MANSOOR AKBAR KOKAB, J.--- Vide present writ petition, the petitioner Syed Nadeem Raza, assails the judgment and decree dated 24-9-1999 of learned Judge Family Court, Ali Pur and that of learned Additional District Judge, dated 4-5-2000, whereby the suit of the respondent No,1 Mst.
Amina-tuz-Zahra, for recovery of dower amount of Rs,5 lac in cash, one house built upon 1 Kanal area at Multan and 1 square of agricultural land situated at Chak Muhammad Shah, near Bahawalnagar Farm, District Okara, was decreed.
2. Learned counsel for the petitioner/judgment debtor attacks the decree inter alia on ground that as per Nikahnama Exh.P.2, the dower amount fixed at the time of marriage ceremony was only Rs,5 lac payable on demand, as entered into Column No,13, whereas the house B and the agricultural land were though mentioned in Column No,16 of the Nikahnama but are not to constitute the payable dower fixed or agreed upon between the parties at the time of marriage ceremony.
3. Learned counsel for the respondent repels the arguments on two fold grounds, firstly, that the property mentioned in Column No,16 of the Nikahnama was in fact the additional dower than the one mentioned in Column No,13 of the Nikahnama and secondly, since the suit for recovery of dower filed by the respondent incorporated the details about the dower and such were never specifically denied in the corresponding para of the written statement filed by the petitioner/defendant, therefore, the defendant/petitioner is deemed to have accepted the enhancement of payable dower to the extent of one mentioned in the plaint.
4. Before embarking upon the arguments noted hereinabove advanced by the learned counsel, the admitted position with regard to payment of dower, whatever is due, is that the defendant in his written statement took the plea that the plaintiff's father had received the dower amount on 3-5- 1993 and nothing was due between the parties but unfortunately any payment to that extent on the said date or thereafter during the pendency of the suit before the lower courts, was never proved, therefore, the dower is considered as unpaid,.
5. Now comes the quantum and value of the payable dower in the light of the, pleadings and the Nikahnama Exh.P.2. The contention of the learned counsel for the respondent with regard to enhancement of dower by the bridegroom after marriage is not to convince this court as he relies upon the facts pleaded by the parties in their pleadings in the shape of assertion and evasive denial. Irrespective of question of evasive denial, the court is of the view that to file a specific claim before a court of competent jurisdiction, some cause of action should have been accrued to the plaintiff before filing the suit or the. Claim and by no means the claim is said to have been established as a right in favour of the plaintiff only because of filing of the suit itself and improper or evasive reply niade in written statement tiled by the defendant in reply to the enhanced claim incorporated in the plaint. A claim can only be put forth the court of competent jurisdiction through a suit when the same has already been established as a right to be enforced constituting a cause of action for a lis in favour of the plaintiff. Order VII, rule 1(e), C.P.C. Makes it incumbent that the plaint shall contain the facts constituting the cause of action and when it arose. Admitting certain claim by a defendant in his written statement either patently or by evasive denial is not to equate with emergence of fresh cause of action for a claim of relief, already put forth through that plaint.
Fresh cause of action, if ever accrues because of some new circumstances or being of a nature of recurring cause of action requires amendment of the plaint for re-compliance of provisions of Order VII, rule 1(e) and the changed relief, which the plaintiff claims, because of fresh cause of action also necessitates amendment in the prayer of the suit as by Order VII, rule 1(g) specific relief is also be embodied in the plaint. Admission of certain facts through written statement cannot alter the allegedly accrued cause of action pleaded in the plaint. No one can be allowed to take benefit of some technicalities or because of some defective pleadings submitted by one party in a sense that some new right has been accrued traceable somewhere in the past.
6. Even otherwise by carefully examining the pleadings of the parties, it is clear that petitioner/defendant had specifically mentioned in para N. 2 of his written statement that the agreed upon dower had been paid to the plaintiff through her father on 3-5-1993. The words "agreed upon dower" ( "Cfe..4.){{URDU TEXT}} do indicate that he specifically referred to a specific amount and dower which was agreed at the time of marriage i.e. One mentioned in Column No, 13 of the Nikahnama, Exh.P .2.
7. The para No, 2 of the plaint filed by the respondent itself is quite ambiguous wherein she mentioned'that the Nikah and marriage was ceremonized on following conditions:---
(a) Rs,5 lac dower amount payable on demand;
(b) Built up house upon an area of 20 Marlas at Multan;
(c) One square agricultural land situated at Chak Shah Muhammad, Bahawalnagar Farm, District Okara;
(d) Respondent will allow the plaintiff to carry on her education according to her own will.
8. From the above contents of para No, 2 of the plaint except for amount mentioned at serial (a), the rest of the covenants mentioned at serial Nos. (b), (c) and (d) have been mentioned as the conditions of the marriage and it is not mentioned that the items (b) and (c) are the part of dower amount. The conditions of the "marriage" and the "dower" are by no means to stand on equal pedestal as the former is not the condition precedent of Nikah, whereas without fixation of dower, the concept of Nikah is inconceivable.
9. Apart from pleadings of the parties, the format of Nikahnama Exh.P.2 and the contents thereof are to negate the arguments advanced by the learned counsel for the respondent/plaintiff to the effect that the entries made in Column No,16 of the said Nikahnama are to be read along with the entries of Column No,13 of the same, constituting a single bigger whole dower payable to the bride by the bridegroom. The court finds no nexus between the entries of Column No,13 and the Column No,16 of the Nikahnama except in circumstances, when all or part of any dower amount has been paid in shape of kind and in case nothing has been paid in shape of kind in lieu of fixed dower, then any entry made therein would be superfluous, needless and dispensable. In Column No,13, the total of the dower amount is to be mentioned as it is worded, "amount of dower" (0, ).{{URDU TEXT}} In the present case, this column bears the entry, "Rs, 5 lac, payable on demand" ( ). Column No,16 is worded, "if dower or portion of the same has been paid by virtue of some property and if so what is the nature of the property and what value of the same has been determined between the parties". {{URDU TEXT}}
10. The wording of the said column is crystal clear to indicate that it refits to past transaction. It never covenants between the parties for some future liability, rather the same is considered as an explanation for an act done in compliance and in furtherance to agreed amount of payable dower.
11. It is pertinent to note that the learned Judge Family Court, while deciding the issue with regard to determination of payable dower only decided the fact that the dower was not proved as having been paid as pleaded by the defendant, whereas no specific determination of the fact has been made that what was the fixed dower between the parties. The learned Additional District Judge dismissed the appeal without touching the merits of the case and held that the appeal was incompetent because, the specifically ordered about the bond of Rs,5 lac by the lower court, to be deposited by the defendant, was never complied with. Both of the judgments are even not to stand with the requirements of the C.P.C. Vis-a-vis, term, "judgment". Such generalization is not acceptable nor so are expected from the judicial officers qua required deliberation upon each and every fact in the light of relevant law with due application of mind. While setting- aside the judgments; the suit is decreed only to the amount of Rs,5 lac payable as dower. Writ petition is accepted.
12. At this juncture, both of the learned counsel of the parties apprises that in fact, by order of this court the amount of Rs,5 lac has already been deposited by the petitioner in the court as an of anticipated tentative dower amount by the court and the same has been withdrawn by the respondent/plaintiff with the permission of the court. It means the decree awarded by this court has already been satisfied. The parties are left to bear their own costs.