1. C.M. No.1 of 2013 MUHAMMAD FARRUKH IRFAN KHAN, J.--- Learned counsel does not press this petition for the grant of interim relief and instead requests for hearing of the main petition today. Prayer is allowed. Let the main case be argued today.
2. MAIN CASE Petitioner assails legality of impugned appellate judgment dated 24-6-2013 whereby the learned Additional District Judge Depalpur while setting aside the judgment and decree dated 22-9-2012 remanded the case to the trial Court for evaluation of dowry articles as claimed by plaintiff wife.
3. 2.Facts of the case reveal that respondent wife filed a suit for recovery of dower (gold ornaments) dowry articles amounting to Rs.6,05,200 as well as maintenance allowance for herself andthe minor child. Petitioner entered appearance; filed his written statement and controverted the averments enumerated in the plaint. Trial Court framed the issues and directed the parties to lead their evidence. Respondent wife in order to substantiate her case adduced oral as well as documentary evidence. However, petitioner despite numerous opportunities failed to produce his evidence in rebuttal with the consequence that his right to produce evidence was closed.
4. Resultantly, suit of respondent wife for maintenance was partly decreed @ Rs.1200 per month from the date of institution of the suit till Iddat period. Whereas, to the extent of minor it was also partly decreed for Rs.1200 per month from the date of the institution of suit and until the minor attains majority along with 10% per annum increase. Similarly, suit for recovery of dowry articles was decreed for Rs.50,000 as alternate price thereof, and to the extent of recovery of Haq Mehr in the form of gold ornaments weighing 5 tolas, it was also decreed in favour of respondent wife vide judgment and decree impugned dated 22-9-2012.
5. 3.Being aggrieved, both the petitioner as well as respondent wife preferred separate appeals against the judgment and decree of the trial Court dated 15-2-2013 and 22-9-2012 respectively.
6. Learned Judge of the first appellate court set aside the judgment and decree of the trial dated 22- 9-2012 and remanded the case for retrial of the suit with a direction to re-assess and evaluate the quantum of each dowry article. It was also directed that parties will be provided full opportunities to produce their evidence.
7. 4.It is the case of the learned counsel for the petitioner that orders impugned of both the courts below run counter to the facts and evidence on record, therefore, the conclusion drawn based on misreading and non-reading of evidence manifestly suffer from misapplication of law and mind causing irreparable loss to the petitioner. Adds that determination of the price of dowry articles has been undertaken on erroneous assumption causing miscarriage of justice, hence, both judgment and decree of the trial Court as well as impugned appellate order being a nullity in the eye of law cannot sustain and are liable to be set aside.
8. 5.Heard. While juxtaposing both the orders of learned Additional District Judge dated 17-1-2013 and 24-6-2013 it becomes clear as crystal that they are self conflicting, directions contained in impugned order dated 24-6-2013 are irreconcilable with the previous remand order dated 17-1- 2013. Record also bears it out that petitioner did not comply with the directions as contemplated by order dated 17-1-2013 in letter and spirit whereby he was provided one single opportunity to produce his entire evidence subject to payment of interim maintenance allowance to the minor @ Rs.1500 per month from the date petitioner's evidence was closed. It was also observed in the order dated 17-1-2013 that in case of the failure of the petitioner to produce his evidence, impugned judgment and decree will stand revived. Notwithstanding unambiguous directions of the appellate court, petitioner neither produced his evidence on the fixed date i.e., 15-2-2013 before the trial Court nor did he deposit interim maintenance to the minor as a corollary whereof impugned judgment and decree dated 22-9-2012 stood automatically revived. Evidently, petitioner did not comply with directions enumerated in the order dated 17-1-2013 as admittedly neither he availed the last opportunity nor did he produce his entire evidence. Furthermore, he also did not deposit the interim maintenance allowance to the minor. Unquestionably, plaintiff's evidence remained un-rebutted. In such an eventuality how the parties could be granted another opportunity through impugned order dated 24-6-2013, particularly so when the petitioner did not have any justiciable cause. The matter being a past and closed transaction could not be reopened, hence, impugned order in so far it remands the case directing parties to produce their entire evidence afresh being a nullity in the eye of law cannot hold the field. For all intents and purposes, having passed order dated 17-1- 2013 the learned Judge of the appellate court had become functus officio to pass second remand order. The learned Judge of the appellate court while passing impugned order dated 24-6-2013 appears to have lost sight of the fact that admittedly petitioner's right to produce his evidence was initially closed. On appeal, his case was remanded vide order dated 17-1-2013 contemplating twofold directions, but unfortunately he did not avail the last opportunity and in fact flouted order dated 17-1-2013. As a natural corollary automatic revival of impugned decree of the trial Court dated 22-9-2012 created an inviolable vested right in favor of respondents. Nos.1 and 2 which could not be allowed to be frustrated on the one pretext or the other.
9. 6.As regards plaintiff's claim for the recovery of Haq Mehr in the form of gold ornaments weighing 5 tolas, perusal of Exh.P3 makes it evident that it finds mention in Nikah Nama. In absence of any evidence on record to the effect that petitioner has paid Haq Mehr to the plaintiff, the issue qua the recovery of gold ornaments was rightly decided against the petitioner and in favor of respondent wife. Hence, the finding of the trial Court on this particular issue is maintained. It is interesting to note that learned Judge did not at all advert to this issue in his judgment. In so far as maintenance of the minor is concerned, it would suffice to add that un-rebutted but ample evidence on record speaks volume of the financial status of the petitioner, therefore, this Court is of the considered view that decree of the trial Court called for interference, hence, it was rightly modified for enhancement of maintenance allowance of the minor. Petitioner being the father and natural guardian is legally and morally bound to support and maintain his offspring. Finding of the appellate court qua the maintenance allowance of respondent wife is also justified on the facts and circumstances of the case. Hence, needs no interference.
10. 7.Adverting to the crucial issue for determining the value of dowry articles, impugned order of the appellate court in so far as it remands case to the trial Court, does not appeal to reason, inasmuch as, the case was earlier remanded but petitioner did not comply with the terms of order dated 17-1- 2013 and secondly un-rebutted evidence of respondent wife was not evaluated and scrutinized in its true perspective. Therefore, only to this extent impugned order is set aside with direction that learned Judge of the appellate court who dealt with the appeal shall himself scrutinize and determine ostensible price of dowry articles of respondent wife, and thereafter shall pass appropriate order in accordance with law within two weeks of the receipt of this order and shall also transmit compliance report to this Court as to the course of action adopted.
11. 8.Before parting with this order, needless to emphasize that special forum has been constituted for accelerated disposal of family suits with the prime objective and function to adjudicate family disputes under the Family Courts Act, 1964. Courts are entrusted with the sacred task to administer justice in accordance with law and to curb multiplicity of proceedings so as to minimize and lessen the miseries and agonies of the litigants more particularly destitute and pathetic women.
12. For what has been discussed above, this petition is disposed of in terms articulated above.