2010 PLP 904 (MLD)

ALI AKBAR QURESHI, J.

This constitution petition assails the judgment and decree, dated 2-12-2008, passed by the learned appellate Court, whereby the appeal of the respondent was accepted, resultantly the suit instituted by the petitioner to recover the dowry articles plus gold ornaments was dismissed.

2. Shortly the facts are, that the petitioner instituted a suit to recover the gold ornaments valuing Rs.222,440 and dowry articles of Rs.211,765 on the ground that the aforesaid articles were given to her at the time of marriage with the respondent, those are in possession of the respondent, who has refused to return the same.

3. The suit was opposed by the respondent while filing the written statement, contending therein that the dowry articles given to the petitioner were returned to her at the time of giving divorce.

4. The learned Judge Family Court out of the pleadings of the parties framed as many as six issues, recorded the evidence led by the parties and finally decreed the suit.

5. Respondent being dissatisfied, preferred an appeal, wherein the learned appellate Court accepted the appeal and dismissed the suit. Hence this constitutional petition.

6. Learned counsel for the petitioner contended that the petitioner successfully proved her claim as contended in the plaint by adducing reliable evidence but the same has totally been misread and misinterpreted by the learned appellate Court while accepting the appeal. Next contended that the father of the petitioner, who has contracted second marriage after the death of the mother of the petitioner, is living separately, whereas the petitioner is living in the house of her maternal uncle, therefore, the evidence recorded by the father of the petitioner, in these circumstances cannot be considered and used against the petitioner. Lastly contended that the respondent could not bring any impartial evidence to rebut or shake affirmative evidence of the petitioner.

7. Conversely learned counsel for the respondent supported the findings recorded by the learned appellate Court.

8. Heard. Record perused.

9. The record, which is available on the file reveals that the petitioner appeared in the witness box, through her attorney, who tried to prove the averments made in the plaint. The special attorney of the petitioner, who appeared as P.W.6., stated that the dowry articles and gold ornaments valuing Rs.434,225 mentioned in the list were given to the plaintiff at the time of her marriage, those were brought in the house of respondent but the respondent despite demands has refused to return the same. The respondent while conducting cross-examination upon P.W.6., (special attorney of the petitioner), although put certain questions regarding the dowry articles but as regards the gold ornaments no specific question was put. However, in response of a question put by the respondent the said attorney P.W.6., stated as under:-

10. The second point, which is legal one and is important to decide the fate of the case as the respondent also appeared in witness box through attorney. Section 18 of the Family Courts Act, 1964, which is applicable on the preposition, reads as under:-- "Section

18. Appearance by agents.

If a person required under this Act to appear before a Family Court, otherwise than as a witness, is a pardahnashim lady, the Family Court may permit her to be represented by a duly authorized agent."

12. The legislator by way of aforesaid provisions of law has only facilitated to the wife to appear through attorney, whereas the husband is not permitted to do so. This important legal aspect of the case has also been ignored and overlooked by both the learned Courts below.

13. Since a valuable rights of the parties is involved, therefore, without commenting upon the facts of the case, it deems appropriate to remit the matter to the learned trial Court to re-decide the same afresh in view of the law applicable to the case and the observations made above.

14. Resultantly, the judgment and decreed 2-12-2009 and 23-6-2008, passed by the learned Courts below is set aside and the matter is remitted to the learned Judge Family Court to re-decide the same afresh.

15. Since it is a family matter, therefore, both the parties shall appear before the learned District Judge concerned on 19-6-2009, who shall entrust to the same to any competent Court of law to decide the matter. No notice of Parvi shall be issued for the appearance of the parties. M.U.Y./S-183/L????????????????????????????????????????????????????????????????????????????????? Case remanded.