2009 PLP 691 (MLD)

ALI AKBAR QURESHI, J.

This constitutional petition calls in question the judgments and decree, dated 3-7-2008 and 27-3-2008 passed by the learned Courts below whereby the suit filed the petitioner for the recovery of dowry articles was dismissed.

2. The petitioner who was married with the respondent because of strained relations was turned out from the house of the respondent. The petitioner for the recovery of dowry articles filed a suit before the learned Judge Family Court. The respondent filed the written statement and controverted all the contentions made by the petitioner. The learned trial Court framed as many as ten issues, recorded the evidence of the parties and finally dismissed the suit. The petitioner being aggrieved of the said judgment and decree, preferred an appeal but the same was too dismissed by the learned appellate Court, hence this constitutional petition.

3. The learned counsel for the petitioner contended that the findings recorded by the both the learned Courts below are totally contrary to the record and particularly the evidence recorded by the parties. Further contended that both the learned Courts below committed serious irregularity by not adverting the evidence recorded by the respondent and drawn the erroneous conclusion which is unsustainable in law.

4. Conversely, the learned counsel for respondent submitted that the petitioner while appearing in the witness box could not prove her contention, therefore, the concurrent findings recorded by the learned Courts blow are strictly in accordance with the facts of the case. Lastly contended that the petitioner also failed to adduce any other witness in support of her contention so the learned trial Court as well as the learned appellate Court rightly observed that the petitioner is not entitled for the decree as prayer for.

5. I have heard the learned counsel for the parties and perused the record.

6. Both the learned Courts below have dismissed the claim of the petitioner on the ground that the petitioner could not adduce even a single witness in support of her contention and, therefore, is not entitled for the claim and dowry articles. I myself have perused the statements recorded by both the parties while appearing in the witness box. The petitioner specifically stated the names of the articles and also the gold ornaments given to her at the time of marriage by her parents. The petitioner also given the price of the aforesaid articles which is Rs.1,31,

155. The respondent has not specifically cross-examined this part of the statement given by the petitioner so there is every reason to believe that the respondent has admitted the claim of the petitioner. The respondent who himself appeared in the witness box and stated that the dowry articles were returned to the petitioner but in the same breath stated that the dowry articles were returned to the petitioner by his family members and at that time he was not present. The respondent has also admitted that the dowry articles were given to the petitioner by her parents but the same was taken away by the petitioner: The respondent has also admitted, that the respondent has not divorced to the petitioner, therefore, it is very strange to believe that the respondent returned all the dowry articles to the petitioner before divorcing her. In our society, normally the dowry articles are not returned even after divorce the girls and the ladies had to file the suits for the recovery of dowry articles. The careful examination and perusal of the evidence available on the file is sufficient to establish and observe that the dowry articles were given to the petitioner by her parents and those are still lying in the house of the respondent. The learned trial Court has also wrongly non-suited the petitioner; that the petitioner could not produce any other witness in support of her contention but the learned Courts below have totally ignored the fact of the record that the respondent also failed to produce any other witness to rebut the contention of the petitioner, therefore, the findings concurrently recorded by the learned Courts below are totally unjustified, illegal, void ab-initio and against the settled proposition of law.

7. For the foregoing reasons, this petition is accepted, the judgment and decree, dated 3-7-2008 and 27-3-2008 passed by the learned Courts below are set aside and the petitioner is entitled to recover the dowry articles stated in her evidence and in lieu thereof Rs.1 lac. No order as to costs. H.B.T./A-152/L Petition accepted.