1. J U D G M E N T.
2. WAQAR AHMAD SETH,J:- The petitioners through the instant revision petition under section 115 CPC has questions the judgment/order dated 19/04/2012 of the learned Additional District Judge-VI, Peshawar whereby he dismissed their appeal and thus upheld the judgment/order dated 20/12/2010 of the learned Civil Judge-XVIII, Peshawar rejecting the application of the petitioners for restoration of the suit dismissed in default on 09/04/2008.
3. 2- This case has a long drawn-out and chequered history.
4. It is, therefore, necessary to give in some detail, a narration of the relevant facts necessary for adjudication of this petition. On 06/06/192 the petitioners instituted a suit for declaration and permanent injunction against the respondents which was contested only by official defendants No.4 and 5 by submitting their written statements. Later on the petitioners with the permission of the Court filed amended plaint wherein Gul Muhammad and Shah Jehan were also impleaded as defendants. Issues were framed and there after all the defendants absented themselves and thus placed ex-parte and after recording ex-parte evidence of the petitioners, the learned Civil Judge- IV, Peshawar vide his judgment and decree dated 24/10/2002 decreed the suit ex-parte in favour of the petitioners against the defendants. There after on 28/11/2002 Shah Jehan respondent No.14 herein (defendant No.7 in the suit) submitted an application for setting aside the ex-parte decree dated 24/10/2002 which was contested by the petitioners but the same was accepted by the learned Civil Judge, Peshawar vide order dated 10/05/2004 and the ex-parte decree dated 24/10/2002 was set aside. This order was challenged by the petitioners by filing revision petition before the learned Additional District Judge-X, Peshawar who vide his judgment/order dated 20/09/2005 dismissed the same. There after the trial Court fixed the case for submission of written statement of the defendants but they did not submit the same and their right of defence was struck of under Order VIII rule 10 CPC and passed a decree in favour of the petitioners vide judgment and decree dated 27/05/2006 of the learned Civil Judge-VII, Peshawar. Shah Jehan respondent No.14 preferred an appeal against the aforesaid judgment and decree before the learned District Judge, Peshawar which was accepted, judgment and decree of the trial Court was set aside and the case was remanded back to the trial Court with the direction to proceed in accordance with law after affording opportunity of hearing to the parties vide judgment and decree dated 07/06/2007 and the parties were directed to appear before the trial Court on 09/06/2007.
5. 3- After remand on 09/06/2007 the petitioners put their appearance in the trial Court but the Presiding Officer was on leave and the staff of the Court apprised them that on receiving the record from the Court of appeal, parties would be summoned for the date fixed for next proceedings. The trial Court on receiving record from the Appellate Court, sent the same to the Court of Mr.Gohar Rehman the then Additional District Judge-XI, Peshawar which was requisitioned by his predecessor vide order dated 12/01/2005 in Civil Revision No.15 of 2007. After receipt of the record back, the trial Court summoned the parties for 25/10/2007 but they could not be served for the first time and on 28/02/2008 the case file was sent to the learned District Judge, Peshawar for entrustment to another Civil Judge for disposal which was entrusted to Mr.Ashraf Ali, Civil Judge, Peshawar for disposal by the learned District Judge, Peshawar vide his order dated 29/02/2008 and the date 01/03/2008 was given for appearance of the parties before the said Civil Judge who on 09/04/2008 dismissed the suit of the petitioners in default.
6. 4- The petitioners having learnt about the dismissal of their suit for non-prosecution on 20/06/2008, they submitted an application for restoration of the same on the following day i.e. 21/06/2008 which was only contested by defendants No.5 & 7 and after hearing the learned counsel for the parties, the same was dismissed vide judgment/order dated 20/12/2010 being barred by time. Feeling aggrieved from the aforesaid judgment/order of the trial Court, the petitioners preferred appeal which too met the same fate vide judgment/order of the learned Additional District Judge-VI, Peshawar dated 19/04/2012, hence the instant revision petition.
7. 5- I have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.
8. 6- Perusal of the record reveals that both the Courts below have held that Article 163 of the Limitation Act was applicable in the instant case and, therefore, the application for restoration of the suit should have been filed within thirty days from the date of such dismissal and not Article 181 of the Limitation Act. It is not necessary in this case to decide as to whether Article 163 of the Limitation Act was applicable in the case as argued by the learned counsel for the respondents or that it was Article 181 of the Limitation Act which was applicable as argued by the learned counsel for the petitioners. As contended by the learned counsel for the petitioners that the suit of the petitioners was dismissed without notice to them on a date i.e. 09/04/2008 which was not a date of hearing is sufficient for the purpose of holding that the dismissal of the suit for non-prosecution is not legally sustainable.
