' This suit has been filed by the plaintiff against the two defendants for the recovery of Rs.1,18,933 "as the equivalent value price of the dowry and birdal gifts". The plaintiff has further prayed for grant of compensation @ 5% per month on the amount claimed. Plaintiff and defendant No. 1 were married on 7-6-1975 at Karachi with dower (deferred) being fixed at Rs.15,000. Defendant No. 2, a practising Advocate, is the father of defendant No.
1. Troubles started between the spouses within a few days of the marriage. It is averred by the plaintiff that ultimately she was turned out of the house of defendant No. 1 and all her dowry and bridal gifts were kept by the defendants. It is further averred by the plaintiff in para. 11 of the plaint as follows:-- "11. That the defendant No. 1, who is a B.A.,LL.B., and his father, who is a practising Advocate, after misappropriating all the dowry and bridal gifts of the plaintiff, started to involve the plaintiff and her old parents in all sorts of false and fabricated cases to extract more money from them and even resorted to force by trespassing on the house of the plaintiff's father and mishandling him for demand of one lakh rupees. The plaintiff and her old parents had to face 21 cases till now and many more to come as threatened by the defendants (Annexure 4)".
' It may be mentioned here that the marriage of the plaintiff with defendant No. 1 was dissolved by the Family Judge, Karachi, in a suit filed by the plaintiff for dissolution of marriage. Appeal filed by defendant No. 1 against the judgment of the Family Judge was dismissed.
' Paras. 12 and 13 of the plaint may also be reproduced here which read as follows:-- "12 That at the time of Rukhsati on 7-6-1975, the parents of the plaintiff gave dowry articles including gold and silver ornaments for the use and benefit of the plaintiff and the same were received by the defendants after thorough checking by the defendants who signed the list of articles as an acknowledg ment of receipt thereof (vide Annexure 5). The parents of the plaintiff also gave the girl at the time of Chawthee two costly dress and some other gifts which were all kept by the defendants, after Valeema."
"13 That the defendant No.1 gave eleven sets of clothes, one wrist-watch, a pair of chappals and one bottle of scented oil, one comb, and as admitted by the defendants in their various notices, suits and written statements, 21 tolas of gold ornaments to the plaintiff as a bridal gift (Charwaha)
(Annex. 7) which were all kept after Valima by the defendants."
' According to the plaintiff, the total cost of all the dowry and bridal gifts at the present rate comes to Rs.1,18,933. It is further averred that the defendants were using all dowry and bridal gifts and the plaintiff was entitled to recover compensation @ 5% per month.
' The plaintiff had filed the suit in forma pauperis. Her application to sue as a pauper was granted by order, dated 12-1-1981 of the Additional Registrar, and it was registered as a suit. The defendants filed an application under Rule 15 of the Original Side Rules of this Court to.set aside the order, dated 12-1-1981 of the Additional Registrar but the same was dismissed, by order, dated 19-4-1981 of a learned Single Judge of this Court. The defendants filed H.C.A. 66 of 1981 but that too was dismissed by order, dated 2-12-1981 of a Division Bench of this Court.
2. A joint written-statement was filed by the two defendants in which the various adverse allegations made by the plaintiff against the defendants were denied. It was averred that the articles of gifts which were given by the plaintiff's family to the plaintiff on the occasion of the wedding were not worth more than Rs.5,000 and the ornaments also appeared to be of imitation gold. It is alleged in the written-statement that the plaintiff had taken all the ornaments which had been given by the plaintiff's father to her, to the house of plaintiff's father, and she had also taken 14 tolas ornaments of real gold belonging to the wife of defendant No. 2 which had been entrusted to the plaintiff. According to the defendants, the articles which belong to the plaintiff and which remained in the house of defendant No. 1, were not worth more than Rs.1,000 and the same were also destroyed by flood water of Lyari river. It was pleaded that the suit was barred by time. By order, dated 31-5-1981 of this Court, the following issues, suggested by the learned counsel for the parties, were adopted:--
(1) Whether the suit is maintainable?
(2) Whether the suit is barred by limitation?
(3) Whether the plaintiff is entitled to recover the suit money as compensation of the dowry from the defendants?
(4) Whether the suit is bad for non-joinder and misjoinder of parties?
(5) What should the decree be?
3. On behalf of the plaintiff, the plaintiff herself appeared as P.W.1 (Exh.5) and her father Manzoor Ahmed Bukhari, appeared in the witness-box as P.W. 2 (Exh.6). On behalf of defendants, Mr. S. Sarwar Ali, defendant No. 2, was the only witness. Defendant No. 1, the main contesting defendant, did not appear in the witness-box. I have heard the arguments of Mr. A.K.M. Idris, learned counsel for the plaintiff, Mr. A. Majeed Khan, learned counsel for defendant No. 1, and Mr. S.S. Hamid, learned counsel for defendant No. 2.
