' HAFIZ ABDUL REHMAN ANSARI, J.---Through this constitution petition, petitioner seeks setting aside of order dated 8-1-2010 passed by learned Additional District Judge Shujabad findings on issue No,4 (para No,8 of the appellate Court's judgment) to the extent of dowry articles.
2. Brief facts of the case are that respondent No,2/plaintiff filed a suit for the dissolution of marriage, suit for maintenance allowance, suit for dower and suit for recovery of dowry articles or in alternate amount of Rs,4,43,597. The marriage of respondent No,2, plaintiff was solemnized with defendant/respondent on 22-5-2002. Parties settled as husband and wife and Allah Almighty blessed them with one son Aatir Nadeem, who is in the custody of respondent No,2, plaintiff.
According to respondent No,2, plaintiff, the petitioner/defendant ousted her along with minor in three wearing clothes after beating in September, 2004 and snatched the dowry articles and subsequently, petitioner/defendant also sent two notices of Talaq. Respondent No,2, plaintiff has maintained that due to hatred she cannot live with, the petitioner/defendant and has claimed maintenance allowance for herself at the rate of Rs, 3,000 per month and for minor plaintiff No, 2 Rs,2,000 per month and has also claimed past maintenance for 11 months at the same rate.
Respondent No,2, plaintiff also maintained that her dower Rs,10,000 is still unpaid and she is entitled to get the same. Regarding the suit for dowry articles she submitted that she was given the dowry articles comprising of gold ornaments, clothes, furniture etc. Which have been mentioned in the list and prayed that the same may be ordered to be returned to her.
3. The petitioner/defendant contested the suit by pleading that respondent No,2, plaintiff herself along with her bothers in September, 2004 left his house and also took with her gold ornaments weighing 20-tolas, 30-garments and cash amount of Rs,1,00,000 and despite his effort she did not rehabilitate. Petitioner/defendant also maintained that he issued notice of divorce to her and ultimately on 20-6-2005 finally divorced her. Regarding dower he pleaded that the' same has already been paid and about maintenance allowance his version is that since claim of the respondent No,2 plaintiff is false and she has admitted the divorce, therefore she is not entitled to maintenance allowance. About owry articles in para No,7 of the written statement lid pleaded that the list of dowry articles and all the receipts produced are forged, fictitious and afterthought. The petitioner/defendant further stated that respondent No,2, plaintiff was given only four chairs, one table, two beds, one sofa set, one pedestal fan, an iron, a sewing machine, a small tape-recorder, Jaiy Namaz, a set of plastic pots, a water set of glass, a tea set, spoon set and six garments and the same are in his custody and he is ready to return the same. After failure of reconciliation proceedings vide order dated 28-10-2006 learned trial court held that suit for dissolution of marriage has become redundant as the defendant has already divorced the respondent No,2, plaintiff, fixed the interim maintenance allowance of the minor child at the rate of Rs,700 per month.
The learned Judge Family Court framed the following issues:-- (i)Whether the plaintiffs have no cause of action and locus standi to file the instant family suit against the answering defendant? OPD (ii)Whether the plaintiffs are stopped by their words and conduct to bring the instant family suit against the answering defendant? OPD
(iii) Whether the plaintiffs are entitled to recover maintenance from the answering defendant if so, at what rate and for which period? OPP
(iv) Whether the plaintiff No, 1 is entitled to recover dower articles as per list appended with the plaint, along with dower as prayed for? OPP
(v) Relief.
4. Respondent No,2, plaintiff appeared as P. W.1 and produced Muhammad Arshad as P.W.2.
Respondent No,2, Plaintiff also produced list of dowry articles Exh.P-1 and receipts regarding purchase of different dowry articles from Exh.P.4 to Exh.P.20. Notice of divorce sent by defendant Exh.P.2 and Exh.P.3 birth certificate of minor as Exh.P.21 and Nikah Nama as Exh.P-22. Exh.P-1, Exh.P-4 to Exh.P-21 have been taken into evidence subject to legal exceptions. Petitioner/defendant appeared as DW-1 and he produced one Irfan Shah as DW-2. Petitioner/defendant also produced Nikah Nama Exh.P.1, documents pertaining to motorcycle Exh.D-2 to Exh.D-4 and receipts regarding money orders Exh.D-5 and Exh.D-6, Exh.D-2 to D-6 were also taken subject to legal exceptions.
