2009 PLP 2215 (YLR)

JAMSHED RAHMAT ULLAH, J.

The petitioner through this constitutional petition has called in question the impugned judgment dated 14-6-2005 passed by learned District Judge, Lodhran.

2. As per contents of the petition, the petitioner was married to respondent No.2 on 26-12-1986 and from this wedlock, one son namely Mujahid Hussain was born, who is in the custody of the petitioner. Respondent No.2 divorced the petitioner on 27-3-1993 but the dowry articles of the petitioner were not returned to her. The petitioner filed a suit for the recovery of dowry articles on 28-4-2004 before learned Judge Family Court, Dunyapur District Lodhran. The learned Judge Family Court vide his judgment and decree, dated 1-4-2005 decreed the suit in favour of the petitioner.

3. Against the above said judgment and decree, respondent No.2 filed an appeal before the learned District Judge, Lodhran, who vide his judgment and decree dated 14-6-2005 allowed the appeal on the ground of limitation, observing that right to sue for dowry accrued when the divorce was made on 27-3-1993. The suit filed on 28-4-2004 after 11 years of divorce is barred by time.' As far as the merit of the case is concerned, the same was not touched.

4. The learned counsel for the petitioner agrees that the dowry articles are in the custody of respondent No.2 and this fact is even admitted by him. He further argues that the learned District Judge accepted the appeal on the ground of limitation, which is not applicable in the present case. Further argues that the date of limitation starts from the date of refusal to return the dowry articles. According to him, in the present case the cause of action regarding the dowry articles accrued one week before the filing of the suit before the learned Judge Family Court. In this regard the learned counsel relies upon 1995 SCMR 885, 1996 MLD 2017 Lahore, PLD 2001 SC 128 and 2000 MLD 1301 Lahore.

5. On the other hand, the learned counsel for the respondent No.2 argues the petitioner was divorced on 27-3-1993 and the suit for dowry articles was filed on 28-4-2004, meaning thereby it was filed after eleven years of divorce. He further contends that the limitation will start from the day when the petitioner seized to be wife of respondent No.

2. In this regard he relies upon PLD 2006 Pesh.

96. Further contends that if any objection on the question of limitation was involved, then the petitioner should have filed application before the learned District Judge, Lodhran for framing of issue so that question could have been decided after recording of evidence. Further contends that the application for amendment of the appeal was filed on 26-5-2005 before the worthy District Judge, Lodhran and the same was decided in favour of respondent No.2 on 30-5-2005 and said decision has never been challenged by the present petitioner before any forum.

6. In rebuttal the learned counsel for the petitioner contends that regarding the framing of issues, it was duty of the learned Appellate Court to frame the same as mixed question of law and facts were involved in the case.

7. I have heard the arguments of the learned counsel for the parties and have also perused the record.

8. The question that boils down for determination in this case is that whether the suit filed by the present petitioner before the learned Judge Family Court was time-barred or not. The dowry articles were not in unlawful possession of the husband until wife demanded the same and husband refused to return them. In the present case it is clear from para 6 of the plaint filed by the present petitioner before the- learned Judge Family Court, where it is explicitly mentioned that cause of action accrued a week before when the present respondent No.2 refused to give the dowry articles on I the demand of the present petitioner. In reply to this para respondent No.2 stated in his written statement that it is incorrect, therefore, denied. From the pleadings of the parties the petitioner has taken a definite stand that respondent No.2 refused to return the dowry articles a week before the filing of the suit which was specifically denied by the petitioner. In my opinion the limitation has started one week before the filing of the suit so the suit is not barred by limitation. In this regard I am fortified by the case captioned as Shahzad Javed v. Mst. Sadia Rauf and another reported in 2000 MLD 1301. For the foregoing reason, this writ petition is hereby accepted. The impugned judgment dated 14-6-2005 passed by the - learned District Judge Lodhran/respondent No.1 is hereby set aside Resultantly the judgment and decree passed by the learned Judge Family Court dated 1-4-2005 is hereby restored. There is no order as to costs. M.H./H-22/L Petition allowed.