' In this petition the petitioner has assailed the judgment and decree, dated 14-12-1991 passed by the learned Additional District Judge, Faisalabad whereby he set aside the judgment and decree of the learned Civil Judge, Jaranwala, dated 21-1-1991 through which he partly decreed the suit of the plaintiff against the petitioner for the recovery of Rs,16,050 as price of the alleged articles of dowry.
2. Brief facts of the case are that the petitioner was married to the respondent on 21.2-1986 and at the time of, 'Ruichsati' she was given a number of articles of dowry as detailed in the plaint as well as in the statement of Muhammad Asghar P.W.3 brother of the petitioner, the value of which was fixed at Rs,24,800. The strained relations between the spouses culminated in divorce or. 30-6-1989 and the petitioner filed a suit for return of her dowry articles or in the alternative Rs .24 ,800 .
3. The learned Judge, Family Court decreed the suit to the extent of Rs,16,050. The value of the articles which were given by the respondent at the time of marriage was deducted from the claim.
The respondent filed an appeal in the Court of District Judge and during the pendency of the appeal, the statement of the respondent was recorded by the Appellate Court wherein he repeated the names of articles which were allegedly given to the petitioner and were in his possession and he was ready to return the same. The learned Appellate Court virtual), dismissed the suit of the petitioner except to the extent of return of the aforementioned articles vide his judgment and decree, dated 14-12-1991.
4. Learned counsel for the petitioner has submitted that from the reasoning given by the learned Appellate Court it appears that the learned Appellate Court 'and the respondent have bestowed a favour upon the petitioner by voluntarily making a statement and passing the judgment and decree respectively, otherwise the judgment goes to suggest that no decree could be passed in favour of the petitioner and- that it would be noteworthy that the respondent had himself stated in his statement before the lower Appellate Court that the articles were given to the petitioner at the time of her marriage and has nowhere stated about the taking back these articles lee the petitioner and that it appears that the Court was prejudiced against the cause of the petitioner and that the lower Appellate Court has taken great pain in picking up minute but natural dtscreparries to brush ?Side the evidence and claim of the petitioner. It is further submitted that it would not be out of place to submit that the amount of Rs,24,800 appears to have been fixed as though large but the amount could have been claimed without the payment of court-fee which the petitioner could not afford. Otherwise the value of the articles of dower was in much excess of the amount claimed and that the lower Appellate Court has exercised a jurisdiction not vested in it and that the evidence of the petitioner has not been read in its true perspective.
5. On the other hand, learned counsel for the respondent has opposed the petition on the ground that revision is not competent as not provided under the West Pakistan Family Courts Act.
1964. He further submitted that this Court cannot go into the inference drawn from certain facts by the two Courts below even if these were not correct or proper.
6. The objections of the learned counsel for the respondent are not legally sound as the suit for the recovery of dowry was instituted on 3-10-1989 and the judgment and decree was passed by the learned Civil Judge on 21-1-1991 and appeal was preferred before the learned District Judge on 14- 2-1991 which was decided on 14-12-1991 and at the relevant time, the revision petition under section 115, C.P.C.. Was fully competent as the item of dowry was not included in the Schedule to section 5 of the West Pakistan Family Courts Act, 1964. The said Act was amended by the Act No, VII of 1997 which was enforced on 26-4-1997 whereby item of dowry was added at Serial No,8 of the said Schedule.
7. In the case of N.M. Khan and another .v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another (1970 SCM R 158), the Hon'ble Supreme Court of Pakistan observed that the question whether an inference follows from 'Certain facts or not, is a question of law. It was further observed that where, therefore, the view that prevailed with the Tribunals below had been influenced by an erroneous deduction from facts which manifestly could not support such an inference, reduced their decision to an arbitrary and illegal exercise of power and threw it open to review in writ jurisdiction by the High Court,
8. In the case of Manager. Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), the Hon'ble Supreme Court observed that the scope of revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as, firstly, its discretionary jurisdiction may be invoked by the Court suo motu and, secondly, the Court may make such order in the case as it thinks fit.
9. In the present case, no evidence at all was existing on the record to substantiate the inference drawn by the learned Civil Judge whereby he reduced the amount claimed by the plaintiff and similarly, no reasonable man would draw the inference which was patently wrong as drawn by the learned Additional District Judge.