4. I will take up Issue No. 4 first. The burden of proving this issue was on the defendants. No arguments were addressed either by Mr. A. Majeed Khan or by Mr. S.S. Hamid on behalf of the defendants on this issue. Even otherwise I do not see how the present suit is bad for non-joinder or misjoinder of parties. Issue No. 4 is accordingly decided in the negative.
5. Issue No. 1 is whether the suit is maintainable. On this issue also no arguments were addressed by the learned counsel for the defendants. The case of the plaintiff is that the defendants have detained the dowry and articles of gifts given to the plaintiff at the time of marriage and the present suit has been filed for the recovery of Rs.1,18,933 being the cost of the dowry and bridal gifts at the time of filing of the present suit. As observed earlier, no argument was made about the non- maintainability of the suit. Issue No. 1 is decided in the affirmative and I hold that the present suit is maintainable.
6. Issue No. 2 is about limitation. According to the learned counsel for the defendants, the applicable article of the First Schedule to the Limitation Act, 1908, is Article 36, whereas according to the learned counsel for the plaintiff, the applicable article is Article 49. Article 36 provides for a period of two years as the period of limitation and relates to suits for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not specially provided for in the Act. Article 49 on the other hand lays down the period of limitation as three years and this article is for suits filed for other specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same. Article 48 refers to specific movable property lost or acquired by theft or dishonest misappropriation or conversion. Then Articles 48-A and 48-B refer to certain other types of suits. In Article 49 the words "other specific movable property" have been used and by comparing the language of Article 49 and Articles 48, 48-A and 48-B it becomes apparent that Article 49 applies to a suit for recovery of specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same, which movable property is other than the specific movable property described in Articles 48, 48-A and 48-B.
' Mr. Abdul Majeed Khan, learned counsel for defendant No. 1, and Mr. S.S. Hamid, learned counsel for defendant No. 2, relied upon the following reported judgments in support of their contention that it is Article 36 of the First Schedule to the Limitation Act, which is applicable in the present suit:- -
(i) Bulakhidas Narsingdas Marwadi v. R.G. Shop AIR 1939 Nag.
177.
' In this case, pursuant to a contract of marriage between the plaintiff's daughter and the defendant's son, the plaintiff sent ornaments for the bride, which, according to the caste custom, were to be presented to her after marriage. The defendant broke the contract and the plaintiff filed a suit demanding back the value of the ornaments. It was held that from the time the defendant came into possession of the ornaments and the time they were presented to the bride by him his possession would be that of a bailee in trust for the plaintiff and hence lawful but the same would be wrongful subsequent to the demand by the plaintiff and the case was governed by Article 49 and not by Article 115 of the Limitation Act.
' This decision in fact supports the contention of the learned counsel for the plaintiff that it is Article 49 which is applicable and not Article 36.
(ii) Kripa Ram v. Kunwar Bahadur AIR 1932 All.
256.
' In this judgment there is a discussion on the scope of Articles 36, 48 and 49 of the Limitation Act. It was held that the plaintiff had no right to the possession of the property itself and as such neither Article 48 nor Article 49 was applicable and the applicable article is Article 36. While dealing with the Articles 48 and 49, it was observed that the difference between these two articles was that while Article 48 refers to cases where the property had been lost, acquired by theft or dishonest misappropriation or conversion, Article 49 applies to other cases of wrongfully taking, injuring or wrongfully detaining movable property. Dealing with Article 49, it was observed that the plaintiff's remedy in a case, to which Article 49 applies, is to sue for the recovery of the specific movable property or in the alternative for its compensation for wrongfully taking, injuring or wrongfully detaining the same and that in such case the period begins to run from the time when the property was wrongfully taken or injured or the possession became unlawful.
' While considering Article 36, it was observed in this judgment that this is a general article and it is applicable to suits for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and that it is a general article for suits for compensation for all acts and omissions amounting to torts, which are not provided for elsewhere.
' The decision in this case also does not help the defendants. As observed earlier, in this case the plaintiff was not entitled to possession of the property itself and as such it was held that neither Article 48 nor Article 49 applied and in the circumstances of the case it was held that Article 36 applied. In the present case, the plaintiff claims that the plaintiff was entitled to the possession of the bridal gifts and dowry and these were later on unlawfully misappropriated by the defendants.
