' ATIR MAHMOOD, J.---Facts giving rise to the filing of this writ petition are that the petitioners filed a suit for recovery of dowry articles, maintenance allowance of petitioner No.1, medical expenses and expected marriage expenses of petitioner No.1 with the averments that petitioner No.2 Alia Shahnaz was married with respondent No.3 Gulzar Ahmed (the respondent) in the year 1980; that out of this wedlock, petitioner No.1 Rabia Gulzar was born on 28.02.1983; that the marriage, however, could not continue and ended in divorce; that petitioner No.1 remained in custody of petitioner No.2 who borne all her expenses including education, food, clothing etc.; that the respondent contracted second Marriage; that the demand of the petitioners for payment of maintenance allowance was refused by the respondent; that petitioner No.2 was given dowry articles valuing Rs.600,000/- and 10 tola gold ornaments at the time of her marriage which were lying with the respondent. The petitioners prayed that dowry articles or their alternate price be given to the petitioner; that petitioner No.1 be given past maintenance allowance @ Rs.3000/- for the period from 1983 to 1986; Rs. 5000/- for next eight years, @ Rs.8000/- till she attains age of 26 and future maintenance allowance a Rs.10,000/- per month. Petitioner No.2 also demanded for medical expenses of Rs.200,000/- and Rs.15,00,000/- for marriage of petitioner No.1.
2. The suit was hotly contested on the respondent by filing the written statement. Out of divergent pleadings of the parties, learned family court framed as many as six issues including that of relief.
The evidence led by the parties was recorded. Thereafter, after hearing both sides, learned family court partially decreed the suit of the petitioners in the terms that the petitioner No.1 was entitled to recover maintenance allowance @ Rs .7000/- per month for last three years before filing of the suit and for future maintenance allowance at the same rate till she is married with 20% increase per annum whereas the claim of petitioner No.2 for recovery of dowry articles was decreed to the extent of Rs.100,000/- vide judgment and decree dated 07.05.2011. Feeling aggrieved, both sides filed appeals which were disposed of by learned lower appellate court vide judgment and decree dated 26.10.2011 holding that petitioner No.1 is entitled to recover maintenance allowance Rs.7000/- per month from the date of institution of the suit till her marriage with an increase of 10% per annum, however, claim of petitioner No.2 for recovery of dowry articles was declined. Hence this writ petition.
3. Learned counsel for the petitioners inter alia contends that the respondent has a flourishing business in Muscat and earns handsome amount monthly; that he can easily pay the maintenance to petitioner No.1 as prayed for by her; that learned courts below have erred in law while relying upon income certificate of the respondent who owns side business as well but the same was concealed from the court; that the respondent being father of petitioner No.1 is under obligation to maintain her but he has not paid a single penny to her since her birth; that the respondent is trying to deceive the court by producing few photographs of petitioner No.1 with him and his daughters out of subsequent wife which were taken at two occasions when petitioner No.1 herself visited his house; that the respondent cannot be allowed to escape from his liability; that the health of petitioner No.1 is not good and she has been advised yarious operations; that she is under medical treatment and is using various medicines which are expensive but learned courts below have not taken into consideration this important aspect of the case; that the children of the respondent from subsequent wife were studying in English medium schools and were being provided all kinds of luxuries but petitioner No.1 was denied the same love, affection and protection of her father; that right of petitioner No.2 has been denied by learned lower appellate court, of her gold ornaments and dowry articles without any lawful justification; that the observation of learned lower appellate court that after 25 years of the marriage, petitioner No.2 is not entitled to recover dowry articles has no legal backing as petitioner No.2 was divorced just after three years of her marriage and the dowry articles since then are in use of the respondent and his second wife; that the learned courts below have failed to appreciate the evidence of the parties in its true perspective, therefore, this writ petition be allowed, the impugned judgments and decrees of learned courts below be set aside and the suit of the petitioners be allowed as prayed for. She has relied upon the cases reported as PLD 2002 Quetta 38, 2002 SCMR 701, 2008 SCMR 1584 and 1995 MLD 1149.
4. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and fully supported the impugned judgment and decree of learned lower appellate court.
5. Arguments heard. Record perused.
6. After hearing the parties, the questions to be determined by this Court are as to whether the petitioner No.1 is entitled to the decree for grant of maintenance at the rate, as prayed for in the suit and secondly as to whether the learned appellate court committed an error while dismissing the suit to the extent of petitioner No.2 by reversing the judgment and decree passed by the learned trial court. The emphasis of the learned counsel for the petitioners was that the petitioners proved their case beyond any doubt as the petitioner No.1 being the daughter of the respondent No.3 was legally entitled to claim her past as well as future maintenance allowance and the question of limitation does not obstruct the grant of maintenance from the date of birth of the petitioner No. 1 .