10. Now the question is, should the case be remanded back to the trial Court to assess the evidence available on record correctly or to save the time of the parties to be assessed by me here? I am of the considered opinion that as the High Court can in its revisional jurisdiction go into the question of fact as well, the assessm ent of the evidence in presence of both the learned counsel for the parties is in the ends of justice.
11. There is no controversy about the entitlement of the plaintiff to recover the cost of the articles of dowry. The only dispute between the parties is as to how much cost is payable by the respondent.
According to plaintiff, the cost of the said articles is Rs,24,800 and according to defendant, it is only to be calculated of a table, a bed, a cot and two chairs which according to the price mentioned in the list of articles of dowry comes to Rs,2,400.
12. Basically, the burden of proof is on the plaintiff and to discharge this burden, she has examined three witnesses including herself.
13. Petitioner/plaintiff Mst. Shamim Akhtar appeared as P.W.1 who deposed that the dowry given by her parents was brought by her to Or house of the defendant/ respondent at the time of her Rukhsati and the said dowry is now in the possession of defendant/respondent and that her dowry included golden ornaments of the kind of ear rings 1-1/4 Tola, two finger rings of one Tola, 12 silken bed, 17 pairs of clothes, two iron boxes (Paties), four Plungs, four chairs, one Doli, one table, one pedestal fan, one iron, one sewing machine, 60 utensils (big and small) of the value of Rs,24,800. In her cross-examination, she deposed that the amount of Rs,24,800 included a finger ring, 8 pairs of clothes and a watch which was given by her parents to the defendant. She also deposed that the golden ring was of one Tola and the price of watch was Rs,1,000 and the price of 8 pairs of clothes was Rs,800. She also admitted that she had used one pair of cloth which was given by the defendant and she has not yet used her own pairs of clothes. She also admitted that the list of the said dowry was not prepared at the time of marriage Sand that she did not remember the colour of the clothes. In her deposition in the cross-examination, she gave the details of the utensil as including one Paraat, a big Degcha, a Karahi, Chhanana, a Brass bucket, a Degcha, a jug, a Iota, a thaal, six brass plates, six glasses and six cups etc.,' and that all the utensils were 60 in number including steel utensil. She deposed that the electric iron was foreign made. She had no knowledge of the manufacturing company of the pedestal fan and also of the sewing machine. She denied of having taken away with her when she was ousted the golden ornaments wcighing 10 Tolas, silken clothes 30 pairs and a cash of Rs,7,000. She specifically stated that it was incorrect that her parents had not giver the said articles to her. She also stated that it was also incorrect that the iron boxes were rot given to her or that no bed was given to her. She explained that the dowry was given by her brothers which she has stated as given by her parents.
14. P.W.2 also stated that two boxes, four Plungs, 12 beds, six untensils, a fan, a sewing machine, an iron, a Doli, ornaments, wearing clothes, four chairs and a big table were given. In his cross- examination, he deposed that the brother of the plaintiff had calculated the dowry and had told that it was of the cost of Rs,24,800.
15. P.W.3 Muhammad Aslam deposed that the dowry included 1-1/4 Tola ear-rings, two finger rings of one Iola, a male finger ring of one Tola, 17 lady suits, 8 gents suits, 12 beds (six silken and' six warm), four pilings, two iron boxes, a big table, four chairs, one Doll, 60 utensils, a fan, an iron, a sewing machine and a gents watch of the value of Rs,24,800. He also deposed that when the defendant gave beating to the plaintiff and ousted her, she came only with the clothes that she had worn and nothing from the dowry had brought with her and when the defendant gave divorce to the plaintiff, he had not returned anything out of the dowry to her. All the articles were taken to the house of the defendant by the plaintiff at the time of her Rukhsati and the said articles are still in the possession of the defendant.
