to deprive the respondent/decree holder fruit of the decree. She, therefore, prays that the petition may be dismissed.

6. I have considered the submissions of the learned counsel for the petitioner and have gone through the material available on the record.

7. From a perusal of the record, it would be seen that the impugned judgment and decree dated 18.11.2015, passed by the Family Court, whereby the petitioner was directed to return Jahez articles including gold ornaments or equivalent amount thereof within thirty (30) days of the passing of the decree; to pay maintenance to the plaintiff for herself and her minor baby Lareb etc. as discussed in the said judgment and decree, having not been challenged by the petitioner, had attained finality; the execution application filed by the decree holder/respondent No.1 Mst. Nosheen was also allowed vide order dated 05.3.2016 and in terms of the judgment and decree passed by Family Court, petitioner was directed to hand over dowry articles as per list appended to the plaint; in pursuance to the judgment and decree, the petitioner has handed over the articles to the decree holder/respondent in a piecemeal, but admittedly gold ornaments have not been returned to the respondent/decree holder Mst. Nosheen by the petitioner till date. As the gold ornaments were not returned to the respondent/decree holder by the petitioner, therefore, by impugned order dated 18.10.2017, the learned Family Court/Executing Court directed the petitioner/defendant to hand over gold ornaments to the decree holder. The petitioner instead of complying with the decree, filed a Family Revision application was dismissed by the learned IInd Additional District Judge, Shaheed Benazirabad vide impugned order dated 03.04.2018, which even otherwise, in my humble view, was not competent, as there is no provision for Family Revision Application provided under the provisions of Family Courts Act, 1964. The only contention raised by the learned counsel for the petitioner is that gold ornaments were not specifically mentioned in the list of articles appended to the plaint, therefore, the petitioner could not return the ornaments of gold or value thereof to the respondent/decree holder. When the learned counsel for the petitioner was confronted to the list of dowry articles appended to the plaint, the learned counsel has conceded that the particulars of the ornaments of gold are shown in the list of articles, but he says that in the pleadings and in the subject list, the weight thereof is not mentioned. This contention of the learned counsel for the petitioner is also totally misconceived as prayer clause (e) of the plaint, which is reproduced in the judgment of learned Family Court, clearly shows the weight of gold ornaments as five (5) tollas as per list. In such view of the matter, I am of the considered view that the petitioner by filing applications and petitions etc has been increasing the miseries of the petitioner just to satisfy his ego and this petition is also an attempt of the petitioner to delay and/or to deprive the decree holder/respondent/ plaintiff of her ornaments of the gold or value thereof, otherwise there is no justification in the present petition. This petition being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 10.09.2018, whereby this petition was dismissed with no order as to costs. SA/W-4/Sindh Petition dismissed.