1. ' The respondent filed a suit for recovery of prompt dower of Rs.8,000. The parties were married on 30th July, 1956 according to Hanfi Law, but it seems that their relations remained strained from the very beginning and ultimately the appellant divorced her on 29-12-1960. The respondent served a notice dated 8th August, 1963 demanding the payment of Rs.8,000 which was replied by the appellant on 22-9-1963. The respondent, therefore, filed the suit on 28-12-1963. The appellant was declared ex parte but he was allowed to file written statement. Therefore, he again failed to file written statement and was again declared ex parte and suit was decreed on 14-12-1965. The appellant then filed an application under Order IX, rule 13, C.P.C. which was granted on 1-2-1967. In the written statement filed by the appellant, he pleaded that after marriage the dower was paid in the form of ornaments and the respondent's demand was not proper. The matter was fixed for evidence on 30th August, 1966 but the appellant remained absent. After recording the respondent's statement suit was decreed. The appellant again filed an application under Order IX, rule 13, C.P.C. and the decree was set aside on 9-8-1969. The appellant was examined, and therefore the trial Court decreed the suit on 22-9-1969. The appellant filed appeal which was dismissed. Mr. Khalilur Rehman the learned counsel for the appellant has contended that the suit was barred by time, and therefore, the decree passed by the Courts below was illegal. The learned counsel has referred to a letter of the Advocate for the respondent, dated 13-9-1956 (Exh. D-1) whereby the respondent has claimed prompt dower of Rs.8,000. This letter was replied by Exh. D-2, dated 28th September, 1956 in which the appellant complained about the behaviour of the respondent as a wife, repudiated the claim for maintenance of Rs.1,200 and strangely enough he did not say anything about the dower. In fact no refusal to pay dower was made in this letter. The learned counsel referring to these two letters contended that as demand had been made as far as back as on 13th September, 1956 and was refused on 28th September, 1956. The suit was barred by time as it was filed after three years of the demand and refusal.
2. ' In this regard reference may be made to Article 103 of the Limitation Act which reads as follows:
103. By a Muhammadan for Three years When the dower is exigible dower (Mujjal) demanded and refused or (where during the continuance of the marriage no such demand has been made) when the marriage is dissolved by death or divorce.
3. ' The period of three years should be calculated from the date when the demand was made and refused or if no such demand was made from the date of death or divorce. The suit from the date of divorce is within time. However, the learned counsel for the appellant relying on the aforestated two notices has pressed the bar of limitation. Article 103 provides twin conditions for the purpose of calculating the period of limitation. These conditions are (1) that the demand has been made and
(2) that the husband has refused to pay the dower. Mere demand without any refusal by the husband will not attract Article 103. Similarly if no demand has been made and the husband refuses to pay, it will not amount to a case of demand and refusal both. The requirement of law is to make a demand which should be refused by the husband. Unless these two conditions have been fulfilled the period of limitation will not start running. Reference can be made to Ran'
4. Khajoorunnisa v. Rani Raeesunnisa (1875) 24 WR 103 P C. Under Article 103 time does not run unless there has been a demand by the wife and a clear and unambiguous refusal by the husband. In the present case two notices relied upon by the learned counsel for the appellant establish that a demand was made by the respondent but no clear and specific refusal was made by the appellant. The entire letter of 28th September, 1956 is silent about the claim of dower. The respondent was not cross-examined and her statement with regard to the demand and refusal by the appellant has remained unchallenged. Even the appellant in his statement did not say that when the demand was made by notice, dated 13-9-1956 he refused to pay. He merely stated that he replied the notice by Exh.D-2. This reply does not amount to a refusal to pay. The plea of limitation is based on letter, dated 28-9-1956 which cannot be construed as a refusal.
5. ' Mr. Khalilur Rehman then contended that while the matter was pending before the learned 1st Appellate Court the appellant filed an application under Order XLI, rule 27, C.P.C. for producing certified copy of the respondent's application under Order VI, rule 17, C.P.C. filed in Suit No. 812/59 which was instituted by the appellant for the restitution of conjugal rights. The respondent has made this application for amendment of the written statement in which the following amendment was sought: "For existing entries please read "That the defendant has already demanded her prompt dower in the sum of Rs.8,000 which the plaintiff has failed to pay and the defendant is claiming for the recovery of the said amount of Rs.8,000 (Rupees eight thousand) only and for the dissolution of her marriage with the plaintiff. That the suit is liable to be dismissed for non-payment of dower."
6. ' The learned counsel for the appellant has contended that this application was not disposed of by the First Appellate Court and without considering material evidence where non-payment of dower has been admitted by the respondent the Court has materially erred in deciding the appeal. The First Appellate Court has no doubt not decided this application, but it does not render the entire judgment illegal. A perusal of the averment sought to be brought on record by producing a certified copy of the application of the respondent would show that this additional evidence was neither necessary nor material for the purpose of determining the real controversy in the suit and deciding the appeal. The respondent in that application has only stated that the prompt dower was demanded, but the appellant had failed to pay. The respondent did not state that the appellant had refused to pay. In this context a distinction has to be made in the words "failed to pay" and "refused to pay". A person without refusing to pay may adopt tactics which may delay the payment or that he may not pay without clearly refusing to pay. Mere failure of appellant to pay the dower will not amount to "refusal to payer as required by Article 103. The refusal should be clear and unambiguous. Therefore, even this piece of evidence if taken into consideration would not have at all altered the decision of the appellate Court. In the result the appeal is dismissed with no order as to costs.