Through This writ petition, petitioners seek setting aside of judgments and decrees dated 27.06.2009 and 05.10.2009 passed by learned Judge Family Court, Burewala and learned Additional District Judge, Burewala District Vehari respectively.
2. Brief facts of the case are that marriage of the plaintiff was solemnized on 08.03.2002 with the defendant according to Shariah. The plaintiff went to the house of Defendant No. 1 in Faisalabad alongwith her dowry articles. The plaintiff started performing marital obligations towards Defendant No. 1. Defendant No. 1 is residing in Saudi Arabia in connection with his job. In his absence the articles of dowry of plaintiff are lying with Defendant No. 2. The Defendant No. 2 is the special power of attorney of Defendant No. 1. After marriage, in the beginning behaviour of Defendant No. 1 remained cordial with the plaintiff but changed later on. He used to beat the plaintiff. The behaviour of Defendant No. 2 not remained cordial with the plaintiff. The Defendant No. 1 went to Saudi Arabia after one year of the marriage. He did not send any maintenance to the plaintiff from Saudi Arabia. Defendant No. 2 expelled the plaintiff alongwith her minor daughter in 2006. She came to Burewala alongwith the minor. The Defendant No. 2 came to Pakistan in December 2007 and took the plaintiff with him to Faisalabad but expelled the plaintiff alongwith her daughter from his house in three clothes on the night of 27/28-01-2008. After that the Defendant No. 1 never tried to rehabilitate the plaintiff. She has developed strong aversion against the Defendant No. 1 and cannot reside within the limits ordained by Almighty Allah.
3. The petitioner contested the suit by filing written statement wherein defendant/petitioner raised some preliminary objections that the suit is not maintainable in its present form. Suit is false and frivolous. Plaintiff/respondent is estopped by her words and conduct to file this suit. Further stated that Defendant No. 1 is residing with his aged parents; plaintiff came to Burewala happily just to meet her parents; Defendant No. 2 extremely loves the plaintiff and his minor daughter. Plaintiff is "Ghairabad" without any rhyme and reason. Defendant No. 1 is ready to return the dowry articles of the plaintiff. Defendant No. 1 produced list of dowry articles Ex.D.2.
4. On 11.05.2009 the case was fixed for pre-trial reconciliation and the same failed. Suit for dissolution of marriage of the plaintiff was decreed under Section 10(iv) of the Family Court Act, 1964. Out of divergent pleadings of the parties, following issues were framed:--
1. Whether plaintiff is entitled to recover the dowry articles according to the list annexed with her plaint or in lieu its price Rs. 4,67954/-? OPP
2. Relief.
5. The plaintiff produced her evidence consisting of her own statement as PW-1 and statement of Muhammad Iftikhar as PW-2. In documentary evidence, she produced list of dowry articles Ex.P.1 and receipts of purchase of Furniture Mark-PA. Defendant himself appeared as DW-1 and produced Iftikhar Ahmad as DW-2 and produced the list of dowry articles of the plaintiff as Ex.D.1. After hearing both the parties, in the light of appraisal of the evidence on record learned Judge family Court vide judgment and decree dated 27.06.2009 decreed the suit of plaintiff for dowry articles according to the list of dowry articles Ex. Pd.
6. Being aggrieved from the judgment and decree of the learned Judge Family Court, plaintiff, Afia Almas filed an appear assailing the judgment and decree dated 27.6.2009 on 28.07.2009.
Petitioner/ defendant also filed an appeal before the learned Additional District Judge assailing the judgment and decree passed by the learned Judge Family Court on 27.6.2009 praying the dismissal of the suit. She has also filed an appeal against the judgment and decree dated 27.06.2009 on 28.07.2009. Learned Additional District Judge, Burewala disposed of both the appeals by consolidated judgment and decree dated 05.10.2009 modified the judgment and decree of the learned Judge Family Court dated 27.06.2009 and decreed the suit for full claim of Rs. 4,67,954/-, accepted the appeal of Afia Almas and set aside the observations made by learned Judge Family Court. Placing reliance on Muhammad Habib versus Mst. Safia Bibi (2008 S.C.M.R. 1584).
7. Learned counsel for the petitioner, Tariq Hussain etc. contends that judgment of both the Courts below are against law and facts of the case; both the Courts below committed material illegality and irregularity ignoring the evidence of the petitioner/ defendant and both the Courts below wrongly preferred the documentary as well as oral evidence; learned lower appellate Court while giving the finding have not appreciate oral as well as documentary evidence; there are material contradictions in oral evidence as well as in documentary evidence; learned lower appellate Court have wrongly modified the findings of the learned trial Court, list of dowry articles Ex.P.1 is wrongly exhibited by the learned trial Court.
8. Conversely learned counsel for the respondent fully supported the judgment of the learned ,Additional District judge, Burewala; further submits that learned Additional District Judge rightly placed reliance on caste titled Muhammad Habib versus Mst. Safia Bibi (2008 SCM R 1584) rightly modified the judgment and decree of the learned Judge Family Court; respondent/plaintiff fully proved her case she appeared herself as PW-1 and narrated each and every article given to her by her parents in dowry. The said articles are mentioned in the plaint and in the statement of PW-1, plaintiff herself. Both the Courts below rightly appreciated the evidence produced by the plaintiff/ respondent; further submits that evidence produced by the plaintiff/respondent was convincing, rational and believable.
9. I have heard the learned counsel for the parties and perused the record.
10.There are concurrent findings of two Courts below with regard to the list of dowry articles.
Learned Judge Family Court after discussing at length the evidence produced by both the parties had decreed the suit of the plaintiff/respondent to the extent of dowry articles as per list Ex.P.1 while the Additional District Judge placing reliance on same evidence rightly decreed the suit of plaintiff/petitioner for Rs. 4,67,954/-. Learned counsel for the petitioner could not point out any illegality or irregularity or jurisdictional defect/error in the judgments passed by the learned Additional District Judge and the Judge Family Court. The writ jurisdiction cannot be exercised as an appeal. The findings of two Courts below about the facts and law cannot be disturbed in writ jurisdiction unless petitioner succeeds in establishing any error or jurisdictional defect in the judgments of two Courts, below. It is observed that dowry articles were received from the parents of the plaintiff/ respondent, Afia Almas by Respondent No. 1, who has not appeared himself in the witness box. The respondents have admitted the receipt of dowry articles but have contended that the dowry articles as per list Ex.D-1 were received by them. While appearing as PW-1 the respondent/plaintiff Afia Almas stated in her cross-examination that the list of dowry articles was prepared by her brother and the same was delivered to Respondent No. 1 alongwith articles of dowry. The Respondent No. 2 while appeared as DW-1 had affirmed in cross-examination that a copy of list of dowry articles was given to them at the time of marriage but stated that Ex. P.1 was not that list which was prepared and given to petitioner alongwith dowry articles, respondents must have produced list which was admittedly given to them at that time but no such list has been produced by them. It gives rise to an adverse presumption against the claim of the respondents. It can be safely gathered that dowry articles given to the respondents were as per list Ex. P.1. When it is proved that list Ex. P.1 is correct, non-production of receipts of purchase of dowry articles is not fatal. The articles of dowry as per list Ex. P.1 are of such a nature that such articles are ordinarily given to a bride by her parents at the time of marriage.
11.In the light of above discussion, this writ petition being meritless is dismissed in limine.