2012 PLP 671 (SCMR)

JAWWAD S. KHAWAJA, J.

Notice was issued to the respondents on 11-11-2011 in the following terms:-- "The petitioner No.1 Khadeeja Bibi was formerly married to Abdul Raheem respondent No.1. The petitioners filed a consolidated suit seeking maintenance for the three children as well as return of dowry articles claimed by the petitioner No.1. The trial Court vide judgment dated 19-11-2009 decreed the suit for maintenance but did not pass the decree for articles of dowry or the value in lieu thereof. On appeal, the learned Additional District Judge vide judgment dated 23-2-2010 reduced the maintenance per child and also allowed the claim of the petitioner No.1 for articles of dowry to the extent of the value of Rs.1,50,

000. The respondent filed Writ Petition No.7385 of 2010 which has been allowed. As a consequence, the decree for articles of dowry has been set aside on the ground that no issue in respect thereof was framed by the trial Court.

2. Learned counsel has firstly contended that issue No.2 did encompass the question of articles of dowry. This issue was framed in the following terms:-- "Whether the plaintiffs have no cause of action against the defendant to file the suit? OPD"

3. Secondly, it is contended that even if the Court had come to the conclusion that no issue had been framed, the mater should have been sent back to the trial Court.

4. In the first instance, let notice issue to the respondent."

2. Today, respondent Abdul Raheem has entered appearance through counsel. Both counsel have been heard. It is clear from the record that the learned Judge in Chambers of the High Court proceeded on erroneous premises that no issue had been framed by the trial Court in respect of the dowry articles. It is on this basis that the appellate judgment was set aside. Learned counsel has, however, drawn our attention to the fact, which is noted in para 5 of the appellate judgment, which is to the following effect:-- "On 3-2-2010, after framing of additional issue regarding dowry articles, the parties were asked to lead their respective evidence and they produced the same." Moreover, as noted in the order of this Court dated 11-11-2011 reproduced above, issue No.2 was also sufficient to put the respondent to notice as to the claim of dowry articles made by the petitioner in the plaint. The impugned order, to this extent, appears to be a result of error.

3. The other question as to automatic annual increase in the maintenance for the minor children has been dealt with by the High Court in para 7 of the impugned judgment. At present, there appears to be no factual basis brought on record to justify such annual increase. The learned counsel for the petitioner, however, states that he will be in a position to lead evidence in the form of financial statistics including the Sensitive Price Index ("SPI") to persuade the trial Court to grant annual increase in line with such statistical data.

4. In the foregoing circumstances, the appellate judgment dated 23-2-2010 and the impugned judgment dated 4-8-2011 are set aside. The matter is remanded to the trial Court which shall proceed to frame specific issues relating to the dowry articles as well as enhancement of maintenance awarded to the minor children and shall thereafter allow the parties to lead evidence before deciding the case afresh. During this period, maintenance at the rate of 2,000 per month shall continue to be deposited by the respondent No.1/Grandfather.

5. This petition is, therefore, converted into appeal and allowed in the above terms. M.H./K-1/SC Appeal allowed.