1. This writ petition is directed against the judgment and decree dated 13-4-1999 of the learned Additional District Judge Lahore whereby the appeal filed by respondent No. 1 was accepted and her suit was decreed for recovery of dowry articles.
2. Brief facts out of which the present writ petition arises are that petitioner and respondent solemnised marriage in accordance with injunctions of Islam on 9-11-1989 as per plaint, at the time of rukhisti parents of the respondent No. 1 plaintiff gave huge dowry articles. The relationship between the petitioner and respondent became strained and finally divorce was effected between the parties through Court on 4-6-1994. Respondent filed suit for the recovery of dowry articles or in the alternative for the recovery of Rs.3,82,100 before the Judge Family Court Lahore. Petitioner filed written statement controverted the allegations levelled in the plaint.
2. 2-A. Out of the pleadings of the parties, the Judge Family Court framed the following issues: -- (i)Whether the plaintiff is entitled to the return of gold ornaments as mentioned in the list attached with the plaint? OPP (ii)Whether the plaintiff is entitled to decree for the recovery of Rs. 82,500 as price of these gold ornaments? OPD.
3. (iii)Whether the suit of the plaintiff is not maintainable in its present form, if so, to what legal effect?
4. OPD.
5. (iv)Whether the suit of the plaintiffs is barred by time? OPD.
6. (v)Whether the plaintiff has got no cause of action as such plaint is liable to the rejected? OPD
(vi) Relief.
7. Learned Judge Family Court dismissed the suit as time-barred and gave its finding only on issue No.4. Respondent No.1 being aggrieved filed an appeal before the Additional District Judge Lahore who accepted the same vide judgment and decree dated 13-4-1999 reversing the finding on issue No.4 and decreed the suit after appreciation of evidence on record and gave finding against the petitioner on remaining issues to the extent that respondent No.1 is found entitled to recover back value of the golden ornaments in the sum of Rs.82,500 and the suit was decreed in the sum of Rs.82,500. Hence the present writ petition.
3. Learned counsel for the petitioner submits that respondent No.1 filed appeal without affixing proper court-fee. Therefore, appeal was not properly instituted. Therefore, .judgment of the First Appellate Court is without lawful authority. She further submits that respondent No.1 left the house of the petitioner on 1-3-1993 aid filed two suits i.e. suit for dissolution of marriage and suit for maintenance allowance against the petitioner which were decreed on 4-6-1994 and 12-10-1995 and the present suit for recovery of dowry articles was filed on 14,5-1997 which was highly time- barred. She relied on 1981 CLC 52 (AJK) (Mst. Jannat Bibi v. Abdul Karim). The finding of the trial Court on issue No.4 are based on reasoning but the First Appellate Court reversed the finding without adverting to the reasoning of the trial Court. She further submits that First Appellate Court erred in law holding that Article 49 of the Limitation Act is not applicable and Article 120 of the Limitation Act is applicable. She further submits that the First Appellate Court has given finding of fact against the petitioner by misreading or non-reading of the evidence on record. She summed up her arguments that the First Appellate Court did not give any finding on issues Nos. 1 to 3 and 5.
8. The First Appellate Court had to remand the case to the trial Court for decision on these issues but the learned lower appellate Court by deciding these issues has deprived the petitioner from his valuable right of appeal.
4. Learned counsel for the respondents submits that finding of the trial Court on issue No. 4 is based on misreading or non-reading of the record and First Appellate Court was justified to reverse the finding of the trial Court with reasoning as the finding of the trial Court is against the principle laid down by the superior courts in the following judgments: Jamshed Hussain Rana v. Rehana Kausar 1993 CLC 2084 and Iqbal Sajjad v. Syed Farzand Ali and 2 others 1998 M LD 379.
9. He further submits that evidence was recorded of both the parties by the trial Court qua all issues.
10. The First Appellate Court was justified to decide the case himself instead of remanding the case. He summed up his arguments that the First Appellate Court has given finding of fact against the petitioner after proper appreciation of evidence.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. I would like to decide whether the suit filed by respondent No. 1 was time-barred or not. It is better and appropriate to reproduce para. 6 of the plaint and reply of para. 6 to resolve the controversy between the parties to the aforesaid proposition of law-- "that the plaintiffs clearly asked the defendant to return her dowry articles but he has refused to do so lastly about a month back as well as thisThat para. 6 is incorrect and false. Therefore, denied.
11. From the aforesaid pleadings it is clearly revealed that the respondent No. 1 has taken a definite stand that petitioner refused to return the ornaments to her lastly about one month which was not specifically denied by the petitioner in reply of para. 6 aforesaid. This proposition of law was considered by my learned brother Mian Allah Nawaz, J., in Mst. Iqbal Sajjad case (supra) and observed as under: "In my opinion in this case there was no unlawful possession until a former demand was made, and the appellant refused to return it that being so the suit is not barred by limitation. "
12. Reference can also be made to the following judgments of the superior Courts: (sic)
13. I am also fortified by the following judgments.
14. AIR 1925 Rangoon 149 (Ma Mary v. Ma Hla Win)
15. AIR 1951 Mad. 704 (Gure Venkundaidu v. Appanna)
16. 1993 CLC 2084 (Jamshed Hussain Rana v. Rehana Kausar).
17. Mst. Jannat Bibi's case cited by the learned counsel for the petitioner is distinguished on facts and law. In the cited case in the suit for dissolution of marriage it .was very well-asserted by Mst. Jannat Bibi that dowry articles were snatched away by the husband while turning her out of his house whereas in the present case petitioner failed to bring on record suit for dissolution of marriage and suit for maintenance to bring the case within the principle laid down in the cited judgment. The present controversy is fully covered as per principle laid down in the aforesaid judgments of the superior Courts as is evident from para. 6 of the plaint. Even otherwise Article 120 of Limitation Act provides that any suit for which no period of limitation is provided elsewhere in the schedule. The period is six years. I am fortified by Mst. Sartaj-un-Nisa and 8 others v. Muhammad Ishaque and another (1992 M LD 1166). The First, Appellate Court was justified to give its own finding after proper appreciation evidence on record on issues Nos. 1 to 3 and 5, as per principle laid down by the superior Courts (PLD 1965 SC 434), Pramatha Nath Chaudhry. v. Kamir Mondal etc. (1993 CLC 109)
18. Manzoor--ul-Haq and 3 others v. Mst. Kaniz Begum. Even otherwise family Court is competent to follow its own procedure as per law laid down in Ghulam Murtaza's case (1999 CLC 81). The objections regarding affixation of proper, court-fee was not raised before the 1st appellate Court as well as in memorandum of this writ petition. Therefore, petitioner is estopped by his conduct to raise this plea. It appears that before the First Appellate Court it was agreed between the parties that the matter may be decided on oath. Respondent did appear and took the Oath on Holy Qur'an that the Jewellery articles were in the custody of the petitioner but the petitioner did not come forward for his statement on Oath and backed out. This fact brings the case of the petitioner that petitioner did not approach this Court with clean hands. I am not inclined to exercise my discretion in favour of the petitioner on the well known principle he who seeks equity must come to the Court with clean hands as per principle laid down by the Hob'ble Supreme Court. I am fortified by the following judgments:--- (PLD 1973 SC 2,36) "Nawabzada Ronaq Ali's case"
19. (1998 SCM R 1462) 'Rana Muhammad Arshad's case In view of what has been discussed above, the writ petition has no merit and the same is dismissed.