1999 PLP 2303 (YLR)

5. The learned counsel for the appellant assailed the impugned judgment and decree vehemently and argued that the same was the result of misreading and non‑reading of evidence. He further submitted that the appeal was well within time as the time consumed in obtaining the copies of judgment and decree was to be condoned under law. According to him, his appeal was late by 15 days and the time spent in preparation and delivery of the copies of the judgment and decree was 18 days. Therefore, according to the learned counsel, the appeal could not be considered as time‑barred. The learned counsel relied on 1981 CLC (797) Karachi and 1991 PLC 396 and stressed for reversal of impugned judgment and decree.

6. The examination of the certified copies of the judgment and decree appended with the memo. of appeal shows that appellant applied to obtain the copies on 19‑6‑1997 i.e., within the prescribed limitation. The copies were prepared on 20‑6‑1997 but the same were delivered to appellant on 7‑7‑1997. No date was fixed for delivery of copies nor any notice was given to the appellant for collection of the copies. In the given situation, the appellant cannot be held at fault and it is legal and just to condone the time spent in obtaining the copies. This view finds support from the case‑law referred by the learned counsel. In 1981 CLC 797 (Karachi). It was held as under:‑‑‑ (a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ "Section 12‑Appeal‑period of limitation‑computation appellant applying for certified copy of order, dated 2‑4‑1973 cost deposited on 12‑5‑1973‑Nothing on record to show appellant counsel having been given required intimation regarding certified copy being ready‑appeal filed on 26‑5‑1973 held, time of appeal extended for period of such further delay and appeal within time?(Appeal Civil Limitation). In 1991 PLC

396. The honourable judge made the following observation;‑‑‑ "(iii) Limitation Act, 1908 (IX of 1908)‑‑ ‑‑‑Section 5 read with Industrial Relations Ordinance, 1969, section 25‑A‑Employee‑Termination of service of‑‑‑Challenge to‑‑Whether appeal was time‑barred‑‑‑Question of‑‑Usually Labour Courts do not fix any date for collection of copy and appellant rightly stated that no date for collection of copy before him‑?So, even if it be said that appellant did not go for collection of copy before 20‑6‑1990, he was not at fault since he was not called upon to appear for this purpose‑‑Held: Excluding days spent from date of application for copy to date on which it was actually delivered, appeal is not time‑barred. "

7. Therefore, by moving in the right direction, the time consumed in preparation and at delivery of the copies is condoned and by excluding 18 days from the total period of 45 days, the appeal becomes in time.

8. The next point which needs resolution is whether or not the appellant (plaintiff) had a cause of action. The Trial Court by relying on her preliminary statement recorded on 5‑12‑1996, opined that she had no cause of action. The reason given by the Trial Court was that she did not claim her dower and only sought dissolution of marriage, therefore, she did not have any cause of action to move the Court. The relevant statement was examined and it was found nothing but the result of misreading the evidence. It is correct that she spoke about dissolution but it was no where that she refused to claim her dower. She categorically stated that the dower was fixed as Rs.10,000 and it was payable to her. This statement was to be read in context and reference to her suit. The Trial Court fell in context and reference to her suit. The Trial Court fall in error and as such travelled in a wrong direction. Therefore, it is held that the plaintiff/ appellant had a cause of action.

9. While, coming to the facts of the case, the respective stands of the parties was to be kept in mind. The claim of the plaintiff/ appellant was that the whole amount of dower was payable to her on demand whereas the respondents' stand was that they had paid the same and nothing was outstanding against them out of dower fixed at the time of marriage. It means that the respondents accepted the amount as payable on demand with the difference that they had paid the same on her demand. Therefore, it could safely be said that burden to prove the payment of dower was on the defendants/respondent and they failed to discharge it through evidence.

10. Another ambiguity which may perhaps arise from the entries of Nikanama Exh.P.A. and i.e., whether the whole amount of dower was prompt or a portion of it was deferred. This ambiguity stands clarified when it is seen in the light of the respective contentions of the parties. The defendant/ respondents claim the dower to have been paid meaning thereby that it was payable to the appellant during the life time of the respondent No.1 or during existence of marriage. The appellant claims it as payable on demand and the other party claims to have been paid. Therefore, it is abundantly clear that there is no controversy regarding the nature of the dower fixed at the time of wedlock. Thus, the whole dower amount of Rs.10,000 is payable to appellant/plaintiff.

11. The observation of the trial Court that the amount of Rs.5,400 was paid to the appellant at the time of wed‑lock is also wrong for the reason that the evidence on both the sides negates the fact of payment. The evidence on appellant's side totally deny the fact of payment whereas the respondents' claim was that they have paid the amount to Abdur Rehman. This shows that the dower, which is the personal right of the appellant, has not been paid to her. Therefore, the Nikanama Exh.P.A. is to be looked in the light of the evidence and when the same is done, the matter becomes quite clear.

12. The result is that the suit by the plaintiff/appellant for recovery of dower-?amount Rs.10,000 succeeds and the appeal stands accepted. The judgment and decree, dated 31‑5‑1997 is hereby set aside. H.B.T./76/Sh.C(AJK) Appeal accepted.