SHAHID BILAL HASSAN-J: Succinctly, on 13.01.2016, the respondent No.1 alongwith her minor daughter respondent No.2 brought a suit seeking a decree for maintenance allowance as well as dower Rs.50,000/- and ten (10) tolas gold ornaments valuing Rs.500,000/-, against the present petitioners, contending therein that respondent No.1/plaintiff married with father of the petitioners on 03.08.2001 and dower was fixed at Rs.50,000/- (prompt) and ten tolas gold ornaments which remained unpaid; that the respondent No.2 was born out of the said wedlock and was living with the respondent No.1; that Manzar Abbas, father of the petitioners and husband of the respondent No.1 died on 07.03.2010. The respondents No.1 and 2 claimed decree for maintenance allowance at the rate of Rs.10,000/- per month w.e.f. March 2010 to January 2016 (total Rs.1,400,000/- and dower of respondent No.1 i.e. Rs.50,000/- cash and ten tolas gold ornaments apart from future maintenance at the rate of Rs.12,000/- per month per head.
The suit was contested by the present petitioners who while submitting written statement controverted averments of the plaint and prayed for dismissal of the suit.
Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded.
On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 15.09.2018 partially decreed suit of the respondents No.1 and 2, entitling the respondent No.1 to recover dower amount of Rs.50,000/- and 10-tolas gold ornaments, whereas claim of maintenance allowance was refused.
The petitioners being aggrieved of the said judgment and decree preferred an appeal. The learned appellate Court dismissed the appeal vide impugned judgment and decree dated 04.07.2019; hence, the instant constitutional petition has been filed by the petitioners challenging the vires of the impugned judgments and decrees.
2. Heard.
3. On presentation of a plaint before a Court, it is first and foremost as well as bounden duty of such Court to see whether the suit is maintainable, not barred under any law and whether the Court has jurisdiction to adjudicate upon the matter or lis before it. In the present case, it has been noticed that the father of the petitioners and respondent No.2 as well as husband of the respondent No.1 breathed his last on 07.03.2010 and there is no dispute between the parties over the said date rather the same is an admitted fact, whereas the respondents No.1 and 2 brought the suit under discussion on 13.01.2016, which means the same has been instituted after nearly about six years of death of Manzar Abbas Bukhari, husband of the respondent No.1 and father of the petitioners as well as respondent No.2. Articles 103 & 104 of the Limitation Act, 1908 relate to the limitation provided under law for filing such suit, which stipulates:-
103. By a Muslim Three yearsWhen the dower is for exigible dower demanded and (mu'ajjal) refused or (where, during the continuance of the marriage no such demand has been made, when the Three yearsMarriage is dissolved by death or divorce.
104. By a Muslim Three yearsWhen the marriage for deferred dower Is dissolved by (mu'wajjal) death or divorce.
When the above said Articles are read with contents of the plaint, it becomes diaphanous that the suit of the respondents No.1 and 2 was blatantly barred by limitation but this aspect of the case has wrongly been adjudicated upon by the learned appellate Court and by referring first part of the above said Article 103, the learned appellate Court concluded that the suit was within time when during life of the deceased no demand and refusal took place but skipped and left the second part of the said Article, which enunciates that 'when marriage is dissolved by death or divorce', even then the limitation for filing such suit would be 'three years' and Article 104 ibid. As such, the findings recorded by the learned appellate Court on the point of limitation are not sustainable in view of the above discussion and provision of law, therefore, the same are reversed and it is held at the costs of repetition that the suit of the respondent No.1 for recovery of dower i.e. Rs.50,000/- and ten tolas gold ornaments was barred by limitation and was liable to be dismissed on this score. In this reliance is placed on Syed Muhammad v. Mst. Zeenat and others (PLD 2001 Supreme Court 128), wherein it has been held that:- 'According to Article 103 of Limitation Act all suits for the decree of prompt dower can be instituted within three years from its demand whereas time prescribed for the suit of deferred dower is three years under Article 104 of the Limitation Act.
4. It is a settled principle of law that when a Court reaches to the conclusion that the suit is barred by limitation, there is no need to dilate upon further on merits of the case; however, keeping in view the sensitivity of the matter in hand it seems appropriate that merits of the case be also dilated upon. We proceed with the contents of the Nikahnama, which has been brought on record as Ex.P4 and relevant part of the matter in issue is column No.17, which reads:- The above wording, shown and written in present form, clearly divulges that the said ten tolas gold ornaments were well available at the time of Nikah between the respondent No.1 and deceased Syed Manzar Hussain and were handed over to the respondent No.1. Moreover, at the time of marriage of the respondent No.1 with the deceased Syed Manzar Hussain, the present petitioners, as they were minors, were nurtured and nourished by the respondent No.1 beside their father, meaning thereby the respondent No.1 was having control over them as mother (though step) and after death of Syed Manzar Hussain, the respondent No.1 was employed under section 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, whereas she has also been receiving share of pension for herself and for her daughter/respondent No.2. Moreover, it has come on record that the property left by Manzar Hussain devolved upon his legal heirs as per their shares. The silence of the respondent No.1 for a considerable period of six years after death of deceased for not demanding any claim of dower despite the fact that the legacy of the deceased devolved upon his legal heirs also casts aspersion about her claim. Had the deceased not paid her dower during his life time, she would not have been quiet at the time of devolution of his legacy upon his legal heirs as well as at the time of execution of inheritance mutation, etc. All this shows that the deceased had already paid dower to the respondent No.1 in his life time that is why the respondent No.1 remained silent and later on due to certain incidents in between the parties, the respondents No.1 and 2 instituted the suit, that too, after expiry of period of limitation provided under the law.
5. In addition of the above, the dower money is a debt payable to a wife and she is within her legal right to even press for its payment. Even in those cases where claim for recovery of debts gets barred under the law, the only consequence which follows is that the aid of the Courts cannot be invoked for its recovery but the debt itself does not become extinct so that it may be available for purposes of adjustment out of Court and can even be paid with the consent of the parties as has been held in Muhammad Mumtaz v. Mst. Parveen Akhtar (1985 CLC 415), but here in this case, the respondent No.1 has miserably failed to prove that the deceased Manzar Hussain did not pay the dower, as settled at the time of Nikah, to her, therefore, there does not arise any question of debt upon the estate of the deceased.
6. For the foregoing discussion and reasons, it is held that the learned Courts below have failed to construe law on the subject and without applying judicious mind proceeded to pass the impugned judgments and decrees, which are not sustainable in the eye of law. The learned Courts below have failed to exercise vested jurisdiction as per mandate of law; therefore, the constitutional petition in hand is allowed, impugned judgments and decrees are set aside, consequent whereof the suit instituted by the respondents No.1 and 2 being barred by limitation as well as on merits stands dismissed. No order as to the costs.