1. ' Muhammad Saleem appellant and Mst. Mehbooba Begum respondent are the spouses and Muhammad Sher appellant is the father of the former who stood surety for the payment of the dower at the time the marriage was solemnised between the said spouses. A suit for recovery of prompt dower was filed by the wife which was dismissed by the trial Court for being time-barred, vide its order dated 18-7-1981, though the amount of dower treating the same as exigible amounting to Rs, 1,000 was found payable to her. On appeal to the Additional District Judge, Rawalakote the suit was held within time in view of the plaint of the plaintiff-respondent that demand for the prompt dower was kept continued till on 20-4-1979 it was finally refused to bepaid.
2. ' The counsel for the appellants and attorney for the woman respondent were heard.
3. ' On perusal of the file it was found in the statement of the woman which she gave as a witness before the Court that she made a demand for the prompt dower at the time she was made to quit the house of her husband by the latter i. e. Her husband, which was refused to be paid. He further demand to which evasion on the part of the husband as contained in the plaint was disclosed by her as a witness. The residing of the woman with the husband according to her ceased in the month of December, 1975 when demand for payment of dower was refused to her. No further demand after December, 1975 was ever made by the woman as was alleged in the plaint to which a promise by putting off the payment {{URDU TEXT}}(L) oAA9 ) could have been made by the husband. Mere assertion in respect of demand and refusal to payment at a certain time on such a promise and its defiance thereon, to bring the suit within limitation in the plaint is not enough unless supported by some evidence, vide statements of the plaintiff and her attorney who is also her grandfather which determine the time of demand and refusal thereat.
4. ' Under Article 103 of the Limitation Act, the starting point of limitation would be from the time, a demand for payment was made and a refusal was met thereto. According to the every evidence of the plaintiff herself refusal for payment of the prompt dower was made to her at the time she was deprived of her residence with the husband in December, 1975. The suit was instituted in the year, 1979. Obviously it was filed beyond a period of three years prescribed by law.
5. ' That being so, the trial Court was right in dismissing the suit for being time-barred. It was tried here before this Court that the spouses may come to reconciliation but in vain. Prompt dower is morally the liability of the husband to pay it to the woman, even though time-barred. Under the pretext of limitation he is not advised to stop payment of the prompt dower payable to the wife.
6. She was found prepared to go to the house of her husband is case amount of dower is paid to her, but the husband and the surety are not going to pay the same unless she first moves to their house. On the Holy Qur'an, the woman desired to settle the dispute of non-living, in case, in view of the oath taken by the woman the matter is settled which oath she took at the offer made to her by Muhammad Sher Khan appellant, bur unfortunately no reconciliation could be arrived at. This Court cannot go beyond the subject-matter of the dispute circumscribed by law in the instant appeal and in view of the law of limitation I am constrained to hold that the suit of the plaintiff- respondent was barred by limitation and as such the impugned judgment and decree of the lower appellate Court are hereby set aside and that of the Sub-Judge, Bagh are restored hereby.
7. Appeal accepted.
8. P D 1983 Azad J & K 15 Before Sardar Muhammad Sharif Khan, C J REHAM ALI-Petitioner versus Mst. ZAINIB BI-Respondent Civil Revision No, 69 of 1982, decided on 11th January, 1983.
9. Civil Procedure Code (V of 1908)- -- 0. XXII, r. 3-Order on application of person (not yet brought on record as legal representative of party)-Competency of-During hearing of revision petition by High Court non-disposal of application (for bringing legal heirs of plaintiff on record) coming to light-High. Court ordering reconsideration (by trial Court on merits) of application for impleading Z (respondent) as plaintiff Held, in circumstance, Z not attained status of party in suit and orders on application of such person could not be passed by trial Court.
10. [p. 1614, /3 C Muhammad Masud Khan for Petitioner. Muhammad Hussain Khan for Respondent.
11. Date of institution : 26th October, 1982,
12. ' A declaratory suit with consequential relief for possession of the suit land was brought by a person Hussain Khan by name, in the Court of Sub-Judge, Haveli at Hajira against the petitioner- defendant.
13. ' Hussain Khan plaintiff died during the pendency of the suit. His counsel filed an application for bringing his legal heirs on record.
14. ' The act of impleading legal heirs including Mst. Zainib Bi respondent as a widow was deemed performed by the trial Court, vide its order dated 30-8-1978. A revision petition against an order was made by the defendant during hearing of which it came to the notice of the learned Judge in the High Court that as a matter of fact no order of impleading Mst. Zainib Bi as a party by substitution was ordered by the trial Court. It was just assumed wrongly by order dated 30.8-1978 referred to above and so the learned Judge suo motu in the interest of justice in exercise of his revisional powers set aside the presumed order of impleading Mst. Zainib Bi as a B plaintiff and it was as such deemed necessary that application filed by the counsel of Hussain Khan deceased for impleading Mst. Zainib Bi as a plaintiff by substitution, should be re-considered by the trial Court on merits after hearing the parties, vide order dated 31-7-1982 passed by the learned Judge in the High Court. The impugned order dated 18-3-1982 was passed by the Sub-Judge despite the fact that a revision petition was pending within his knowledge before the High Court which resulted in an order pointed out above and a re-consideration of the substitution was ordered thereto and by which the impugned orders were adversely affected. The learned Judge in the High Court also indicated to the trial Court to frame further issues in the light of the objections raised by the defendant but he failed to pay any heed to this aspect of the case. The Sub-Judge, will do well to act further in accordance with law, if he goes through the order dated 31-7-1982 passed by this Court. From this order, it is evident that Mst. Zainib Bi has not attained the status of a party in the suit so far.
15. That being so, the impugned orders on applications of a person who has not yet been able to have the status of a plaintiff by substitution in place of Hussain Khan, deceased could not be passed by the trial Court. No applications thus for appointment of receiver or for attachment of property could not be considered by. The Sub-Judge in the circumstances of the case. The land in suit is in possession of the defendant over which some constructions were also raised by him and he had obtained the possession from Kaka one of the defendants who is also one of the legal heirs of Hussain Khan deceased according to the very version of Mst. Zainib Bi respondent and for that possession, he has a decree of the Court of District Judge in his favour. Till then, if the decree goes off, the possession of the defendant may be bona fide. In these circumstances the Sub-Judge was wrong to make appointment of a receiver of the property in suit or to attach the same on applications moved on behalf of Mst. Zainib Bi respondent.
16. ' The revision petition is accepted and the impugned orders. Of attachment of the property in suit and of its receiver are hereby set aside. The possession, if taken over from the defendant-petitioner it shall be restored to him immediately so to avoid further disputes.
17. Revision .