This petition, under section 115, C.P.C. by Mst. Iqbal Sajjad/plaintiff, is directed against the judgment and decree passed by the learned Additional District Judge, Bahawalpur dated 29-5-1984 whereby that Court accepted the first respondent's appeal, set aside the decision of the Court below and dismissed suit for recovery of dowry brought by petitioner.
2. Few facts, relevant for the disposal of this petition, are that Mst. Iqbal Sajjad was married to Farzand Ali/respondent No,1 on 21-11-1973; that at the time of Rukhsati, petitioner's father had given her articles of dowry mentioned in Schedule "A" appended to the plaint; that these articles valued Rs,24,985; that the relation between the two became strained and the petitioner was turned out of the house by respondent No,1 in the month of July, 1976; that a month before the institution of the suit, the petitioner asked respondent No,1 to return her articles of dowry but he refused to do so. The suit was contested. Respondent No,1, in his written statement, maintained that the suit property, according to the plaint, was present in home falling in District Sargodha and so the Court at Bahawalpur has no territorial jurisdiction to hear this suit; that respondents Nos.2 and 3 were neither necessary party nor proper party and so the suit merited to be dismissed for misjoinder of parties; that the suit was barred by time; that the petitioner had not been given any dowry by her father except certain petty articles. On the divergent pleadings of the parties, the learned trial Court framed the following issues:-- (1)Whether this Court has no jurisdiction to try this suit? OPD.
(2)Whether the plaintiff has no cause of action? OPD.
(3)Whether the suit is barred by time? OPD.
(4)Whether the defendants Nos.2 and 3 are unnecessary parties to the suit? If so, its effect? OPD.
(5)Whether the suit is liable to be dismissed as Fard Patta has not been signed properly; If so with what effect? OPD.
(6)Whether any article of dowry of the plaintiff is in possession of the defendnat? If so, what are those articles and what is their vlaue? OPD.
(7)Whether the plaintiff is entitled to the return of any article of dowry or its value? OPP.
(8)Relief.
3. The parties led their oral as well as documentary evidence in support of their pleas. On the consideration of the evidence so adduced by the parties, the learned trial Judge decided all the issues including the issue of limitation against respondent No,1 and so decreed the suit in following terms:-- "In view of my findings on the above issues the suit of the plaintiff is hereby decreed with costs. A decree for recovery of articles mentioned in the list Exh.P-I of in alternate for the recovery of their value Rs,24,985 is hereby passed in favour of the plaintiff and against the defendants."
Feeling dissatisfied, first respondent preferred appeal which was accepted by the learned appellate Court on the question of limitation. It was held therein that the petitioner was driven out from the house of respondent No,1 in the month of July, 1976 and so the limitation started running from July, 1976 and so the suit filed by the petitioner in the year 1980 was clearly barred by time. It is necessary to note overhear that the learned appellate Court affirmed the findings of the trial Court on other issues. In this factual matrix, this revision petition has come to this Court.
4. The learned counsel for the petitioner, in support of this petition, has raised the following points:-- Firstly: that although the petitioner was turned out by the respondent No,1 from his house in the month of July, 1976, yet he declined to return the dowry articles one month before filing of the suit.
So, the suit was within time under Article 49 of Schedule to Limitation Act. Reference was made to Ma Mary v. Ma Hla Win (AIR 1925 Rangoon 146) and Gure Venkundaidu v. Appanna (AIR 1951 Mad.
704).
Secondly: that even otherwise Article 145 of the Schedule to Limitation Act, was applicable to dowry suit and not article 49. Continuing, the learned counsel submitted that Articles of dowry were lying with respondents Nos.1 to 3 as a deposit and so Article 145 applicable.
5. The learned counsel for the respondent, in reply supported the impugned decision. He raised a preliminary objection to the maintainability of the revision petition. According to him, at the relevant time Ordinance XII of 1972 was in field and so the decision rendered by the learned Appellate Court was subject to challenge by way of filing second appeal. The learned counsel for the petitioner, in reply to the above objection, relied upon Abdul Aziz v. Abdur Rehman (PLD 1984 SC 164) and Karamat Hussain v. Muhammad Zaman (PLD 1987 SC 139), to contend that even if it was found that second appeal was competent the memorandum of revision petition be treated as second appeal and the same be decided on merits.
6. I have heard the learned counsel for the parties at considerable length and attended to their rival contentions carefully. The two questions, requiring decision are: Firstly, whether the revision petition was competent on the facts and circumstances of the case that the petitioner was to file a second appeal and not revision against the decision of first Appellate Court. Secondly, whether Article 49 of Schedule to Limitation Act was correctly applied by the Appellate Court?