Learned Judge Family Court vide judgment and decree dated 11-6-2009 decreed the maintenance allowance in partially and held plaintiff/respondent No,2 to entitled maintenance allowance from September, 2004 till 20-6-2005 plus three months more as "IDDAT" period at the rate of Rs,1000 per month. Plaintiff No,2 minor was held entitled to get maintenance allowance from September, 2004 and onward till his majority @ Rs,1500 per month. The suit for recovery of dowry articles was partly decreed and plaintiff/respondent No,2 was held entitled to get back four chairs, one tables, two beds, one sofa set, one pedestal fan, one iron, a sewing machine, a small tape-recorder, a jaiy namaz, a set of plastic pots, a water set of glass, a tea set, spoon set and six garments. Suit for dower was decreed to get Rs,10,000 vide judgment and decree dated 11-6-2009.. Feeling aggrieved, the respondent No,2, plaintiff filed an appeal before the learned Additional District Judge, Shujabad for the enhancement of maintenance allowance and for decree the suit of dowry articles as per list Exh.P.1. Petitioner/defendant did not file any appeal against the judgment and decree dated 11-6- 2009 passed be learned Judge Family Court. Learned Additional District Judge, Shujabad vide judgment and decree dated .8-1-2010 dismissed the appeal to the extent of maintenance allowance by the learned trial court and only increased future allowance @ 10% after every two years, but the learned appellate court to the extent of dowry articles remanded the case to the learned trial court by observing that the learned trial court has not properly framed the issues and following issues are framed by the learned appellate court:--
(i) Whether the plaintiff is entitled to the decree for recovery of dowry articles as per list annexed with the plaint or in the alternative entitled to recover the price of dowry articles? OPP
(ii) Whether the motorcycle Honda CD-70 bearing Chasis No,AE371834, Engine No,1777970, Model 2002 was purchased by parents of the plaintiff from Messrs Shad Motors on 20-5-2002 and it was registered in the name of the respondent? OPP
(iii) Whether parents of the plaintiff endowed only the dowry articles mentioned in paragraph No,7 of the written statement and nothing else was gifted as a dowry at the time of marriage? OPP
(iv) Relief.
5. Learned counsel for the petitioner contends that evidence of both the parties was recorded by the learned Judge Family Court after appraisal of evidence on record. Learned Judge Family Court vide judgment and decree dated 11-6-2009 decreed the maintenance allowance partly and held the plaintiff/respondent No,2 entitled for maintenance allowance from September, 2004 till 20-6- 2005 plus three months as "Iddat" period @ Rs,1000 per month: minor plaintiff No,2 was held entitled to get maintenance allowance from September, 2004 and onward till majority @ Rs,1500 per month, it was held that previously paid interim maintenance allowance shall be adjusted in it. The suit regarding the dissolution of marriage it was held that the divorce between the parties has been effected. In the suit regarding the return of dowry articles, it was partly decreed and plaintiff/respondent No,2 was held entitled to get back four chairs, one table, two beds, one sofa set, one pedestal fan, one iron, a sewing machine, a small tap-recorder, jaiy Namaz, a set of plastic pots, a water set of glass, a.Tea set, spoon set and six garments. Plaintiff is entitled to get Rs,10.000 from the defendant as dower.
6. I have heard the arguments of learned counsel for the parties and perused the record.
7. In presence of ample evidence on record there is no need to remand the case to the Judge Family Court; learned Judge Family Court had rightly framed issues with regard to dowry articles and no application was moved on either side to correct the issue nor the respondent moved any application for correction of issues framed by the learned Judge Family Court. The remand order passed by Additional Sessions Judge is just prolonging the matter. Family cases should be adjudicated without any delay. If Judge Family Court again starts recording the evidence it will further prolong the matter. The order passed by the learned Additional District Judge is hereby set aside and the learned Additional District Judge is directed to decide the appeal on merit in the light of evidence already produced by both the parties.