C.Ms. Nos. 4 and 5 of 2004.
' Allowed subject to all just exceptions.
' Main case.
2. With the consent of the parties this writ petition is being disposed of as a notice case.
3. Facts in brief are that the petitioner and respondent fell apart in consequence of which respondent-wife filed following suits:--
(i) Suit for maintenance.
(ii) Suit for dissolution of marriage.
(iii) Suit for dowry articles.
4. All the suits were consolidated and vide judgment dated 28-7-2003 the same were decreed.
Through this petition petitioner has challenged the finding given on Issue No.6 in suit for recovery of dowry articles only operative part of which is as under:-- "The said dowry articles are in possession of the defendant. She has claimed that the said articles may be handed over to her. Her statement is supported, corroborated and endorsed by her brother Muhammad Afzal P.W.2. As I have already pointed out in earlier para. Of this judgment that the defendant took up contradictory plea with regard to dowry articles. In his written statement respondents to suit for recovery of dowry he simply controverted the allegations by making an evasive reply in his statement filed in suit for dissolution of marriage, it was admitted that some dowry articles were given to the plaintiff at the time of her marriage. In his statement, the defendant says that the plaintiff No.1, belongs to a poor family. They gave nominal dowry i.e. The trunks and some crockery to the plaintiff at the time to law and as such were not exhibited yet the version of the plaintiff No.1 finds support from the said receipts. I take judicial notice of the said receipts. The evidence of the plaintiff No.1, with regard to dowry article,s is convincing and believeable. The said articles exclusively belong to plaintiff No.
1. The defendant has no legal and moral justification to retain the said articles. He is liable to deliver back the said articles to the plaintiff No.1 except the articles as pointed out above. If he fails to return the said articles to the plaintiff, he would bound to pay the price thereof as mentioned against each articles in the list Exh.P.1 mentioned in para No.8 of the plaint of suit for recovery of dowry articles."
5. Learned counsel for the petitioner submitted that in the plaint respondent-wife had not claimed compensation in lieu of her dowry articles and the learned trial Court could not have granted the relief which was never prayed. He read out the statement of respondent Munazza Sultana who appeared as P.W. 1 and submitted that in her examination-in-chief, she had stated that the dowry articles amounting to Rs.3,00,000, detail of which was given in Exh.P.1, were taken by petitioner himself to his house on a truck. However, in the latter part of the cross-examination she stated that two of her brothers had got loaded the dowry articles on a troller and some members of the petitioner's family had also come at that time to take those articles to the latter's house. This inconsistent stand, learned counsel contended, makes her statement unworthy of reliance. He added that this stand becomes all the more doubtful if the statement of P.W.2, Muhammad Afzal, who is real brother of the respondent/ plaintiff is taken into account. The said brother in cross- examination stated that the dowry articles were taken on a Tonga and Rehra ten days prior to the marriage. Learned counsel further submitted the plea that the dowry articles were taken on truck to the house of petitioner/defendant was never suggested to him when he appeared as D.W.1.
' Learned counsel for the respondent/defendant defended the impugned judgment by submitting that the learned Courts below have correctly decided the issue against the petitioner/ defendant; that this Court sitting in writ jurisdiction may not like to upset the findings of fact; that there is no illegality or material irregularity to interfere with the impugned order; that the petitioner/ defendant tried to have the judgment and decrees set aside through a collusive application given under section 12(2), C.P.C. Filed before the learned Executing Court which stands dismissed vide order dated 10-5-2004, which is annexed with C.M. No.4 of 2004.
6. Heard.
7. The respondent/plaintiff while appearing as P.W.1 had specifically asserted about the dowry articles but had also placed on record a list of the same as Exh.P.1. An approximate price was also given by her in her examination-in-chief i.e. Rs.3,00,000. Her statement was corroborated by her brother P.W.2, Muhammad Afzal. Both submitted that the dowry articles were taken by the petitioners/defendant to her house about ten days prior to the marriage. Both the Courts after considering the evidence on record have concurrently held that petitioner/ defendant retained those articles; that those articles were never taken by the respondent/ plaintiff to her house after separation and the learned Appellate Court has given a finding with regard to their approximate value i.e. Rs.2,60,000. This Court sitting in Constitutional jurisdiction would not like to interfere with this finding of fact unless any material piece of evidence was not considered by the Courts below which is not the case. The finding given with regard to Issue No.6 is strengthened by yet another circumstance i.e. The application filed by petitioner/defendant's real sister Mst. Farhat Khurshid which it is not denied was living with the petitioner/defendant at the time of the marriage and even now. In the said application she claimed that the dowry articles which are subject-matter of this petition belonged to her. The learned Executing Court dismissed the said application vide order dated 10-5-2004. This order is annexed with C.M. No.4 of 2004, the operative part of the said order is rather instructive and is reproduced as under:-- "It is significant to point out that the consolidated judgment and decree was passed by this Court on 28-7-2003 while the petitioner who was residing in a common house along with her brother Azhar Shahzad and parents hit upon idea of challenging the said decree on 11-2-2004 after lapse of a period of more than seven months. The petitioner has manufactured a novel device to dispute the decree for return of dowry articles. There is another aspect of the present application. A cursory glance over the contents of the present application shows that the petitioner has not specifically mentioned the date of impugned judgment and decree in this application. It appears that she was aggrieved of the list of dowry articles prepared by Munazza Sultana and not by the impugned decree. I am at a loss to understand why the petitioner kept mum when the suits were contested between Munazza Sultana and her brother Azhar Shahzad. The present application is baseless and afterthought."
8. The existence of dowry articles and their retention by petitioner/defendant stand established not only by the evidence led by the respondent/plaintiff before the learned trial Court but also by the afore-referred order passed by the learned Executing Court on the application filed by petitioner/defendant's real sister under section 12(2), C.P.C. In the afore-referred circumstances I do not find any merit in this petition which is dismissed.