7. As regards the first question/preliminary objection, it is beneficial to refer Ghulam Fatima v. Fazal (1986 CLC 2057). In this case, on 27-3-1971, Fazal and others sued for declaration with recovery of possession of suit property. The learned trial Court decreed the suit on 24-5-1976. Ghulam Fatima and others preferred an appeal on 28-6-1976, which came up for hearing before the learned Additional District Judge, Gujrat on 22-6-1980 wherein objection was taken with regard to deficiency of the court-fee. Upholding this objection, it was held that the court-fee on the plaint should have been affixed by plaintiff under section 8(iv)(a) of the Court Fees Act; that plaint was deficiently stamped, that appeal so filed, was barred by time. The learned Appellate Court, on this conclusion, dismissed the appeal. Feeling aggrieved, Mst. Ghulam Fatima and others preferred a revision petition. Before High Court, objection was raised that the value for the purpose of jurisdiction in the suit, out of which revision has arisen, was below Rs,25,000 and hence revision petition was not competent. Dealing with this question, his lordship Mr. Justice Rustam S. Sidhwa (as he then was) held that this Court had power to convert the memo. of revision into memo. of an appeal and the limitation for, so converted second appeal, was to commence from the date of institution of revision petition and not from the date of its conversion. It will be useful to quote in extenso paras. Nos.7, 8 and 9 of the said precedent:-- "7. What remains to be determined is whether on the date of institution of suit, the parties had a right of second appeal. On 27-3-1971, all suits of a civil nature, except those excepted under the Second Schedule of the Provincial Small Causes Courts Act, 1887, if their value did not exceed two thousand rupees, were cognizable by Courts of Small Causes and under section 102, C.P.C. as then existing, second appeals in all such Small Causes Court suits were barred, if the value of the subject-matter of such suits did not exceed five hundred rupees. Under subsection (1) of section 15 of the Provincial Small Causes Courts Act, 1887. Courts of Small Causes were debarred from taking cognizance of suits specified in the Second Schedule, they being suits declared as 'excepted' from the cognizance of Courts of Small Causes. Under subsection (2) of the same section, subject to exceptions specified in the Second Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value did not exceed two thousand rupees were cognizable by Courts of Small Causes. The very first subsection excluded suits listed in the Second Schedule from cognizance of Small Causes Courts and referred to the suits specified in the Second Schedule 'as suits excepted from the cognizance' of Courts of Small Causes. Thus, by the very first subsection, suits specified in the Second Schedule were taken out from the range of suits cognizable by Courts of Small Causes. Under Items Nos.4 and 19 of the Second Schedule, suits to obtain possession and a declaratory decree were both excepted from the cognizance of Courts of Small Causes. In these circumstances, section 102, C.P.C., as then existing, was not applicable to the instant case. See Maung Po Kyun v. Ma Shwe (AIR 1935 Rang. 386). Thus, on the date of institution of the suit, parties had a right of preferring a regular second appeal. It is an accepted principle of law that a first appeal or a second appeal, is not merely a matter of procedure but a substantive vested right. An appeal is a continuation of a suit. The institution of a suit carries an implication that all rights of appeal then in force are available to the litigants till the end. If any authority is required for this view, Mst. Sardar Begum v. Muhammad Ilyas (1983 CLC 1570) may be preferred.
8. In the instant case, before any decision could be given on the regular first appeal preferred by the defendants-petitioners, the Law Reforms Ordinance XII of 1972, was enacted on 14-4-1972, taking away, as from that date, the right of preferring a second appeal in respect of suits of the nature referred to in section 102(b) of the Code of Civil Procedure unless their value exceeded rupees two thousand. On 26-3-1980, by section 12 of the Code of Civil Procedure (Amendment)
Ordinance, X of 1980, this value was raised to rupees fifty thousand. But since, as earlier stated, the right of second appeal was available to the parties on the date of institution of the suit and the amendments did not affect the same retrospectively, the same survived to the defendants- petitioners and they had a right of preferring a second appeal after their first appeal was dismissed on 22-6-1980. Mst. Sardar Begum's case (supra) is in point.
9. This revision petition was instituted on 9-8-1980, much within the time required for preferring a regular second appeal. With the recent enactment of the Code of Civil Procedure (Amendment)
Ordinance (X of 1980), on 26-8-1980 raising the value of the subject-matter of suits from rupees two thousand to rupees fifty thousand for the purposes of second appeals, confusion prevailed in the minds of both lawyers and parties whether a revision petition was competent or a regular second appeal. Considering that the present revision petition was filed with the utmost speed and despatch, this petition is allowed to be converted into a regular second appeal. The delay in the submission of the application is condoned. Both the miscellaneous petitions are, therefore, accepted."
The same view was approved by the Supreme Court in Abdul Aziz v. Abdul Rehman (PLD 1984 SC 164) in following words:-- "In the case before us the High Court has allowed the revision to be treated as second appeal. The only point in issue is from that date this revision should be treated to be converted into a second appeal, from the date a misconceived civil revision petition was instituted from the date a request was made for its conversion or from the date that it was allowed to be converted and registered as a second appeal. We find that as no other formality had to be completed in the nature of deficiency in court-fee to be made up or condition to be satisfied e.g. the initial bar of limitation, the treatment has to be from the date that the revision petition was instituted."
The view taken in above cases was followed by the Karachi High Court in S.S. A Naeemul Hamid v.
