1. ' FAZAL ILAHI KHAN, J.---This is the plaintiff's appeal against the judgment and decree of the learned High Court of Baluchistan dated 21-7-1992; modifying the judgment and decree passed by Additional District Judge, Quetta, dated 22-3-1992.
2. ' It was the plaintiff's case that she was married to defendant No,2, viz. Abdul Jaleel in the year 1977 and that in the course of time their relations became very strained resulting in divorce. The present suit was instituted by the plaintiff against her father-in-law Abdul Majid defendant No,1 and Abdul Jaleel defendant No,2, her previous husband, in the Court of Senior Civil Judge, Quetta, in July, 1980 for recovery of Rs,1,62,600, detailed as under:-
(1) Rs,40,000 the approximate cost of goods/articles mentioned in para.7 of the plaint;
(2) Rs,25,000 the value of the golden ornaments exclusively given to her by her husband at the time of her marriage as given in para.9 of the plaint; and
(3) Rs,87,000 the market value of the golden ornaments belonging to the plaintiff, given to her by her parents mentioned in para.10 of the plaint.
3. ' That the aforementioned articles/goods were retained by the defendants at the time she was turned out of the house; that subsequently on demand they refused to hand over the same to her after she was divorced.
4. ' The defendants in their joint written statement denied the allegation made in the plaint with regard to their conduct which ultimately resulted in divorce. As for the articles of which retention is alleged and claim is made by the plaintiff, it was stated that defendant had spent a sum of Rs,1,65,240 on her marriage, gift made to her and ornaments etc. Given to her. The complete list of the valuables given to her has been concealed and withheld. It was further stated that no demand or claim whatsoever' was made by the plaintiff of the articles of its composite value of Rs,87,000 in the notices served on defendant No,2.
5. ' The learned Trial Judge framed numerous issues of which the following are material for the decision of the present appeal:-
(7) Whether the defendant No,2, had, after divorcing the plaintiff, retained her property listed in Para. 7 of the suit? OPP
(8) Whether the defendants also retained the plaintiff's property mentioned in Para. 10 of the suit?
OPP
(9) Whether the defendant No,2, had given any property to the plaintiff, in addition to that mentioned in Para. 9 of the plaint? If so, of what value? OPD ' After recording evidence of both the parties the learned Trial Judge, on his finding that the claim was in violation of the provision of Dower and Bridal Gifts (Restriction) Act, 1976 (Act XLIII of 1976)
6. (hereinafter referred to as the Act), the plaintiff's suit was dismissed on 31-12-1988. However, the learned High Court of Baluchistan set aside the judgment and decree and remanded the case on the ground that no specific issue had been framed on the point which prevailed with the Trial Judge. It was directed that the parties be afforded opportunity to lead their evidence on such issue and to give decision afresh. After the remand both the learned counsel for the parties made statements in Court that the issue in question is purely of law, therefore, no evidence was required to be recorded and addressed their arguments on merits. The learned Additional District Judge seized of the case on appraisal of the evidence decided the additional issue in favor of the plaintiff and against the defendants basing reliance on an earlier decision on the point. On merits the plaintiff was found successful in proving her case that the defendant had retained the articles/goods of which the amount is claimed. That the defendant was unable to prove that he had handed over the goods/articles. To the plaintiff on her divorce. On such findings the aforementioned three issues were decided in favor of the plaintiff and in consequence her suit decreed.
7. ' Aggrieved by the judgment and decree the defendants went in appeal against at became before the High Court of Baluchistan. The learned Judge in the High Court, however, held that there was no evidence to prove that the plaintiff had brought the listed goods/articles to the house of the defendant and further to prove its prevailing market value. The finding of the Trial Court in this respect was, therefore, reversed. Regarding the ornaments, in proof whereof the plaintiff had placed on file the receipts Exist. P 1 , P2 and P3, it was held that the same had been prepared by the father/attorney of the plaintiff who had given it to the plaintiff at the time of her marriage and that there was an implied admission by the defendant. So in absence of any cogent evidence of its return to the plaintiff she was entitled to Rs,5,938 the actual price mentioned in the receipts. The appeal was partially accepted, the judgment and decree passed by Additional District Judge, Quetta, was modified to the extent and the plaintiff's suit was decreed for a sum of Rs,5,938 instead of Rs,1,62,600.
8. ' It was vehemently contended before us that the High Court erred in setting aside the finding of the Trial Judge given on the issues based on proper appraisal of evidence in absence of any misreading and non-reading or legal infirmity. It was further argued that the learned High Court on reaching the conclusion that defendant did retain the golden ornaments was bound to have passed a decree for the return of the ornaments or its market value at the time of passing of the decree i,e, 21-7-1992.
9. ' Having heard the learned counsel for both sides we are not inclined to enter into the field of re- assessm ent of the questions of fact which have attained finality in the judgment of the learned High Court. Although the issue regarding the ornaments, its retention and the plaintiff's entitlement to the same has been decided in her favor but no decree has been granted by both the Courts below. Both the Courts below, however, fixed different amounts as the market value of the ornaments. The Trial Court decreed the plaintiff's suit for the amount claimed by her in the plaint as the market value of the ornaments while in appeal the valuation was fixed according to market value shown in the receipts placed on file. This difference in the valuation has not been judicially resolved. We, therefote, feel that determination of the market value of the ornaments is the main issue relevant for decision in this appeal. Both the learned counsel for the parties agreed that section 13 of the West Pakistan Family Courts Act, 1964, is not helpful in determining the market value of the ornaments (movable property) rather it is silent about the determination of its value in case a decree for delivery of such property is un-executable. However, in such situation, therefore, we have to lay our hand on Order XX, Rule 10, Civil Procedure Code which reads as follows:-- "Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had."
10. In the instant case it has already been observed that no decree for delivery of ornaments had been passed, therefore, the only question which remains for determination is the date relevant for such purpose i,e, the date the cause of action arose, the date on which the suit was filed or the date of the decree. The provision of law referred to above is silent about such date.
11. ' However, in L. Tilok Chand son of L. Mul Chand v. L. Damodar Dass son of L. Daso Ram (AIR (32) 1945 Peshawar 5) reproducing Order XX, Rule 10, C.P.C. It was held:-- "This provision of law made it compulsory for the Trial Court to assess the price of wheat and to direct that it should be paid if the wheat is not delivered. It will be seen that the question as to when the cause of action arose is absolutely foreign to the assessment of the price by the Court under this rule. The wording of this rule makes it obvious that the value according to the rate prevailing during the days when the suit was instituted is to be found out, and not at the rate prevailing on some other date."
12. We fully endorse the view taken in the precedent case and hold that the plaintiff is entitled to the market value of 18 Tolas 11 Masha's of gold.
13. ' As there has been led no evidence about the market rate of the gold on the date of institution of the suit, therefore, we instead of remanding the case, partially allow this appeal, set aside the judgments and decrees of the Courts below to that extent and decree the plaintiff's suit for the market value of the ornaments weighing 18 Tolas 11 Masha's at its market rate on the date of institution of the suit. Such amount shall be determined by the executing Court after proper inquiry and recording evidence of the parties.