2011 MLD 373 (PLP)

SYED AKHLAQ AHMAD, J.

Through this writ Rao Abid Ali/petitioner/plaintiff has challenged the validity of order dated 6-9-2010 passed by the learned Additional District Judge Lahore whereby he dismissed the appeal of the petitioner/plaintiff and upheld the judgment and decree dated 17-12-2008 passed by the learned Judge Family Court Lahore by virtue of which she decreed the suit for recovery of dowry of Hina Jabbar/respondent No.1/plaintiff in her favour and against the petitioner/defendant.

2. Contents of the writ petition show that on 11-7-2007, Hina Jabbar/respondent No. 1/plaintiff filed suit for dissolution of marriage and recovery of dowry articles against Rao Abid Ali/petitioner/ defendant with the averments that marriage between the parties took place on 27-11-2005 in consideration of Rs.4000 as dower. Parents of respondent No.1/plaintiff gave her huge dowry valuing Rs.3,96,250 along with gold ornaments at the time of Nikah as per list attached. The said dowry articles are in possession of the petitioner/ defendant. It is alleged that on 15-12-2005 she was turned out from his house by the petitioner/defendant. Due to cruel attitude and non-payment of maintenance, she developed severe hatred against him. Hence suit for dissolution of marriage and recovery of dowry articles.

3. The petitioner/defendant contested this suit through his written statement wherein he simply denied the averments of the plaint.

4. Out of the pleadings of the parties, the following issues were framed by the learned Judge Family Court. ISSUES:-- (i) Whether the plaintiff is entitled to obtain decree for recovery of dowry articles as claimed for? OPP (ii) Whether the suit of the plaintiff is liable to be dismissed? OPD (iii) Relief.

5. Both the parties adduced their respective evidence. After hearing the arguments, the learned Judge Family Court vide judgment and decree dated 17-12-2008 decreed the suit for recovery of dowry articles of respondent No.1/plaintiff as per list Exh.P-1 or Rs.2,00,000 as its price in lieu thereof excluding articles which were given as gift. Against this decision, both the parties filed appeals which were also dismissed by the learned Additional District Judge Lahore vide his consolidated judgment and decree dated 6-9-2010. Aggrieved with these decisions, the petitioner/defendant has challenged the same before this court through present writ.

6. Learned counsel for the petitioner/defendant contends that the petitioner/defendant has no dowry articles in his possession. On 4-6-2006, he has returned the dowry articles to respondent No.1/plaintiff in the presence of the witnesses. The petitioner/defendant is a disabled person whose lower part of the body is paralysed and he is unable to move without the wheel chair. He is not in a position to earn a single penny. In this background how can he pay huge amount of Rs.2,00,000 decreed by both the courts below as price of dowry articles of respondent No.1/plaintiff. Both the courts below have mis-read and non-read the evidence on the record and thus reached at a wrong conclusion which has resulted in miscarriage of justice.

7. After hearing the learned counsel for the petitioner/defendant and going through the documents available on the file, I find that both the courts below have not flouted the provisions of the relevant law and have considered and decided the question of dowry articles in accordance with the guiding principles laid down by the superior courts. The petitioner/defendant in his written statement, evasively denied the fact regarding the dowry articles given to respondent No. 1/plaintiff as per list Exh.P-1. No plea of return of dowry articles was taken by the petitioner/defendant in his written statement. However in his evidence he has taken this stand that the dowry articles were returned by him to the respondent No. 1/plaintiff in the presence of the witnesses. His stand of return of dowry is outside the scope of his pleadings-so it cannot be legally considered. He has not produced any receipt of return of dowry articles to respondent No. 1/plaintiff. Rao Abid Ali petitioner/defendant as DW-1 admitted during cross-examination that dowry articles were given to respondent No.1/plaintiff at the time of marriage. Learned counsel for the petitioner/defendant failed to point out any mis-reading or non-reading of material evidence which might have affected the concurrent judgments and decrees of both the courts below.

8. For all the above reasons, I am of the view that no case for interference in the impugned judgments and decrees of both the courts below in exercise of constitutional powers of this Court is made out. The writ petition is, therefore, dismissed in limine. M.U.Y/A-256/L Petition dismissed.