' RAJA SAEED AKRAM KHAN, J. --- This appeal by leave of the Court has been directed against the judgment and decree of the Shariat Court dated 17.09.2011, whereby the appeals filed by the appellant were dismissed.
2. The facts in brief are that the appellant and respondent filed separate applications for guardianship of minor, Sawara Gillani before the Guardian Judge, Muzaffarabad. The respondent also filed a suit against the appellant for recovery of dower worth Rs, 2,00,000/- in the Court of Judge Family Court, Muzaffarabad. The Trial Court consolidated above-mentioned applications and the suit and after necessary proceedings accepted the application for guardianship as well as the suit for recovery of dower filed by the respondent, whereas, the application filed by the appellant, herein was dismissed, on 29.04.2010. Feeling aggrieved from the judgment and decree of the Trial Court the appellant, herein, filed separate appeals before the Shariat Court. The learned Shariat Court consolidated both the appeals and vide impugned judgment dated 17.09.2011 dismissed the same. Hence, this appeal by leave of the Court.
3. Mr. Sadaqat Hussain Raja, Advocate, the learned counsel for the appellant argued that the judgments and decrees of the Courts below are based on misreading and non-reading of the evidence, therefore, the same are not sustainable in the eye of law. He further argued that the Courts below have not properly appreciated the record while passing the impugned judgments. He contended that the respondent filed a suit for recovery of dower amount to the tune of Rs, 2,00,000/- after a delay of 4 years after the death of her husband, i,e,, son of the appellant, but this important aspect of the case has been overlooked by the Trial Court as well as the Shariat Court while passing the impugned judgments. He submitted that the son of the appellant was died during the earthquake on 08.10.2005, whereas the suit was filed on 07.12.2009 which was hopelessly time-barred and hit by Article 103 of the Limitation Act, 1908, but both the Courts below have not taken into account this important legal point. He submitted that the learned Shariat Court has also not adhered to the merits of the case and no plausible reasons have been assigned for dismissing the appeals. He contended that before the Trial Court the appellant has taken a specific stand that he has not signed on the Nikah Nama as surety, therefore, there was no obligation on him to pay the dower amount, but no findings have been recorded by the Courts below in this regard. In his way, an injustice has been caused to the appellant. He contended that the appellant filed two separate appeals before the Shariat Court with independent claims and remedies, but the learned Shariat Court decided the same in a consolidated judgment which were required to be decided through separate judgments, therefore, the impugned judgment before this Court is nullity in the eye of law. He further contended that the learned Shariat Court also failed to determine the financial condition of the appellant who is jobless, old person and has no source of income, hence cannot pay the dower amount. Likewise the welfare of the minor which is basic question for determining the guardianship rests with the appellant, but the learned Shariat Court has not decided this issue in a legal manner.
4. On the other hand, Mr. Farooq Hussain Kashmiri, Advocate, the learned counsel for the respondent has strongly controverted the arguments advanced by the learned counsel for the appellant. While raising the preliminary objection, he contended that the appeal has incompetently been filed as only the judgment has been challenged and not the decree, therefore, the appeal is hit by Order XIII, Rule 4 of the Supreme Court Rules, 1978, which is liable to be dismissed on the sole ground. He contended that the provisions of Section 9 of the Azad Jammu and Kashmir Shariat Court Act, 1993, which provides the appeal to the Supreme Court, has not been complied with. He further contended that appeal before this Court is only competent if the Supreme Court being satisfied that the case involves substantial question of law of public importance.
5. While arguing on the merits of the case, the learned counsel for the respondents submitted that the judgment of the Shariat Court is perfect and legal and has been passed after due application of judicial mind, therefore, no interference is warranted by this Court. He submitted that the dower is a debt which is payable, even after the death of the husband it will be paid from his inherited property. He submitted that after the death of the husband of the respondent in earthquake, 2005, she is looking after her minor female child and bearing all her expenses. He contended that under Islamic Law it is duty of the grandfather to maintain her granddaughter. He further contended that even the death claim of the deceased and compensation of the earthquake effectees was also received by the appellant. He argued that the appellant himself signed the Nlkah Nama as a guarantor of the dower amount, therefore, he cannot be allowed to escape from his commitment and he is under obligation to pay the remaining dower amount to the respondent. He submitted that there are concurrent findings of both the Courts below which cannot be interfered with without pointing out non-reading and misreading of the evidence. The respondent has proved her claim by adducing un-rebutted evidence. All the witnesses remained consistent on the material points and there is no contradiction in their statements. In absence of that, the evidence cannot be discarded which is otherwise independent in nature.
6. The learned counsel for the appellant while replying the argument advanced by the learned counsel for the respondent regarding the maintainability of appeal has stated that under Order XIII, Rule 4 of the Supreme Court Rules, 1978, the decree is not mandatory requirement for filing appeal, therefore, the argument of the learned counsel for the respondent has no force. He drawn the attention of this Court towards Section 14(5) of the Family Courts Act while arguing that the appeal to the Supreme Court from the judgment, decree or order of the Shariat Court is provided, meaning thereby that three independent terminologies have been used. According to the statutory provision of the Family Courts Act the appeal is competent against the judgment, decree or the order, thus, it cannot be said that as the decree was not challenged, therefore, the appeal is incompetent.
