2006 PLP 853 (MLD)

SARDAR MUHAMMAD ASLAM, J.

The petitioner through this constitutional petition, calls in question the concurrent judgments and decrees passed by the learned Courts below, whereby learned Judge Family Court decreed the suit of the plaintiffs for recovery of. maintenance allowance to the extent of minor plaintiff No.2 at the rate of Rs.600 per month from institution of suit till the solemnization of her marriage or her custody is lawfully transferred while claim of plaintiff for return of dowry articles was partly decreed to the extent of Rs.1,00,

000. Appeal preferred by the petitioner met the same fate. Controversy confined herein is only in regard to return of articles of dowry.

2. Respondents in spite of service did not appear and was proceeded ex parte.

3. Learned counsel for the petitioner contends that the learned Additional District Judge has not obeyed the direction issued by this Court and once again failed to discuss evidence of the petitioner/defendant. Judgment is, therefore, liable to be set aside being unreasoned.

4. Heard.

5. On 23-11-2004, the case was remitted back to the learned Additional District Judge for decision afresh observing that judgment lacked discussion of evidence of the parties.

6. Learned counsel referred to paragraph 10 of the impugned judgment dated 24-12-2004. Once again the learned Appellate Court discarded the statement of D.Ws. in one line" the evidence of D.Ws. is not believable as the D.Ws. have denied the total claim of the plaintiff in evasive manner". This is the only discussion as far as D.Ws. are concerned. The approach of the learned appellate Court is perfunctory. He disobeyed the direction of this Court recorded in the order dated 23-11-2004. His judgment is in clear violation of the provision of Order XLI rule 31, C.P.C. Brushing aside evidence of the petitioner/defendant in one line is in clear violation of law. Evidence of the petitioner/defendant was neither discussed nor considered. The judgment of the learned appellate Court is thus a nullity in the eye of law. Reference may be had to M/s Saqib Brothers, Jhang, and another v. M/s. Ciba Giegy (Pakistan) Ltd. (1991 CLC 710). Non-compliance of the direction given in the remand order does call for some action against Mr. Shafqat Ali, learned Additional District Judge, Arif Wala District Pakpattan Sharif but refrain as Judicial Officer are entrusted with difficult task of administration of justice. However, it is observed that in the family matters, learned Appellate Court is the last Court in the realm of facts and controversy resolved by it is not amenable to further appeal, review, or revision. Responsibility is, thus, more than double on Appellate Court, to consider and discuss all material available on record, whatever be its worth. No piece of evidence is to be left out from consideration. The judgment, is, thus, not sustainable in law and is set aside.

7. For what has been discussed above, the constitutional petition is allowed. The impugned judgment to the extent of return of dowry Article is set aside. The appeal shall be deemed to be pending before Mr. Shafqat Ali, learned Additional District Judge, who shall issue notice to the parties and then decide the same after hearing them. H.B.T./M-1183/L??????????????????????????????????????????????????????????????????????????????? Petition allowed.