1988 PLP 475 (CLC)

‑‑‑Arts. 117 & 118‑‑Burden of proof, discharge of‑‑Burden to prove alleged fact that respondent being wife of petitioner while leaving house of petitioner had taken away with her illegally, cash, golden ornaments and clothes, admittedly was on petitioner‑‑Oral evidence adduced on part of petitioner was only conjectural in nature which proved to be unreliable‑‑Court was justified in holding that petitioner failed to discharge burden which was on him particularly when suit filed by him against respondent was counter‑blast as same was instituted by him only when respondent wife had instituted suit for dissolution of marriage against him S. Inayat Ali for Applicant. Abdul Aziz for Respondent. Date of hearing: 15th December, 1986. This Revision Application under section 115, C.P.C is directed against the judgment and decree, dated 5th of May, 1980, passed by the IIIrd Additional District. Judge Karachi, in Civil Appeal No. 410/1978. The following facts are relevant for the disposal of the Revision Application:‑ The applicant instituted a suit for recovery of a sum Rs.8,800 against the respondent on the allegation that respondent No.l, who was the wife of his son, while leaving the house in or about June 1977, alongwith her father and maternal grandmother, took away with her illegally a sum of Rs.2,000 in cash, gold ornaments valuing Rs.5,000 and two pairs of clothes worth Rs.1,

800. The suit was resisted by the respondent. The learned trial Court, after recording evidence of the parties, decreed the suit of the applicant in the sum of Rs.8,800 but, on appeal, the learned first appellate Court set aside the judgment and decree and dismissed the suit of the appellant. Mr. S. Inayat Ali learned counsel for the applicant contends that the reversal of the decree by the first appellate Court is based on mis-appreciation of evidence and is not sustainable in law, I have gone through the evidence with the assistance of the learned counsel for the parties, and I am satisfied that the decree has been rightly reversed by the learned first appellate Court. The burden of proving that the respondent No.l has taken away cash, gold ornaments and clothes, while leaving the house, as aforesaid, in the year 1977 was entirely on the applicant. The applicant, in support of his case, examined himself and one of his sons Muhammad Ibrahim. It is nowhere alleged in the evidence of the applicant, or his son that Mst. Zainab (respondent No.l), while leaving the applicant, carried away with her the articles, namely, ornaments, cash and clothes. The total evidence available on record in the case shows that at the time Mst. Zainab left the house, she carried with her a trunk. Neither the applicant nor his son stated in his evidence before the Court that the articles, allegedly taken away by Mst. Zainab, were in that trunk, It was only a conjectural guess that the trunk, which was carried away by Mst. Zainab, contained these articles. It may further be mentioned that applicant Haji Hassan was not present at the house, when Mst. Zainab left, and he arrived at the scene about three hours later, and then he found the articles, allegedly taken away by Mst. Zainab, missing from his cupboard. The son of the applicant, who was examined in the case, in his evidence states that he has seen Mst. Zainab opening the cupboard and meddling with the above articles, but when the witness asked Mst. Zainab as to what she was doing, she replied that she was arranging these articles. The witness, Muhammad Ibrahim, admitted in his cross‑examination that he did not inform about the meddling of the articles by Mst. Zainab to the mother and sister, who were present in the house, It is also significant that, although the applicant had come to know about the alleged disappearance of the articles from his cupboard, he neither lodged any report against the defendant No.l, nor he filed a suit immediately for their recovery. On the contrary, it is an admitted position that the suit for recovery of the amount of these articles was instituted by the applicant only after respondent No.l had instituted a suit for dissolution of her marriage and summonses were served on the parties. In these circumstances, the learned first appellate Court was fully justified in holding that the applicant failed to discharge the burden, which was on him. Mr. S. Inayat Ali, learned counsel for the applicant, also contended that the preponderance of the evidence goes to show that Mst. Zainab had taken away these articles from the cupboard of the applicant. The contention has no force. As earlier pointed out, there was no assertion either on the part of the applicant or his witness that Mst. Zainab, while going with her father in June 1977, also carried away with her the above articles. It was not even asserted by the applicant or his witnesses that the trunk allegedly carried by Mst. Zainab contained these articles, in the absence of such assertion on the part of the applicant, I fail to see how the preponderance of the evidence could be held to be in favour of the appellant in the case. No case for interference is made out. The revision application is accordingly dismissed, but in the circumstances of the case, I will make no order as to costs. H . B . T . / H‑69/ K Revision dismissed.