Tahira Sultana (1991 CLC 853). The ratio, deducible from the above discussion is that this Court had inherent jurisdiction to treat memo. of revision petition as memo of Regular Second Appeal and vice versa. The limitation for so converted memo. of appeal/revision shall commence from the date of filing the revision petition/second appeal.
8. Guided by the above rules, I am persuaded to accept preliminary objection. Undoubtedly, the suit in the case in hand was filed on 10-1-1980 and the Law Reforms Ordinance (No,XII of 1972) was promulgated on 14-4-1972 wherein the right of preferring second appeal, in respect of suits referred in section 102(b) of C.P.C., was taken away when their jurisdictional value exceeded Rs,2,000. This Ordinance was amended by the Amending Ordinance (No,X of 1980) where the value was raised from Rs,2,000 to Rs,50,000. It was not made retroactively applicable and was made effective from 26-3-1980. On these facts, it is manifest that the petitioner, who had filed the suit on 10-1-1980, had to file a second appeal and not a revision. However, this will not preclude me from treating the memo. of revision as memo. of second appeal. In the case in hand, the learned Appellate Court below rendered the decision on 29-5-1984; that the petitioner filed an application for supply of its certified copy on 31-5-1984; that the same was prepared and delivered to the petitioner on 2-12- 1984; that the petitioner did file the instant revision petition on 7-1-1985. From the above resume of the relevant facts, it is thus, clear that the petitioner had filed the revision petition within time prescribed for filing second appeal under Article 156 in Schedule to Limitation Act. Taking these circumstances into consideration, I am clear in mind that this second appeal (now so treated) is within time.
8-A. Answering to next question hinges upon Article 49 in Schedule to Limitation Act. it reads as follows:-- "49. For other specific movable property, or for compensation for wrongfully taking or injuring or wrongfully deataining the same.Three Years When the property is wrongfully taken or injured, or when the detain's possession becomes unlawful."
A plain look, at the above article, would indicate that it prescribes the period of limitation for recovery of specific movable or for compensation for wrongful taking or injuring the said property.
From the above, it is clear that the limitation is to commence from the moment the property in dispute is wrongfully taken or injured or when its possession of the other person becomes unlawful.
The word "wrongful" means "injurious, heedless, unjust, reckless, unfair, Infringement of some right".
See Black's Law Dictionary, page 146. It, therefore, clearly follows that the commencement of limitation is dependent upon the taking of disputed movable property wrongfully. The question for consideration is whether 'when the petitioner was turned out from the house of the respondent No,1, the disputed property was taken by the respondent wrongfully. This question was answered by the High Court of Rangoon in Ma Mary v. Ma Hla Win (AIR 1925 Rangoon 146) and it was held:-- "Under Article 49 limitation would begin to run from the date when the detainer's possession becomes unlawful. If the appellant's case is true no question of limitation can arise. If the plaintiff's case is true, then the possession by the appellant of this jewellery was a permissive possession only, and her possession would become unlawful, ordinarily speaking, only when a demand was made, followed by a refusal. If the appellant's possession was permissive, the character of that possession would not be changed by the fact that she set up a claim to it as her own property. Her bare allegation is not sufficient to make her possession unlawful. It will be open to the plaintiff to say that that was not true, and to leave the property with her until she chose to demand its return.
In my opinion in this case there was no unlawful possession until a formal demand for the return was made, and the appellant refused to return it. That being so, the suit is not barred by limitation"
Also see Gure Venkunaidu v. Appanna (AIR 1951 Mad. 704) and Jamshaid Hussain Rana v. Rehana Kausar (1993 CLC 2084).
9. Applying this principle to the facts of this case, it is quite manifest that the possession of the appellant and respondent No,1, was joint when the appellant and respondent No,1 used to lead a happy marital life. The moment she was turned out from the house of respondent No,1; she still continued to exercise her constructive control over it. The retention of the property in dispute in the house of respondent No,1 never lent amounted to unlawful/wrongful possession of respondent No, 1.
The case of the petitioner was that she had made a demand for the return of the dowry articles from respondent No,1 a month before the institution of the suit and it was then that the respondent No,1 declined to return these articles. The case of the respondent was that there was no article of dowry left in his house. On the evidence adduced by the parties, the learned first Court concluded that the father of the appellant had given the articles of dowry to the appellant and these articles had not been returned to her. This finding as affirmed by the first Appellate Court. The learned counsel for the respondent even did not challenge this concurrent conclusion of two Courts before me. He relied upon the question of limitation only. From the above resume of the case, I have no difficulty. in coming to the conclusion that the learned first Appellate Court has erred in holding that suit of petitioner was barred by time and so its findings cannot be sustained. On above findings, I have no option but to accept this revision petition treated by me as second appeal.
10.For the reasons slated above, this Regular Second Appeal succeeds.
The judgment and decree of variance passed by the learned Additional District Judge dated 29-5- 1984 is hereby set aside while the judgment and decree passed by the learned Civil Judge dated 23-11-1981 is hereby restored. Respondent No,1 shall bear the cost of proceedings throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.