9. 7- Perusal of record also reveals that on the receipt of the file from the Court of learned Additional District Judge-XI, Peshawar, the learned trial Court issued notice to the parties for 25/10/2007 and on 25/10/2007, 10/11/2007 the Presiding Officer was on leave and on 15/12/2007 and 28/01/2008 the Presiding Officer was stated to be transferred and on 28/02/2008 the learned Civil Judge sent the file to the learned District Judge, Peshawar for want of his jurisdiction and on the next day i.e. 29/02/2008 the learned District Judge, Peshawar entrusted the case to Mr.Ashraf Ali Khan, Civil Judge, Peshawar and a date i.e. 01/03/2008 was given to appearance of the parties in the said Court. On receipt of the file, on 01/03/2008 Shah Jehan defendant was marked present while none present for the plaintiff and the case was adjourned to 12/03/2008 on which date clerk of counsel for the petitioners informed the Court that the petitioners have no contact with them, therefore, again notice was issued to the petitioners for 09/04/2009 and on the said date according to the trial Court that plaintiff Rehmat Khan had signed the notice but no one present, hence the suit was dismissed for non-prosecution. Record further reveals that the petitioners have instituted a suit against the respondents in the year 1992 and during this long period they are regularly appearing and attending the various Courts which clearly shows their interest in pursuing their case. Even otherwise the petitioners including Rehmat Khan Plaintiff had appointed Shah Jehan as their attorney and there is nothing on record that the said attorney has ever been served in the case.
10. 8- The above referred circumstances clearly show that the petitioners were not in fault, therefore, cannot be blamed for the dismissal of their suit for non-prosecution. The question of limitation in respect of the application seeking restoration of the suit would only be relevant if the dismissal itself was proper. Law rather than foreclosing cases on mere technicalities, favours adjudication of disputes on merit. The superior Courts also held in a number of judgments that the cases must be decided on merits instead of technicalities. In a case (PLD 1989 Supreme Court 532), the Apex Court held that "a party should not be denied a relief on account of technicalities in the procedural law as the same is formed for the purpose of regulating the legal proceedings through their design extended and design of foster the cause of justice than to defeat it". Subsequently, the aforesaid judgment was also considered in (1993 SCMR 363) and followed the same principle.
11. 9- In view of what has been discussed above, the instant revision petition is allowed, judgments & decrees/orders of both the Courts below are set aside, application of the petitioners for restoration of the suit is accepted and the case is remanded back to the learned trial Court with the dirction to proceed with its trial in accordance with law. Since it is an old matter pertaining to the year 1992, the trial Court is directed to conclude the same as expeditious as possible. Parties are directed to appear before the trial Court (Civil Judge-XVIII, Peshawar) on 12/01/2015.
12. ANNO UNCED.
13. Dated: 15/12/2014.
14. J U D G E 8- In writ petition No.2114-P/2013 respondent husband has challenged the judgment and order of both the courts below in respect of dower of half share of the house mentioned in the heading of the plaint. While in writ petition No.2266 filed by petitioner-wife, she has challenged the judgment of the appellate court whereby the decree passed by trial court in respect of house No.121 Street No.12 Sector F-8 Phase-VI, Hayatabad Peshawar was modified to the extent that instead of half share in the house as dower, the market price thereof is decreed in her favour. While in writ petition No.2265 she seeks the constitutional jurisdiction of this court and questioned the judgment of both the courts below with regard to non-payment of ten tolas golden ornaments as dower.
15. 9- It is contended by the plaintiff-wife that her nikah was performed with defendant-husband in consideration of tolas gold ornaments, half share of her house and Rs.2000/- as maintenance allowance. In support of her claim she produced three witnesses. She appear as P.W.1 and given the detail of execution of nikahnama Ex.PW-1/1 and affidavit Ex.PW-1/2. Rehmatullah and Wazirzada were examined as PW-2 and PW-3 respectively. Both the witnesses have supported the contents of nikahnama and categorically stated that it was executed in her favour. Defendant-husband was examined as DW-1. He stated that nikah between the spouses was performed orally and an affidavit was executed before nikah between the parties. He stated that half share of the house was given to the plaintiff in lieu of dower which is situated in his village District Karak. He further stated that ten tolas of gold ornaments were fixed as dower out of which five tolas was prompt and remaining five tolas as deferred. He admitted his signature on the affidavit Ex.PW-1/2. In cross examination he showed his ignorance about the fact that whether the nikan was oral or in writing.
16. He also could not disclose the name of the witnesses in whose presence nikah was performed.
17. Though he denied the execution of nikahnama and contended that she annexed bogus and tempered documents with her plaint and made tempering in nikahnama. But from the record, it reveals that the defendant miserably failed to prove that she had made any tempering in the nikahnama or prepared bogus documents. Though, in his statement he admitted the dower and share in the house which was given to her in lieu of her dower which is situated in his native village but such stance is not mentioned in the written statement. It is settled law that parties can not go beyond the pleadings. Thus, his evidence is not admissible. The defendant-husband himself admitted his signature on affidavit Ex.PW-1/2. He has not been able to prove any tempering in the nikahnama. While plaintiff-wife has proved the nikahnama through oral and documentary evidence. In the nikahnama Ex.PW-1/1 the name of Rehmat Ullah and Amir Daraz Khan are mentioned in its column No.8. Plaintiff produced both these witnesses as PW-2 and PW-3.