In order to substantiate the claim of maintenance, the petitioner No.1 herself appeared as PW-1 and while filing her affidavit as Exh. P.1, deposed that she was entitled to claim her maintenance from the respondent No.3 since her birth as she was brought up by her mother (the petitioner No.2). She claimed her maintenance from the year 1983 till the filing of the suit at different rates i.e mentioned in paragraph No.3 of the plaint. She also claimed medical expenditures of Rs.2,00,000/- and expected expenditures of her marriage as Rs.15 lacs. She deposed that the respondent No.3 is residing abroad at Masqat for the last 26 years and is earning handsome salary from an international company. In cross-examination, she stated that she did not know the reason of divorce as at that time she was two months of age; that she did not know that what is the education/qualification of her father. She stated that he is working in Masqat. When confronted then she stated that he may be residing in Saudi Arabia. She was unable to give the name of the company but stated that pay of the respondent No.3 is Rs.21/2/3 lacs. She stated that she has not seen the pay slip. She failed to give any description of expenditures being incurred upon her living.
She further admitted that she has not written the affidavit herself. The petitioner No.2 appeared as her own witness as PW-2. Though her affidavit is on record but that affidavit was never got exhibited when she appeared as her own witness. However, she was cross-examined (obviously treating the said affidavit as her examination-in-chief). She also did not state the expenditures incurred or being incurred upon the petitioner No.1. She was unable to answer the nature of job of the respondent No.3 and also unable to give the name of the company where he is working. She stated that the salary of the respondent No.3 would be Rs.3/31/2 lacs. She stated that he is employed in Masqat and earlier he was in Saudi Arabia however she denied the suggestion that the respondent No.3 earns Rs.30/35 thousand per month. PW-3 Zaheer-ud-Din Babar, while appearing as a witness deposed through his affidavit Exh. P-2 which is inline with the affidavits of the petitioners. During cross-examination, he admitted that the respondent No.3 is residing at Saudi Arabia and at the time of marriage he was working as a Foreman in Masqat. He admitted that the pay of the respondent No.3 was Rs.30/35 thousand per month; volunteered that it was the pay at that time. He also failed to narrate the expenditures of the petitioner No.1. In rebuttal, the respondent No.3 produced Asghar Ali as DW-1 as his special attorney who filed his affidavit as Exh.
D.1. He deposed that the petitioner No.1 is residing with her mother since her birth as the petitioner No.2 was divorced on 14.11.1983. He further deposed that the respondent No.3 has been maintaining Rabia Gulzar (petitioner No.1) regularly and for this reason there was no dispute between the parties. He deposed that the dispute arose when the respondent No.3 wanted to arrange the marriage of the petitioner No.1 in his family and there-after the present suit was filed malafidely.
During cross-examination, he stated that he is the real paternal uncle of Rabia Gulzar (petitioner No.1). He stated that the respondent No.3 used to pay the maintenance allowance regularly at different rates i.e. Rs.250, Rs.500/-, Rs.700/- and sometimes at the rate of Rs.1,000/- per head. He also stated that the fee of the school was also used to be paid by the respondent No.3. No suggestion was put to this witness that the respondent No.3 never paid any maintenance to the minors. DW-2 Muhammad Javed Bajwa, submitted his affidavit and special power of attorney as Exh. D.8 and deposed in line with the statement of the DW-1. During cross-examination, he admitted that the maintenance allowance was never paid in his presence. He admitted that the dispute has arisen due to the marriage of the petitioner No.2 with whom the marriage could be solemnized.
Muhammad Farooq, DW-3 supported the case of the respondent No.3 by filing his affidavit Exh. D.9 and in cross examination he stood firm to his stance.
7. Keeping the evidence of both the parties in juxta position, I have come to the conclusion that the petitioners did not establish the monthly expenditures incurred in'past or being incurred upon petitioner No.1 nor A they were able to establish the monthly income of the respondent. Although, the respondent No.3 did not produce any evidence to establish his income but according to his own version, established through the cross-examination conducted upon the witnesses of the petitioners. He is residing abroad i.e. Saudi Arabia for the last about 26 years, therefore, it cannot be imagined that he is only earning Rs. 25/35 thousand per month but at the same time, the petitioners themselves have asserted that he is spending huge amount on the education of his other children from his second wife. The learned appellate court has examined the evidence of both the parties and has upheld the findings of the learned trial court qua the quantum of maintenance allowance per month. As far as the grant of past maintenance is concerned, the evidence led by the petitioners is also not confidence inspiring. It has also been established through evidence of both the parties that the dispute/differences have arisen in between the parties on the question of marriage of petitioner No.1 as the respondent No.3 wanted to arrange the marriage of petitioner No.1 in his own family whereas the petitioners wanted to arrange the marriage of petitioner No.1 in accordance with their own wishes. The conduct of the petitioners in not filing the suit at any earlier stage also reflects that there was no such dispute between the parties as the petitioner No.2 never opted to claim the maintenance of petitioner No.1 through filing of any legal proceedings, therefore, I am in conformity with the judgment of the learned appellate court qua the grant of maintenance allowance to the petitioner No.1 from the institution of the suit.
