2012 PLP 399 (SCMR)

KHILJI ARIF HUSSAIN, J.

This petition, for leave to appeal, is directed against the judgment dated 4-10-2011 passed by the Lahore High Court, Lahore whereby Writ Petition No.14695 of 2011 filed by the respondents was allowed, the order dated 17-6-2011 passed by the Additional District Judge, Sargodha was set aside by upholding the order of the executing Court dated 11-5-2011.

2. Brief facts to decide the petition are that the petitioner filed four suits for recovery of dowry articles, maintenance allowance, recovery of medical expenses and recovery of Rs.34,00,000 lent to respondent No.1. The family Court decreed the suits vide its judgment and decree dated 19-5-2008 for recovery of dowry articles as per list Exh.P.A, otherwise petitioner was entitled to recover Rs.82,38,500, maintenance allowance to the tune of Rs.20,000 per month since March 2006 till subsistence of marriage and also decreed the claim of medical expenses to the tune of Rs.2,50,000 while dismissing the claim for recovery of Rs.34,00,

000. Both the parties, aggrieved by the judgment and decree passed by the Family Court, filed appeals before the Additional District Judge, who vide his judgment and decree dated 30-7-2011, modified the decree of trial Court in respect of the dowry articles mentioned in the list Exh.P.A, accepted the appeal filed by the petitioner or price thereof to the tune of Rs.50,40,

000. The petitioner and respondents, dissatisfied with the judgment of the appellate Court, filed Writ Petitions Nos.11166 and 12330 of 2008, which were dismissed on 13-1-2010. Respondent No.1 filed C.A. No. 512 of 2010 before this Court, which too was dismissed on 4-5-2010. During the pendency of appeal before this Court, a sum of Rs.15,00.000 was deposited by respondent No.1 in Court. The petitioner filed an execution petition and during the pendency of the execution petition for return of dowry articles or in alternate to pay a sum of Rs.50,40,

000. Respondent No.1 filed an application on 27-4-2011 praying that he may be allowed to deposit the decretal amount by installments. The petitioner resisted the said application and asserted that she was entitled for the return of gold ornaments/dowry articles or cost thereof at the prevailing market rate. The executing Court vide its order dated 11-5-2011 accepted the application for depositing the remaining decretal amount by installments and dismissed the application for return of ornaments or the price thereof at the prevalent market value.

3. The petitioner as well as the respondents filed appeals against the said order. Learned Additional District Judge, disallowed the appeal filed by the respondent No.1 and it was held that the decretal amount could not be paid in installments. It was further held that the articles mentioned in the list were to be returned to the decree holder/petitioner by the respondents or to pay the price of the same at the prevailing market price. The respondents filed writ petition before the Lahore High Court, Lahore, which was allowed by the learned single Judge in Chambers vide judgment dated 4-10-2011, set aside the order passed in appeal by the Additional District Judge, and upheld the order dated 11-5-2011 passed by the executing Court. Hence, this petition for leave to appeal

4. Sh. Zamir Hussain, Advocate Supreme Court appearing on behalf of the petitioner, after taking us through the various documents, vehemently argued that the petitioner is entitled for the return of gold ornaments/dowry articles, which according to him, are in possession of respondent No.1; that the learned High Court has committed error of law while directing the respondent to pay the price of the said articles in installments; that the petitioner is entitled for prevailing price of dowry articles, if the same are not in possession of respondents and that the impugned judgment of the High Court is not in consonance with the law. In support of his contentions, he heavily relied upon Order XXI, Rule 10, C.P.C. He also relied upon the cases of Mst. Mehbooba v. Abdul Jalil, (1996 SCMR 1063), Karthiyani Amma v. Padmanabha Pillai, (AIR 1951 Travancore-Cochin 176) and B. Nagappa v. Manianath Das, (AIR 1959 (sic.) 164).

5. On the other hand, learned counsel representing the respondents supported the impugned judgment and has stated that entire decretal amount has been paid by respondent No.1 and there is nothing outstanding against him.

6. We have taken into consideration the arguments advanced by learned counsel for the parties and have also perused the available record carefully. From perusal of the record it appears that the learned Additional District Judge, Sargodha vide his judgment and decree dated 30-7-2008 directed for return of the dowry articles or the value thereof. The learned Judge while dealing with issue No.1 relating to the entitlement of the petitioner to the recovery of the dowry articles as prayed for, after taking into consideration all aspects of the matter and evidence on record ordered that respondents are liable to return the dowry articles or the price thereof to the tune of Rs.50,40,

000. This finding recorded by the learned Additional District Judge was upheld by the High Court as well as by this Court and as such the same has attained finality.

7. The learned counsel for the petitioner now wants that the matter may be again remanded to the executing Court for determination whether the dowry articles are in possession of respondent No.1 and if not, then to determine their prevalent market value.

8. We have noted that Nikah of the petitioner was solemnized with respondent No.1 on 9-2-2005 and the marriage was dissolved on 8-1-2008. The petitioner filed suits for recovery of dowry articles and maintenance allowance etc. in the month of January, 2008. The judgment and decree was modified by the Additional District Judge, on 19-5-2008, which was maintained up to the level of this Court and the petitioner now again wants that the matter may be remanded to the executing Court for determining whether the articles are in the possession of respondent No.1 and if not, for the prevailing market value of the same.

9. The prosecution Agencies, Bar Association/Advocates are integral part and important components of dispensation of justice system. Without their assistance and cooperation it is very difficult to deliver the justice within the reasonable period of time. It has been noted that the State is one of the party in major part of litigation in Court, litigating against their subject without having any proper legal advice, filed appeals one after the other in routine from the money of Tax payer against them. The counsel being officers of the Court, are under obligation to carefully examine briefs and assist the Court with their best efforts and abilities, to avoid multiplicity of the proceedings. Their primary responsibility is to act fairly and assist the Court in reaching just and equitable conclusion in consonance with law.

10. In the case of Mehbooba (supra), it was held by this Court that the parties are entitled for the value of the gold ornaments at the market rate prevailing on the date of the institution of the suit. The value of the dowry articles was determined by the Additional District Judge as back as in the year 2008, which was upheld up to the level of this Court, to which no exception can be taken. For the foregoing reasons, we do not find any merit in the listed petition which is dismissed and leave to appeal is refused. S.A.K./G-3/SC Leave refused.