2010 PLP 129 (YLR)

S. ALI HASSAN RIZVI, J.

Mst. Farzana Younis petitioner had filed joint claims for dissolution of marriage, recovery of maintenance allowance and recovery of dowry articles or in the alternative for an amount of Rs.5,67,041 as price of dowry articles.

2. The parties were put on trial on the following issues only to the extent of recovery of dowry articles "ISSUES (1) Whether the plaintiff is entitled to get a decree for recovery of dowry articles as per list attached or in the alternative amount of Rs.5,67,041 as prayed for? OPP. (2) Relief." Both the parties led their evidence for and against Mst. Farzana Younis plaintiff herself appeared as P.W. and she examined in support of her claim Amanat Ali as P.W.2. These witnesses were not cross-examined by the defendant/respondent No.3, although numerous opportunities were granted to him. His right of cross-examination was consequently closed. On behalf of the plaintiff documentary evidence like Exh.Pl to P9 was also produced.

4. On the other hand, the defendant/ respondent No.3 himself appeared as D.W.1 and examined Tahir as D.W.2.

5. The learned Judge, Family Court decided issue No.1 in favour of the petitioner/plaintiff and found that the price of the articles given in the plaint at Sr. Nos.1 to 31 and 35 to 51 was Rs.3,72,

140. He decreed the suit accordingly.

6. In appeal, the learned Additional District Judge, Faisalabad upheld the judgment and decree rendered by the learned Judge, Family Court but reduced the amount of dowry articles from Rs.3,72,150 to Rs.3,00,000 vide judgment and decree dated 7-10-2008.

7. I have heard the learned counsel for the parties and gone through the record.

8. The learned trial Court while decreeing the suit to the extent of dowry articles relied on the list attached with the plaint and the articles mentioned at Sr. Nos.1 to 31 and at Sr. Nos.35 to

51. In the alternative he fixed the value of the dowry articles as Rs.3,72,150 as against Rs.5,67,041 claimed in the plaint. He kept in mind the factum of the wear and tear of the common household articles. The learned Appellate Court reduced the aforesaid amount of Rs.3,72,150 as decreed by the learned trial Court as alternative to Rs.3,00,000.

9. I have gone through the appellate judgment. The factum of wear and tear of the common household articles was duly brought into consideration by the learned trial Judge and this was the reason why he decreed the price in the alternative of the dowry articles as Rs.3,72,150 as against the claim of the plaintiff/petitioner of Rs.5,67,

041. As already noted in para.3 ante, the P.Ws. having not been cross-examined, their statements must be held to have emerged unscathed. The learned' appellate Judge did not give any sound reason for reducing the decretal amount to Rs.3,00,

000. He appears to have applied the rule of thumb as against the evidence available on record. The learned appellate Judge was bound to meet the reasons recorded by the learned trial Judge who had also the advantage of seeing the demeanour of the witnesses Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 and Mir Haji Khan and others v. Mir Aijaz Ali and others PLD 1981 SC 302 may be seen. The grosso-modo view taken by the learned Additional District Judge in appeal, was without lawful authority. It was not based on any evidence or sound reasons. Indeed, it was the result of misreading of the material evidence I, therefore, allow this writ petition and setting aside the judgment/decree dated 7-10-2008 passed by the learned Additional District Judge, restored the judgment/decree dated 25-3-2008 handed down by the learned Judge, Family Court, Faisalabad. This being a family matter, the parties are left to bear their own costs. H.B.T./F-25/L Petition allowed.