16. On the other hand, the defendant has examined himself as D.W.1 and stated in his examination- in-chief that the parents of Mst. Shamim had given to her in dowry a cot, two chairs, a table, a bed and 5/6 pairs of clothes. She had worn two pairs of clothes and took away three pairs of clothes along with her and that Rs,4,000 were taken from him by Muhammad Aslam, the brother of the plaintiff as expenses of the marriage. He further deposed that Muhammad Aslam brother of the plaintiff had beaten his parents in his absence and took away all the clothes, an amount of Rs,7,000 and 30 pairs of silken Japanees suits along with them. The plaintiff also took with ' her five Tolas golden ornaments which were given by him besides five Tolas golden ornaments of his mother which were kept in the house. In his cross-examination, he admitted that he is nine class pass and had got the written statement dictated himself to the Advocate and had signed it after reading its contents and had not dictated about Rs,4,000 and ornaments as having taken away by the plaintiff. He also admitted that he had not lodged any F.I.R. Regarding the incident that the plaintiff and her brother had beaten his parents. He admitted that the articles given by the parents of the plaintiff were brought by her in his house. He stated that it was incorrect to suggest that the plaintiff's parents had given her 1-1/4 Tola ornaments and an iron box. He admitted that parents or heirs had given her four pairs of clothes. He stated that it was incorrect to suggest that the parents of the plaintiff had given 60 utensils, a sewing machine, a watch, an iron, 17 pairs of clothes to her and 8 pairs of clothes to him. He also admitted that the fact regarding taking away of the above articles, ornaments and beating was told to him by his parents. He also deposed that he took Panchayat in the year 1987-88 along with Ghulam Mustafa Ex-Chairman Union Council, Abdul Hayee A.S.I. Retired, Bashir Ahmad Awan, Ghulam Qadir Advocate and Muhammad Ali.
17. Muhammad Ali D.W.2 has also appeared and stated that the articles of dowry given to the plaintiff were a cot, a bed, 4/5 suits, two chairs and a table. He also deposed that when the plaintiff side came to the house of the defendant to take divorce, they quarrelled with his parents and took away the articles etc., in a box. He also deposed that they had brought Rs,7,000 with them in cash and the plaintiff took away ornaments and 30 Japanees suits. In his cross-examination, he admitted that when the plaintiff and her brother came to the house of the defendant and had taken away the, articles and had beaten the parents of the defendant, he was not present at the spot. However, his wife was present there and she had told the whole story to him. He also deposed in the cross-examination that the defendant had given 5/6 Tolas ornaments and 10/15 suits. He also admitted it as correct that the articles and ornaments which were given by the defendant to the plaintiff were brought by her in the house of the defendant. He denied the suggestion that when the plaintiff went out from the house, she had gone empty-handed.
18. This is the whole evidence on the. Record. Additionally, learned Additional District Judge also recorded the statement of the appellant/defendant (now respondent in this revision petition) on 14-12-1991 in which he admitted that from out of the dowry of the respondent (plaintiff-petitioner), a table, a bed, a cot, two chairs and a big table were with him.
19. From the above evidence, it stood proved that the defendant could not produce any evidence in rebuttal regarding the fact of taking away of any article of dowry from the house of the respondent-defendant as the witness produced by him, namely, Muhammad Ali D.W.2 has admitted that he was not present at the time of taking away of the articles by the plaintiff and his wife was present who has not been produced as a witness, as had she been produced, she would have been put to the acid test of cross-examination. The statement of the plaintiff has been fully corroborated by P.W.2 who is a neighbour and independent person and P.W.3, her real brother, who was the best witness regarding the article of dowry in dispute because it was he who had given all these articles as her father had already died.
20. In this view of the matter, the suit should have been decreed fully but there is also force in the argument of the learned counsel for the respondent that the list of dowry mentions of 3-1/4 Tolas ornaments while according to evidence on the record that has come from the side of the plaintiff, the weight is one Tola less. In this manner, the cost mentioned in the list of dowry being Rs,I1,000 for 3-1/4 Tolas, the cost of 2-1/4 bolas will come to Rs,7616 and the total amount of dowry will come to Rs,21,4I6 after deducting the above amount.
21. The above discussion shows that both the Courts below have either misread the evidence or - totally ignored the proved evidence on the record whereby there has been gross miscarriage of justice. As such, this Civil Revision is accepted, both the judgments and decrees of the Courts below are set aside and the suit of the plaintiff is decreed to the extent of Rs,21,416. There is no order as to costs.
22. At this stage, learned counsel for the respondent has prayed for time to deposit the decretal amount in instalments. Time of three months is granted to the respondent to deposit the decretal amount of Rs,21.416 with the learned trial Court.