2003 PLP 1568 (CLC)

This be considered as admitted case.

2. Brief facts in the instant writ petition are that respondent No.l filed a suit for recovery of dowry articles of the amount of Rs.23,

625. She gave an application for seeking permission to amend her plaint. Reply of application was filed by the petitioner on 10-2-2001 and the learned Judge Family Court allowed the respondent No.l to amend her plaint on 16-4-2001 and she filed amended plaint on 23-4-2001, wherein she claimed Rs.1,12,125 as the amount of dowry articles instead of Rs.23,

625. Following issues were formulated:-- (i) Whether the plaintiff is entitled . to get the decree for recovery of her dowry articles or in alternate its price of Rs.1,12,125? OPP. (ii) Relief Evidence of both the parties was produced and vide judgment and decree dated 23-10-2001 the learned Judge Family Court dismissed the suit, filed by respondent No.l. She being aggrieved filed an appeal and the learned Appellate Court vide judgment and decree dated 20-5-2002 accepted the appeal and decreed the suit in the sum of Rs.23,

575. This judgment is impugned in the instant writ petition.

3. Arguments advanced by learned counsel for the petitioner are that earlier the respondent No.l filed a suit for dissolution of marriage, where issues regarding maintenance allowance and misappropriation or dowry articles were framed and were decided against the respondent No.l and marriage was dissolved in consideration of maintenance allowance and also articles of dowry vide judgment and decree dated 14-6-1988, therefore, the instant suit was incompetent under the principle of res judicata. He further argued that in the earlier suit for dissolution of marriage she alleged for misappropriation of her dowry, articles and issues were decided against her. She failed to prove her case as she herself contradicted her own P.Ws., therefore, her claim could not be accepted and suit for recovery of dowry articles was rightly dismissed by the learned Judge Family Court.

4. Learned counsel for the respondent No.l argued that judgment passed by the learned Appellate Court is well-reasoned. In the earlier suit although the parties were same but it was not a suit for recovery of dowry articles. It was a suit for dissolution of marriage and the allegation of misappropriation does not mean that the dowry articles were not given to the respondent No.l. Moreover, she has proved the list as well as evidence in respect of her claim.

5. I have heard the learned counsel for the parties and perused the record. Respondent No. l appeared as P.W.1 and in her statement she has stated that she was given jewelry and dowry articles and she got nothing from the side of defendant. The judgment cited by learned Judge Family Court in suit for dissolution of marriage deciding issues Nos.4 and 5 against respondent No. l cannot be treated as res judicata under the provisions of C.P.C. as that was a suit for dissolution of marriage and the marriage dissolved on the basis of "Khula"' the consideration, can never be the recovery of articles of dowry or the maintenance allowance which are independent rights of the marital spouses, Zar-e-Khula' can only. be those benefits which respondent No.l received and while claiming Khula' is bound to return. As per Injunctions of Holy Qur'ani the wife while claiming "Khula' " will return all such benefits which she has received from her husband. Maintenance allowance is an independent right which a party to wedlock attains by virtue of marriage and the suit rests on entirely different legal grounds. Similar is the case of articles of dowry. The judgment of learned trial Court on the point that she has foregone her right of articles of dowry while asking for Khula' is legally wrong and suffers from legal infirmity.

6. The learned Appellate Court observed that the plaintiff filed first suit on 27-6-1988. She did not demand other dowry articles at the time of filing the suit, the rest of dowry articles were demanded on 23-4-2001. The subsequent claim was hit by the principle of constructive res judicata. As far as the question of delivery of ornaments is concerned the appellant stated that her ornaments were with the petitioner and she was entitled to receive the same, therefore, the learned Appellate Court held that the appellant/plaintiff was entitled to recover the ornaments detailed in the previous plaint worth Rs.23,

575. The learned Appellate Court dismissed the suit of the plaintiff to the extent of rest of the claim and decreed the original claim in original plaint that is Rs.23,575.

7. The suit for dissolution of marriage and suit for recovery or dowry articles are entirely two different cases and are being dealt with on different grounds as provided by law, therefore, suit for dissolution of marriage filed by plaintiff cannot be termed as res judicata of the suit for recovery of articles of dowry. Moreover, maintenance allowance and dowry articles cannot be the basis and consideration of right of Khula' in a suit for dissolution of marriage. The respondent No.l. has not challenged the judgment of learned Appellate Court dismissing her remaining claim and it is evident and clear that judgment of learned trial Court while non-suiting the plaintiff on the basis of finding on issue or misappropriation of dowry articles in a suit for dissolution of marriage is the outcome of error, of law and is rightly set aside in appeal by the learned Appellate Court. As the finding as to misappropriation of dowry articles does not mean that the dowry articles were not given to the plaintiff/respondent No. l, therefore, finding no substance in the instant writ petition the same is dismissed. M.B.A./I-150/L Petition dismissed