1. IKRAMULLAH KHAN, J.--- Petitioners, herein were defendants in the family case instituted by respondent No.1 in the Court of the learned Family Judge, Kohat wherein, respondent No.1 prayed for the decree of dower, maintenance and dowry articles being legally wedded wife of petitioner No.1, to the extent of 8 tolas gold ornaments, one room with courtyard out of the joint residential house of petitioner, maintenance allowance at the rate of Rs.4000 per month for 4 months in lieu of (iddat period) and, dowry articles fully described in the list annexed thereto with the plaint.
2. 2.The petitioners filed their joint written statement, with the assertion, that the dower has already been paid to respondent No.1, while 2 tolas gold ornament were sold with the permission of the respondent No.1, the amount whereof has been invested in a business. The issues for the purpose of leading evidence in this regard were framed and on the conclusion of recording evidence and other formalities, as envisaged under the Family Courts Act, 1964, the learned Family Judge, passed a decree in favour of the respondent No. 1 to the extent of her dower but in terms of Rs.45000 in lieu of 8 tolas gold, and Rs.40,000 in lieu of one room along with the courtyard as claimed by respondent No. 1 in her plaint, maintenance allowance for Rs.4000 per month but for the iddat days, dowry articles, which were included in the list attached thereto the plaint.
3. 3.The said decree was not challenged by the petitioners but was assailed in appeal by respondent No.1 in the Court of District Judge, Kohat. The learned Additional District Judge, Kohat, through the impugned judgment modified the judgment of the learned Family Judge to the extent, that the respondent No.1 is entitled to receive the prevailing market value/price in lieu of the 8 tolas gold instead of Rs.45000 which was fixed and assessed by the learned Family Judge being the market price/value at the time when the marriage was solemnized between the spouses (when they were).
4. 4.Being aggrieved and dissatisfied, of the impugned order/ judgment, and as no other adequate remedy was available to the petitioners, approached this Court through the instant constitutional petition.
5. 5.The learned counsel for the petitioners argued that the judgment of the lower appellate Court is against the established principle of law as, no one shall be burdened with responsibility, higher, greater than, which would be imposed by law. As the marriage was solemnized in the year 1999, and the rate/market price of 8 tolas gold was as fixed by the learned Family Judge, petitioner could not be charged to pay the prevailing current market price of the 8 tolas gold. He further submitted, that as respondent No.2 has not proved, her dower (if any) outstanding against the petitioner No.1, but the learned Family Judge, on the admission of the petitioner No.1 in the course of reconciliation proceeding awarded the decree, though the real dower fixed was 2 tolas gold, which with the permission of the respondents was sold after marriage and petitioner No. 1, invested the outcome of these 2 tolas gold in his business. Prayed for setting aside the impugned decree passed by the learned Additional District Judge, Kohat.
6. 6.On the other side, the learned counsel for the respondent No.1 with great vehemence, refuted all the arguments on behalf of petitioners, and submitted, that, as a rule, a decree could be only granted in conformity with the prayer asked thereof in the plaint and not in derogation thereof. The decree in terms of Rs.45000 in lieu of 8 tolas gold was unjust, unfair passed by the learned Judge Family Court, which was not appreciated by the learned Additional District Judge, hence on the appraisal of correct situation and proposition of law, it was modified to the current prevailing market rate of 8 tolas gold as just fair and based upon the correct law enunciated in this regard by the superior Courts, prayed for dismissal of the writ petition.
7. 7.Arguments heard and file perused.
8. 8.Preordained to comments on the legal aspect of the price of gold either to be the rate at the time of marriage/Nikah or be the current market one, intends to answer, the other grounds agitated by the learned counsel for the petitioners, insofar as, the non-proving of dower and that of 2 tolas dower as alleged by the petitioners.
9. 9.It is settled law, that no writ petition or revision in this regard is entertainable, maintainable in respect of any fact, grievance, whereof an appeal was allowed but not preferred. Keeping in view this golden principle of law, the petitioners are not to be permitted to agitate the transaction, which has attained finality and has achieved the status of past and closed transaction.
