2011 SCMR 1073 (PLP)

MIAN SAQIB NISAR, J.

The appellant filed a suit against her husband Muhammad Naeem and Muhammad Ashraf her father-in-law claiming that the latter has given to her two properties i.e. land measuring one kanal and 4-1/2 marlas shop, in lieu of her dower at the time of Nikah; her husband in a way conceded her claim, but it was contested by the father-in-law, on the plea that the Nikahnama has been interpolated and on account of fraud and forgery the shop has been added thereto. Be that as it may, after the contest and trial the suit was allowed by the learned Family Judge vide judgment dated 17-7-2006. The appeal of the respondent failed on 1-2-2007. It may be pertinent to mention here that Muhammad Ashraf has died and the matter thereafter is being contested by his other legal heirs (the respondents except Naeem). Anyhow, the aforesaid decisions were challenged by them and the learned High Court has allowed the Constitution Petition by setting aside the judgments and decrees in respect of the shop holding that the same was not part of the dower or in lieu thereof.

2. Learned counsel for the appellant has argued that the judgments and decrees of Courts below were interfered by the High Court but without considering the evidence of the appellant through which it was duly proved that the shop in question was given to the appellant as a part and in lieu of dower. Thus it is a case of sheer non-reading of the evidence, and the impugned decision cannot sustain under the law. Learned counsel for the respondents, however, on the contrary has submitted that the relevant evidence has been taken into account by the learned High Court and on the basis of such unequivocal evidence it has come to the conclusion that the decisions of the two lower forums were not founded upon proper reading of the evidence on the record.

3. Heard. From the impugned judgment of the learned High Court, it is eminently clear that the evidence of the respondent side was only considered and was made the basis of setting aside the concurrent finding of facts recorded by the two courts of fact; whereas the evidence of the appellant was not adverted to at all, touched upon or taken into account, this is a serious illegality committed by the High Court because it is settled rule by now that interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to the cases of mis-reading and non-reading of material evidence which has bearing on the fate of the case.

4. In order to determine the above vice, the High Court is required in law to consider the evidence led by either side; but in the instant case the court has not bothered to take into account such evidence which had prevailed with the two courts of fact while giving decision in favour of the appellant, this by itself is a case where the High Court has committed the grave error of non-reading the evidence, therefore, the impugned judgment is untenable.

5. In the light of above, the impugned judgment is set aside, the matter is remanded to the High Court with the direction that the case be decided afresh by keeping in view material evidence led by both the sides and also adhering to the rules about the interference in the concurrent findings of fact recorded by the two courts as it is a family matter, thus it is expected that the same shall be disposed of by the Court within a period of three months. The appeal stands allowed in the above terms. M.A.K./F-7/SC?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.