18. Defendant also admitted the presence of these PWs at the time of nikah. In column No.13 to 17 of nikahnama the detail of dower is mentioned which included half share in the house situated in Hayatabad, ten tolas gold ornaments and Rs.2000/- per month as maintenance allowance.
19. 10- In writ petition No.2114-P of 2013 respondent/defendant contended that it is clear from the pleading of the parties and supporting documents annexed thereto that dower claimed by plaintiff-wife is of deferred category and could be claimed only in case of dissolution of marriage by death or divorce, but this material fact has been overlooked by both the courts below, which amounts to departure from evidence and not permissible under the law and rules governing the subject. These arguments were rebutted by learned counsel for the plaintiff-wife and contended that the dower has great significance in the contract of marriage in the Islamic society. It was obligatory upon the husband to pay dower to the wife happily. According to learned counsel, the question of paying of dower happily in the eventuality of dissolution of marriage by divorce did not arise, in as much as the parties were afflicted with bad feelings against each other, therefore, no husband would pay it happily at the time of divorce. Hence according to the learned counsel, the whole dower has to be paid on demand. He also contended that dower is a gift given by the bride grown to the bride. That Holy Quran is silent on two type of dower i.e. prompt and deferred dower.
20. He relied on sura Al-Nisa V 4.4 of Holy Quran and sated that according to the command of Allah "SWT given in the Holy Quran (Sura Al-Nisa, V.R.4) read as under:- "At the time of marriage, give the women their dowers willingly as an obligation; but if they, by their own free will, give up to you a portion of it then you may enjoy it with pleasure ". Record shows that during the course of trial respondent-defendant submitted an application for deletion of part B from the suit pertaining to deferred dower being pre-mature in view of section 290 of Muhammadan Law. This application was contended by plaintiff and the learned trial court vide order dated 12.7.2010 while relying in 2006 YLR-33 dismissed the application by holding that dower whether prompt or deferred was inalienable right of wife and after consummation same would become vested right for a wife at that time. This order has not been challenged by the respondent- husband. At appellate stage he had challenged the order/judgment dated 15.3.2012 on the sole score that the same is liable to be set aside, as the right of further cross examination and production of additional evidence was illegally struck off by the trial court. In appeal, he has not challenged the order dated 12.7.2010. Now, through this constitutional petition, he challenged it. First, we want to see whether the dower fixed in favour of wife was prompt or deferred. As discussed above, the plaintiff-wife has been able to prove the contents of nikahnama Ex.PW-1/1 which has got much authenticity then any other documents. The detail of dower is given in para No.13 and 17 of the Nikah Nama. Here we deem it proper to reproduce the relevant para of the Nikahnama (Para No.13, 14, 15, 16 and 17) as under:-- With regard to the dowered house, it is not mentioned that it is deferred. In para No.16 it is clearly mentioned that share of 7 marlas house situated at phase No.VI F 8, Hayatabad, Peshawar has been given. Only in respect of ten tolas gold ornaments, five tolas has been declared as prompt and five tolas as deferred and it is cleared from record that no decree in respect of golden ornaments has been given. The respondent-husband has not been able to prove his contention. So far the contention of plaintiff-wife in Writ Petition No.2266 of 2013 with regard to the decree of market value (price) of the half share in house no.121 Street No.12 Sector F-8, Phase-VI, Hayatabad, Peshawar is concerned, learned counsel for the petitioner at the very outset stated at the bar that he does not want to press the writ petition because plaintiff is ready to receive the market price of the house noted above instead of its half share.
21. 11- Petitioner-wife filed writ petitionNo.2265 to the effect that both the courts below have erred in not passing the decree of gold ornaments weighing 10 tolas claimed by her in the suit. From the perusal of plaint, it reveals that no such relief of ten tolas gold has been claimed by the plaintiff in the heading of the plaint and in the last para the plaintiff seeks only the grant of relief which has been claimed in the heading of the plaint.
22. Both the courts below have rightly confined themselves to the decree/relief as claimed for and refused to grant decree for gold ornaments which has not been alleged by the petitioner/plaintiff.
23. 12- In view of the above discussion, we hold that the petitioners have not been able to substantiate their claim in their respective writ petitions. The findings of both the courts below on the basis of evidence are not amenable in the writ jurisdiction. The High Court in exercise of its extra ordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can neither substitute findings of facts recorded by courts below nor give its opinion regarding adequate evidence. Such matter should be decided by courts below vested with jurisdiction to decide them.
24. Assessm ent of evidence is the function of Family Court which is vested with exclusive jurisdiction to decide matter. No misreading or non-reading of evidence by courts below was pointed out by the counsel for the petitioners. The concurrent findings of courts below cannot be successfully assailed in writ petition. Thus, all the three writ petitions being without force are hereby dismissed.