10. 10.As, the petitioners did not appeal or filed even cross-objection against the judgment/decree of the learned Family Court, are precluded to challenge the findings, given and decided against the petitioners by the learned Family Court. Legally they are estopped to challenge or re-agitate an issue which has attained finality except the impugned decree on the ground of fixing, determining and awarding/granting decree in term of market price in lieu of 8 tolas gold.
11. 11.As, there is no more dispute, and should not be so, that the dower as fixed, awarded was 8 tolas, and respondent No.1's prayer in her plaint was as such too, then, the learned Court was not in his legal jurisdiction to award a decree in term of money in lieu of 8 tolas gold, though any Court having jurisdiction in a matter as a general principle derived from the general law, in case a special law is remained salient in this regard, may mould the relief, but not in such manner, to frustrate, destroyed the main object of the prayer in utter disregard of the enshrined principle of law. What would have been the market rate of the gold in the year 1999, but if, the dower might have been paid in the year when the marriage was solemnized, then, the respondents in case of selling the gold in that time, or when the suit was instituted certainly would have obtained more money as compared to the prevailing rate in the year 1999. As the dower fixed was not in term of money but was expressed in terms of gold, therefore, the finding of the learned Family Court insofar as Rs.45000 in lieu of 8 tolas gold is concerned was erroneous and was correctly altered, modified by the learned Additional District Judge in this regard.
12. 12.No reasons, whatsoever, had been stated by the learned Family Court, while fixing/determining the price of gold even for the year, 1999. No Court may assume the status of an administrator in this regard, to determine himself, the value, rate of gold or other property, without taking recourse to the established principle in this regard and, without appointing of a commission in this regard as well as statements in respect of prevailing rates of gold from those who remained acquainted with such-like business of gold or without ascertaining the official market rate prevailing in the time when either the marriage was solemnized or, at the time of institution of suit or when the decree was awarded. As section 13 of the Family Courts Act, 1964 is not helpful in determining market value of ornaments (movable property) rather it was silent about determination of its value in case of decree for delivery of such property (movable) was unexecutable, then though provision of C.P.C. is not applied to proceeding before the Family Court, but for safe administration of justice the provision of Order XX, Rule 10, C.P.C. would, however be applicable insofar as the determination of value of the property (movable) is concerned and as such the learned Family Court in regard to the present case invoked the jurisdiction as envisaged in Order XX, Rule 10, C.P.C. and thereby determined the market value of the gold decree but in utter disregard of the procedure and law on the subject.
13. 13.Order XX, Rule 10, C.P.C. postulates as;--- "Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be made".
14. But both the Courts below failed to interpret the above provision in its true sense, and directly passed decree of money in lieu of the gold ornaments instead of passing the decree in alternative as envisaged in the above mentioned referred law.
15. 14.We are left with no other option but to correct, the impugned judgment as per requirement of law, with slight amendment in the decree passed by the learned Additional District Judge, Kohat dated 18-12-2012 and declare herewith that petitioners shall give back, 8 tolas gold to the respondent No.1 as per the prayer in the suit or the market price/rate which was prevailing on the date of institution of the suit i.e. 1-10-2010.
16. 15.We have fortified our this view by the judgment reported as (AIR (32) 1945 Peshawar 5) which was endorsed also by the Hon'ble Lahore High Court in case of Salma Bibi v. Manzoor Hussain, where in it was held as;--- "This provision of law made it compulsory for the trial Court to assess the price of wheat and to direct that it should be paid if the wheat is not delivered".
17. 16.The question as to when the cause of action arose is absolutely foreign to the assessment of the price by the Court under this rule. The application of this rule makes it obvious that the value according to the rate prevailing during the days when the suit was instituted is to be found out, and not the rate prevailing on some other date.
18. 17.However, keeping in view the poor financial status of the petitioners, while invoking herewith the jurisdiction as envisaged under Order XX, Rule 11, C.P.C. we allow the petitioners to deposit the decretal amount, which shall be assessed by the executing Court in due course according to the prevailing market rate during the institution of the suit, in 12 equal instalments, prevailing over a time period not later than one year from the receipt of this judgment. In view of the reasons and observations, the instant writ petition is disposed of as such.