7. We have heard the arguments of the learned counsel for the parties and gone through the record alongwith the impugned judgment. From the perusal of the record it appears that both the contestant parties filed applications for guardianship of minor child in the Court of Guardian Judge, whereas, the respondent also filed a suit for recovery of dower in the Court of Judge Family Court, Muzaffarabad. The Trial Court consolidated the applications as well as the suit for recovery of dower and after necessary proceedings accepted the suit alongwith the application filed by the respondent for guardianship of minor, whereas dismissed the application fled by the appellant through consolidated judgment dated 29.04.2010. The appellant, herein, challenged the said judgment before the Shariat Court through separate appeals which were also dismissed vide impugned judgment dated 17.09.2011.
8. First of all we would like to resolve the preliminary objection raised by the learned counsel for the respondent that the appeal is incompetent as only the judgment has been challenged, whereas the decree has not been challenged. To regulate the procedure, for filing appeal the Supreme Court of Azad Jammu and Kashmir under the Constitutional provision has framed the rules, i,e,, Azad Jammu and Kashmir Supreme Court Rules, 1978, which provides regulations. While meeting the proposition this Court in the case reported as Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others [2000 SCR 70] held as under:--- " .......... (1) The petitioner shall lodge at least four copies of:--
(i) his petition for special leave to appeal; (ii)the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under Section 42 (11) of the Constitution, if any, one copy each of which shall be certified to be correct; (iii)the affidavit, in support of allegations of fact prescribed by rule 4 of Order XVII hereinafter contained; and (iv)unless a caveat as prescribed by rule 2 of Order XVII, has been lodged by the other party who appeared in the Court below, an affidavit of service of notice of the intended petition upon such party.
' Clause (ii) reproduced above lays down clearly that certified copies of three documents have to be attached with the petition for leave to appeal which are:
(i) judgment and order sought to be appealed from; (ii)grounds of 'appeal' or 'application' before the High Court; and (iii)order of the High Court refusing grant of certificate, if any.
' After going through the above-said case-law, enunciated by this Court, we are of the view that the copy of the decree sheet is not requirement for filing the appeal before this Court.
9. While attending the merits of the case we have perused the record minutely. The stance taken by the appellant that he did not sign the Nikah Nama as surety, therefore, to verify the position we have examined the original Nikah Nama which is available on the record. In column 5 of the Nikah Nama the name of the appellant is mentioned as surety of dower amount and his signature is also available. Nothing has come on the record in rebuttal that he has not signed the Nikah Nama. As no application from the appellant side was moved before the Trial Court for verification of the signature of the appellant through handwriting expert, therefore, in absence of that, it can easily be believed that the signature is of the appellant. Moreover, the stance taken by the appellant that at the time of Nikah he was not present as he was not agreed to fix the dower amount as Rs, 2,00,000, therefore, he left the place where the Nikah was solemnized. In support of his version he produced the witnesses namely, Syed Zia-ud-Din Gillani, Syed Tanveer Hussain Gillani, Syed Nisar Gillani and he himself appeared before the Court as a witness. It will be advantageous to reproduce the relevant portions of the statements of all the witnesses.
' Zia-ud-Din, witness stated in his statement that:-- {{URDU TEXT}} ' In cross-examination this witness stated as under:-- {{URDU TEXT}} ' The other witness, namely, Syed Tanveer Hussain Gillani stated as under:-- {{URDU TEXT}} ' The witness, namely, Syed Nisar Gillani stated as under:--- {{URDU TEXT}} ' After going through the above-said statements it appears that contradictory stand has been taken by the witnesses. On one hand, they stated that at the time of Nikah, the appellant was not present, whereas at the same time they stated that they cannot said with certainty that he was present at the time of Nikah or not. Moreover, the contents of the Nikah Nama also reveal that the appellant signed, on the Nikah Nama as surety of the dower amount, therefore, the stance taken by the appellant that he has not signed the Nikah Nama as surety of the dower amount, seems to be an afterthought one. Admittedly, out of Rs: 2,00,000/- only Rs, 31,000/- thousand have been paid to the respondent at the time of Nikah, whereas Rs, 1,69,000/- is still payable and the appellant cannot escape from the liability according to the commitment made by him at the time of Nikah. Both the Courts below have-appreciated the record in a legal manner and rightly came to the conclusion that the respondent has succeeded to prove that dower amount was fixed as Rs, 2,00,000/- which was partly paid to her at the time of Nikah and remaining Rs, 1,69,000/- is still payable.
10. The learned Shariat Court while deciding the appeal has rightly examined the statements of the witnesses produced by the appellant. All the evidence produced by the appellant was scanned in a legal manner and the learned counsel for the appellant failed to point out any misreading or non-reading of the evidence. In such-like situation, this Court is always reluctant to interfere with the concurrent findings recorded by the Courts below. Reliance can be placed on a case reported as Mst. Sharifa Begum & 4 others v. Ali Afsar Khan [2006 SCR '19], wherein, it has been observed that:--- "8. This Court seldom interferes in the concurrently concluded findings of the Courts below if no misreading or non-reading of any documentary or oral evidence having bearing on the facts of case is brought in the notice of the Court. As this case lacks such proof, therefore, this appeal in view of above, having no merit, is hereby dismissed with costs."
' In the light of above discussion, this appeal stands dismissed having no force. No order as to costs.