(iii) Muhammadi Steamship Co. Ltd. v. Federation of Pakistan PLD 1959 Kar. 232 ' In this suit for damages for negligence of the shipping authority in issuing licence to the shipping company to take its ship to sea resulting in loss to the plaintiff shipping company, it was held that Article 36 was applicable and not Article 2, which provided for 90 days as the period of limitation.
This decision is not relevant to the point in issue.
(iv) N.-W.F.P. Government v. Muhammad Afzal Khan PLD 1959 Pesh. 34 ' On the facts of this case, it was held that the ingredients of Article 49 had no application. It was further held that on the facts of the case, the article applicable was Article 36. The facts of this case are clearly distinguishable.
(v) Mudvirapa Kulkarni v. Fakirapa Kenardi I L R 7 Bom. 427 ' In this case, on the complaint of the defendant that the plaintiff had committed theft of his grain, a Magistrate attached the grain pending enquiry into the complaint. Enquiry was held and the complaint was dismissed but the attachment was continued pending the decision of the civil Court. Defendant's civil suit to establish his title to the grain was rejected and the plaintiff recovered his grain but in a damaged condition. The plaintiff filed a suit for the damages for wrongful detention of his grain and its consequent deterioration in quality and value. It .was held that Article 36 of the Limitation Act applied. There is no discussion in the judgment of the Court in this case on the distinction between Article 36 and Article 49. Even otherwise, the facts are clearly distinguishable.
(vi) Manga Reddi v. Venkataraghava AIR 1936 Mad. 250 ' In this case there was a contract between the parties, whereby the defendant was to take water from the plaintiff's tank only to raise a second crop on his lands and any other use of the water was to be illegal. The defendant used water to wet his lands to facilitate the ploughing. The plaintiff brought a suit to recover damages for the unauthorized act of the defendant. It was held that Article 36 was applicable as the action was one in tort because the wrongful act complained of was the illegal use of the water, the defendant having no right to use the water without the consent of the landlord and he could do so tinder the contract only for the second crop. It was observed in this judgment that Articles 48 and 49 would obviously not apply. This judgment also does not help the learned counsel for the defendants in support of the argument that in the instant case Article 36 is applicable and not Article 49. In AIR 1936 Mad. 250, the suit was for recovery of damages for unauthorised use of water whereas in the instant case what is being claimed by the plaintiff is that the dowry and bridal gifts were unlawfully detained and then misappro priated. It may also be observed that in this judgment there is no discussion about the applicability or non-applicability of Article 49 except that it has been observed that Articles 48 and 49 "would obviously not apply."
(vii) Sivachidambara Mudaliar v. Kamatchi Ammal I L R 33 Mad. 71 In this judgment it was held that a claim in respect of unlawful cutting of the trees by the defendant was covered by Article 36 of the Limitation Act.
' Mr. A.K.M. Idris, learned counsel for the plaintiff, had also relied upon AIR 1939 Nag. 177, which authority had been cited by the learned counsel for the defendants. Learned counsel for the plaintiff also relied upon the case of Venkunaidu v. Appanna AIR 1951 Mad.
704. The judgment reported in AIR 1951 Mad. 704 is of no help, as there is no discussion as to whether Article 49 or some other article of the Limitation Act was applicable, as in this case both sides agreed and relied upon Article 49.
' Reference may also be made here to a Full Bench judgment of the Calcutta High Court in the case of Mangun Jha v. Dolhin Gulab Koer I L R Cal.
25. In this case, which was a suit for damages for cutting and carrying away crops, it was held that such suit does not come within the terms of Article 36 of the Limitation Act. The majority view was that Article 49 would apply.
' As observed earlier, the present suit had been filed by the plaintiff for the recovery of an amount, which, according to the plaintiff, is equivalent to the price of the dowry and bridal gifts. According to the plaintiff, such bridal gifts and dowry were unlawfully detained by the defendants and later on it was informed that on account of floods whatever articles, which belonged to the plaintiff, were destroyed. In my view, Article 49 of the First Schedule to Limitation Act, 1908, will be applicable and not Article 36. The judgment reported in AIR 1939 Nag. 177 is more or less on all fours with the present case in so far as the question of limitation is concerned. There also it was held that it was Article 49 which was applicable. The claim in the present suit is in relation to specific movable property and Article 49 is applicable to suits filed for specific movable property (not covered by Articles 48, 48-A and 48-B) or for compensation for wrongfully taking or injuring or wrongfully detaining the same. According to the plaintiff, her property had been wrongfully detained and then later on misappropriated. The suit had been filed for a specific amount of money, which according to the plaintiff, is equivalent to the value of her goods, which were detained and misappropriated by the defendants. As Article 49 is applicable, Article 36 will not be applicable. Article 36 might have applied if Article 49 was not there. Article 36 relates to suits for compensation for any malfeasance, misfeasance or nonfeasance independent of contract "and not herein specially provided for".
