' SYED ABDUR REHMAN, J.--This H.CA. Is directed against the judgment of a learned Single Judge of this Court dated 30-5-1985, whereby he decreed the respondent's suit against the appellant No,1 for a sum of Rs,40,000 with interest @ 14% per annum from the date of filing of the suit till the realization.
2. The facts forming the background of this appeal are that the respondent was married to appellant No,1 on 7-6-1975 at Karachi. The dower was fixed at Rs,15,000. Appellant No,2 is father of Appellant No,1. He is a practising Advocate and has also appeared in this H.CA. As an Advocate for the appellants. On account of this agreement between the parties, few days after the marriage, the respondent was turned out of the house by the appellants. All her dowry and bridal gifts were retained by the appellants. The respondent filed a suit for dissolution of marriage. Accordingly the Family Court dissolved the marriage between the respondent and appellant No,1. The appellants did not return the dowry articles and bridal gifts to the respondents, in spite of demand and gave evasive reply. The total cost is estimated by the respondent at Rs,1,18,933. She had also claimed compensation at the rate of 5% per month for use of these articles. Consequently the respondent filed the suit in forma pauperis. The appellants contested the application, but without success and it was registered as a suit.
3. The appellants contested the suit by a joint written statement. They alleged that the articles of gifts were not worth more than Rs,5,000 while the ornaments appeared to be of imitation gold. It was further alleged that all the ornaments which had been given by the respondent's father to her, were taken away by the respondent alongwith real gold ornaments weighing 14 Tolas which belonged to the respondent's mother-in-law. The articles of dowry which remained in the house of appellant No,1, were not worth more than Rs,1,000. The same were also destroyed by flood water of Lyari river. It was also pleaded that the suit was time-barred. The Court framed the following issues:--
(1) Whether the suit is not 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?
' The learned Single Judge found all the issues in favour of the respondent and decreed the suit as shown above.
4. We have heard Mr. Syed Sarwar All appellant No,2 and Advocate for the appellants, and Mr. A.K.M.
Idris, Advocate for the respondent.
5. Mr. Syed Sarwar All pressse d his appeal only in respect of the findings on Issues Nos,2 and 3. He contended that as held by the learned Single Judge, even if it is assumed that Article 49 of the Limitation Act, 1908 applied, then also the suit having been filed after more than three years, is time-barred, as the suit in the shape of application in forma pauperis was presented in this Court on 15-3-1980, while the notice for return of dowry and bridal gifts was served by the respondent's counsel on the appellants on 6-10-1975. A complaint was also filed by the respondent under the West Pakistan Dowry (Prohibition on Display) Act, 1%7 for recovery of dowry and bridal gifts and thus the suit could have been filed within three years of the notice of the complaint and is, therefore, time-barred. We do not find any substance in this contention. Similar contention was raised before the learned Single Ridge, who repelled the same. The relevant passage is reproduced as under:-- "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 (Exh.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 thereon 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 waters 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 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 shelterless 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. (DB). 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 (Exh.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 sometime 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 acknowledgment 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."
' The reasoning given by the learned Single Judge as above is convincing, but the more convincing reasoning, according to us, would have been that the period of limitation was to run neither from the date of demand nor from the date of complaint, but from the date of refusal of the appellants to return the dowery and bridal gifts. The letter mentioned above does not amount to a refusal to return the same. It, on the contrary, keeps the respondent on hope and assures her that she could come and see the condition of the articles for herself. In other words the appellants had not refused, nor even objected to the return thereof. In that view of the matter even the suit against appellant No,2 was not barred. However, since no cross-appeal has been filed by the respondent against the judgment, we, therefore, uphold the fmding of the learned Single Judge on this issue.
6. Now we come to Issue No,3. Mr. Syed Sarwar Ali referred to para. 4 of the plaint and the last nine words of paras. 12 and 13 thereof regarding the deprivation of her ornaments and other articles due to coaxing and cajoling after Valeema on 9-6-1975 and before Chauthi which took place on 10-6- 1975 and submitted that this allegation in the plaint was not substantiated in the evidence, as it was not stated therein that the appellants had deprived the respondent of these articles by coaxing and cajoling to put them off and leave at their house after Valeema and before going for Chauthi. On the contrary in the cross-examination it is admitted that the question of taking away her ornaments on 3-8-1975 did not arise. He relied upon 1985 SCM R 1181/1192 (Muhammad Sharif v.
Afsar Textile Mills Ltd.), where it was held that "pleadings are a foundation for grounds and the Court has no power to determine or consider anything beyond that." He also referred to PLD 1985 Kar. 152/153 (Ghulam All v. Muhammad Hussain Kathawala), where it was held on the basis of Maxim: Secundum allegata et probata that "a party cannot succeed on a case not set up by him and cannot be allowed at trial to change his case or to set up a case different from one set up without amendment of pleadings."
7. There is no cavil to the legal proposition set out by these rulings. But we are of the clear view that neither of these rulings applies to the facts of the present case. The respondent had very clearly stated that all the articles of dowry, ornaments and gifts given to her were retained by the appellants. The said articles of dowry and ornaments were not returned to her by the appellants even after the dissolution of marriage and in spite of the notice and the complaint referred to above. Hence we also do not find any justification for interference with the finding of the learned Single Judge on Issue No,3.
' These are the reasons for which we dismissed the appeal by the short order dated 14-5-1991.