Furthermore, it has been held by the Hon'ble Supreme Court in a number of cases that the findings of the learned appellate court which are after due appraisal of evidence cannot be substituted by the findings of this Court. Reliance is placed upon the case reported as Farah Naz v. Judge Family Court, Sahiwal (PLD 2006 Supreme Court 457).
8. Now comes the question regarding the dismissal of the suit to the extent of dowry articles claimed by the petitioner No.2. It is an admitted fact that the divorce between the petitioner No.2 and respondent No.3 took place on 14.11.1983 whereas the suit was filed on 01.10.2009 in the year, 2009 after elapse of 26 years. While filing the suit, the petitioner No.2 claimed that she was treated with cruelty and mental torture and then she was turned out of the house by the respondent. In paragraph No.6 of the plaint, the petitioner No.2 asserted that she was given dowry articles worth Rs.6,00,000/- along with gold ornaments weighing 10 tolas valuing Rs.3,00,000/- and that despite long repeated demands the dowry articles have not been returned. She did not assert that when for the first time, she demanded the return of dowry articles nor she stated that when the respondent refused to return the dowry articles.
9. The respondent No.3 while filing the written statement contradicted the claim of the petitioner No.2 by submitting in his written statement that the entire dowry articles/all disputes were settled by the parties at the time of dissolution of marriage and a specific objection was raised that the suit filed by the petitioners is barred by time. I am of the opinion that the possession of the dowry articles becomes wrongful with the husband when divorce took place or when there is specific demand for return of dowry articles which is refused by the husband. Admittedly, the petitioner No.2 neither asserted any specific date for first denial of the respondent to return the dowry articles nor she could produce any evidence to substantiate her claim that the dowry articles are still lying in possession of the respondent No.3. According to Article 49 of the Limitation Act, a suit for recovery of specific moveable property could be filed within three years when the property is wrongfully taken or injured, or when the retainer's possession becomes unlawful. There is no other Article in the Limitation Act which deals with the suit for recovery of dowry articles. I am in conformity with the judgment and decree of the learned appellate court as the delay in filing the suit for recovery of dowry articles gives rise to a presumption of fact that the dowry articles were taken back by the petitioner No.2 after her dissolution of marriage with the respondent No.3.
Though the learned appellate court has dismissed the suit on merits after appraisal of evidence but in my view the suit was also liable to be dismissed to that extent being barred by time as well.
10. Another objection has been raised by the learned counsel for the petitioners that the written statement was not signed by the respondent No.3 himself has no evidentiary value and cannot be termed as a written statement filed by the respondent himself. Admittedly, Asghar Ali is the special attorney of the respondent and this petition has also been filed against the respondent No.3 through the said attorney. This objection was never raised before the trial court nor it was raised before the appellate court, therefore, this issue cannot be raised at this point.
11. During the pendency of this writ petition, the petitioner vide C.M. No.1/2013 placed on record additional documents which includes list of dowry articles, certain receipts of purchase of the same and certain photographs. Further, a nikah nama of marriage of petitioner No.1 with one Muhammad Naseer registered on 18.08.2012 showing the date of nikah as 17.08.2012 has been placed on record. None of the documents were produced before the learned trial court as all are subsequent to the decision of the suit.
12. On the other hand, the respondent while filing C.M. No. 163/2014 disputed the date of nikah of the petitioner No.1 with Muhammad Naseer and produced a "Marriage Registration Certificate" showing the date of nikah as 02.09.2011. ##TSAt this stage, while exercising the constitutional jurisdiction, this Court cannot indulge into the factual controversy and the learned executing court is competent to determine the date, upto which the petitioner No.1 is entitled to receive the maintenance allowance from the respondent.
13. As remains the claim of the petitioner No.1 regarding the expenditures of her marriage, she may, if so advised, can agitate the matter before the competent court afresh which can only be decided after recording of evidence of the parties, in accordance with law.
14. In view of the above discussion, this writ petition being devoid H of any force is hereby dismissed.