7. On the question of limitation it had also been argued by the learned counsel for the defendants that even if Article 49 of the First Schedule to the Limitation Act was applicable, which provides three years as the period of limitation, the present suit is barred. This suit (the application in forma pauperis) was presented by the plaintiff in this Court on 15-3-1980. According to the learned counsel for the defendants, the plaintiff had served a legal notice on the defendants on 6-10-1975 for the return of the dowry and bridal gifts and then the plaintiff filed a complaint on 21-11-1975 under the West Pakistan Dowery (Prohibition on Display) Act, 1967, for the recovery of the dowry and bridal gifts. It was contended that the period of limitation, during which the suit should have been filed, expired in 1978 and the present suit filed on 15-3-1980 is hopelessly time-barred. In reply to this contention, Mr. A.K.M. Idris, learned counsel for the plaintiff, relied upon the letter/notice, dated 2-7-1977 of the defendant No. 1 addressed to the plaintiff (Exhibit 5/2). This letter reads as follows:-- "My dear Ahmedi Begum, ' This is to inform you that as also published in Jang, dated 2-7-1977 and all other newspapers due to rains in Karachi on 30-6-1977 that evening the flood waters of Lyari River entered in Bihar Colony, Karachi-2 and my house therein also became full of flood silt laden waters and in no time its height became 4 to 5 feet inside the house and more than 6 feet on the roads. It all happened so suddenly and unexpectedly and not knowing to what height the flood water would rise, I and other persons to save our lives had to climb on the roof of the house, which is itself shelterless, and it continued raining. Under the terrible force of flood waters, all our clothings and other articles including those which were given to me at the time of our marriage by your father as gifts and which were except those already taken by you and in the company of your father or mother from 8-6-1975 onwards and finally on 3-8-1975 when you had promised to return in 4 or 5 days were greatly damaged, rendered unserviceable and smashed. I am very sorry for this loss due to Act of God Almighty and I am thankful to Him for saving my life. I had to pass whole night on shelterness roof fully drenched in torrential rains and winds.
' After marriage the wife's abode is the house of her husband as held by the Hon'ble High Court in PLD 1975 Kar.
118. (D.B.) You are, therefore, always welcome to come to my house and you can also see the damaged clothing and articles yourself.
' My salam to your parents."
' According to the learned counsel for the plaintiff, by this letter, dated 2-7-1977 (Exhibit 5/2), defendant No. 1 has admitted that the articles and clothings belonging to the plaintiff were with him and the same had been damaged in the rains. The contention of the learned counsel for the plaintiff has substance. The letter, dated 2-7-1977 amounts to an acknowledgement in writing in terms of section 19 of the Limitation Act. The cause of action had accrued to the plaintiff sometimes in 1975 and the period of three years provided under Article 49 of the Limitation Act had not expired when the letter, dated 2-7-1977 was written by the defendant No. 1 to the plaintiff and this letter, dated 2-7-1977 amounts to an acknowledgement in writing and a fresh period of limitation of three years is to be computed with effect from 3-7-1977. As noticed earlier, the present suit had been filed on 15-3-1980, within three years of the letter, dated 2-7-1977, as such the present suit was not barred as against defendant No.
1. -Defendant No. 2 has not made any acknowledgement in writing and as such the suit as against defendant No. 2 has become barred by limitation.
' It is, therefore, held that the suit is not barred by limitation as against defendant No. 1 but it is time- barred as against defendant No.
2. Issue No. 2 is decided accordingly.
8. Issue No. 3 is whether the plaintiff is entitled to recover the suit money as compensation for the dowry from the defendants. The plaintiff had filed the suit for the recovery of Rs.1,18,933. On a question from the Court, Mr. A.K.M. Idris, learned counsel for the plaintiff, stated that this figure represents the value of the dowry and bridal gifts as on the day of filing of the suit i.e. 15-3-1980. In her evidence (Exhibit 5) the plaintiff while being cross-examined stated as follows : -- " It is correct that I had stated before the Registrar of this Court on the date of my examination that the value of property claimed in suit was Rs.1,18,930 while in 1975 its value was Rs.40,000.
'In her suit for dissolution of marriage (Family Suit No.1411 of 1975) in para. 9 of the plaint also the plaintiff had stated that the value of the dowry, ornaments, clothes, etc. was Rs.40,000. In the circumstances, the plaintiff cannot make a claim in excess of Rs.40,000 in the present suit.
