2007 PLP 1692 (MLD)

IQBAL HAMEED UR REHMAN, J.

Through the instant petition the petitioner seeks setting aside the impugned judgments and decrees, dated 7-3-2007 and 18-5-2007 passed by the learned-Judge Family Court and the learned Addl. District Judge, Samundri, respectively.

2. Brief facts of the case are that respondent No.1 was married with the petitioner on 8-10-2004 and it was only after 11 months of the marriage that the relations between the spouses became strained and then respondent No.1 was expelled from the house. Respondent No.1 filed a suit for recovery of maintenance allowance uptil the period of Iddat and recovery of dowry articles against the petitioner. The petitioner also filed a suit for restitution of conjugal rights. Both the suits were consolidated. After recording the evidence of the parties the learned Judge Family Court, partially decreed the suit of respondent No.1 to the extent of recovery of dowry articles and ordered the petitioner to pay Rs.50,000 against the dowry articles vide judgment and decree, dated 7-3-2007. The petitioner preferred an appeal in the Court of learned District Judge, Samundari, which was dismissed vide impugned judgment and decree, dated 18-5-2007. Both the impugned judgments and decrees of the Courts below have been assailed through the instant writ petition.

3. The learned counsel for the petitioner contended that respondent No.1 has not been able to substantiate her claim for the recovery of dowry articles through substantial evidence regarding the same before the learned Judge Family Court. He further contended that during the pendency of the suit before the trial Court, the petitioner had stated that he had some dowry articles in his possession but dot according to the list of dowry articles produced by the respondent/plaintiff and that the petitioner/defendant had offered to settle the same on oath but the same has .not been taken into consideration by both the Courts below and that the trial Court should have proceeded to decide the suit on the basis of section 8 of the Oaths Act, 1873 and should have directed the parties to take oath but no such procedure has been adopted, as such, illegality has been committed. Reliance is placed on the case of Ahmad Khan and others v. Jewan (PLD 2002 SC 655) and Muqadar Shah and others v. Mudam Gul (2005 CLC 1441).

4. Arguments heard, record perused.

5. The learned Addl. District Judge held that evidence of both the parties shows that the findings of the learned Judge Family Court, does not suffer from any illegality or any sort of irregularity. The petitioner/ defendant has admitted to be in possession of some of the dowry articles, therefore, the findings of the learned trial Court does not deserve any interference as the dowry articles are always the ownership of the lady. The learned Appellate Court has accepted the matter regarding the depreciation of value of the articles and maintained in the findings of the learned trial Court. The learned Judge Family Court while deciding issue No.2 has held that the receipt of dowry articles had been submitted by the plaintiff/respondent No. l which supported the version of the plaintiff regarding providing of dowry articles according to the list Mark-A and the same list has not been successfully rebutted by the defendant/petitioner and he could not bring on record any independent witness in rebuttal of evidence of the plaintiff/respondent No.1 and the learned Judge Family Court, after proper scrutiny of the list of dowry articles and excluding some items had decreed the suit for the recovery of the dowry articles to the extent of Rs.50,000 and the learned Appellate Court after proper appreciation of the evidence on record upheld the findings of the learned Judge Family Court. The perusal of Mark-A reveals that these are the articles which are ordinarily given to a bride at the time of her marriage. Both the Courts below have given concurrent findings, which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such, the petitioner has failed to show any illegality or irregularity committed by .the Courts below in the impugned judgments so as to warrant interference by this Court in exercise of its extraordinary Constitutional jurisdiction. Reliance in this context can be placed to the case of Muhammad Nawaz v. Mst. Doulan and 2 others (2000. YLR 2637) and Lahore Development Authority through Director General v. Shakil Ahmad Naser and 2 others (2001 CLC 863). This Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of the Courts below. Moreover, this Court cannot interfere in the concurrent findings of facts arrived at by the Courts below after proper appraisal of evidence on record in exercise of its Constitutional jurisdiction in the absence, of any illegality or any .other error of jurisdiction committed by the Courts below as per law laid down in the case of Mst. Khair-un-Nisa v. Abdul Majeed and others (1989 MLD 1945). Where the question of facts which has been statedly discussed and apprised, High Court should decline to interfere with the findings of the C Family Court. Reliance in this context can be placed to the case of Adnan Aziz v. Civil/Family Judge, East Karachi (2002 CLC 113). Moreover, the contention raised by the learned counsel for the petitioner that the matter should have been decided on oath regarding the dowry articles according to his offer. In this regard no application for deciding the suit on oath has been filed neither before the' trial Court nor before the learned first appellate Court nor the petitioner had taken any oath before the trial Court give effect to the offer of oath, therefore, the same had not been considered by the trial Court. The Court of law is to decide a case keeping in view the rights and liabilities of the parties in the light of the record on file and not merely to dispose of a case in a hurry. Courts being the ultimate protectors of the rights of the litigants, had the responsibility to ensure the valuable rights of such litigants are not to be destroyed by their unintentional faults and innocent mistakes. Court should avoid the situation where one party in the heat of discussion, or in emotional situation offered oath to the opposite party without due consideration of its effects and without submitting a proper application and the opposite party in the same circumstances immediately accepted the offer without having a chance of patiently considering the consequences of oath. Reliance in this context can be made to the case of Muqadar Shah and others v. Mudam Gul (2005 CLC 1441). No patent illegality has been pointed out by the learned counsel for the petitioner in the impugned judgments of both the Courts below.

5. For the foregoing reasons, I do not find any force in this writ petition which is dismissed in limine. M.H./K-28/L Petition dismissed.