' List of the articles given in the dowry by the plaintiff's parents has been produced by the plaintiff as Exhibit 5/1. This list bears the signatures of both the defendants in acknowledgement-of having received the articles. Defendant No. 2 in his examination-in-chief (Exhibit 7) has himself stated that on the eve of the marriage a list of articles given by the father of the plaintiff as gift to the married couple had been prepared, and a copy of such list was given to defendant No. 2, on which his signatures had been obtained, and which list, with the signatures of defendant No. 2 had been produced in evidence by the plaintiff as Exhibit 5/1. He stated that although he signed Exhibit 5/1 but the articles mentioned in the list were not delivered to him but they were delivered to the married couple and that signature of defendant No. 1 had also been obtained by the father of the plaintiff on Exhibit 5/1. It has further been stated by defendant No. 1 in his evidence that Exhibit 5/1 had been interpolated and altered later on after signatures of defendants No. 1 and 2 and that these interpolations and alterations had been made later on unauthorizedly. Defendant No. 2 then states that the copy of Exhibit 5/1 (the list of dowry articles) which had been given.to him by plaintiff's father was given by defendant No. 2 with "salami" of Rs.500 to the plaintiff at the house of defendant No. 1 on the date of the wedding. I am not impressed by this statement that the copy of Exhibit 5/1 had been given by defendant No. 2 to the plaintiff. The plaintiff's father already had the original list with him with the signatures of both the defendants acknowledging receipt of the articles of dowry and as such there was no reason for defendant No. 2 to give copy of the list to the plaintiff. If any additions and alterations had been made in Exhibit 5/1 at a later date i.e. after the signatures of defendants had been made on Exhibit 5/1, such act could have been proved by producing the copy of Exhibit 5/1 which admittedly had been delivered by father of the plaintiff to defendant No.
2. Copy of Exhibit 5/1 which had been given to defendant No. 2 was not produced and instead the plea was taken that such copy had been given by defendant No. 2 to the plaintiff on the night of the wedding. It has not been established by the defendants that any additions and alterations had been made in Exhibit 5/1 at a later date unauthorizedly.
' The defendant No.2, father of defendant No. 1, in his evidence has stated that at the time of the marriage on 7-6-1975, defendant No. 1 (the husband) gave ornaments, clothes and other articles to the plaintiff of the total value of Rs.30,000. Apart from this there are the various articles mentioned in Exhibit 5/1 which were given by the plaintiff's parents to the plaintiff as dowry. Even if a very conservative estimate of the value of such articles is made, it will be much more than Rs.10,000. The value of the dowry and bridal gifts accordingly at the time of marriage, comes to more than Rs.40,000.
' I have already observed that the plaintiff cannot claim more than Rs.40,000 in the present suit.
' Defendant No. 2 has stated in his evidence that all the jewellery, ornaments and expensive articles had been taken away by the plaintiff to her parents' house. Against this is the evidence of the plaintiff and her father that she had been turned out of the house of defendant No. 1 with only the clothes she was wearing and that she had not taken away any ornaments, jewellery or articles to her parents' house. The main weakness of the defendants' case is the non-appearance of defendant E No. 1, the husband, in the witness-box. In his evidence, defendant No. 2 has stated that although defendant No. 1 has been working in Saudi Arabia he had come to Karachi on two occasions and on each occasion he stayed in Karachi for three to four weeks and that on the last occasion he came to Karachi in September, 1984. No application was made for examination of defendant No. 1 on commission. Admittedly defendant No. 1 had come to Karachi on two occasions.
An application could have been made to the Court for having his evidence recorded during the days he was in Karachi. However, no such request/application F was made. The only inference that can be drawn from the non-appearance of the defendant No. 1, the main defendant, in the witness-box, is that in case he had appeared in the witness-box and was allowed to be cross- examined, his evidence would have gone against the defendants. On the state of the evidence on record, with defendant No. 1 not stepping into the witness-box, the plaintiff's evidence that she had been turned out of the house of defendant No. 1 in the clothes she was wearing and that she was not allowed to take away any of her things, has been established. In the circumstances, the plaintiff is entitled to a decree in the sum of Rs.40,000 as against the defendant No.
1. It has already been held by me that the suit as against defendant No. 2 is barred by limitation.
9. Suit No. 12/81 is accordingly decreed in favour of the plaintiff and as against defendant No. 1 for Rs.40,000 with interest at the rate of 14 per cent per annum from the date of the filing of the suit till realization. The plaintiff shall also be entitled to costs as against defendant No. 1.
The suit is dismissed as against defendant No. 2 with no order as to costs.