This judgment shall dispose of W.P. No,13322/2003 (Faisal Afzal Sheikh v The A.D.J. Lahore and others) and W.P. No, 13323/2003 (Faisal Afzal Sheikh v. The A.D.J. Lahore and others) as they have nexus.
2. 'Facts briefly stated are that in sequel to strained relations, respondent wife Mst. Ayesha Sheikh filed a suit for recovery of dowry articles or in the alternative a sum of Rs,18,00,000 and a suit for dissolution of marriage. Petitioner husband also filed a suit for restitution of conjugal rights. The suits were consolidated and vide consolidated judgment and decree dated 31-7-2002, the learned Judge Family Court Lahore decreed respondent wife's suit for dissolution of marriage as also suit for recovery of dowry articles to the extent of Rs,13,00,000 in lieu of the dowry articles while petitioner's suit for restitution of conjugal rights was also dismissed. In appeal, the afore-referred finding of the learned Family Court was affirmed and petitioner's appeal was dismissed by the learned Additional District Judge Lahore vide judgment and decree dated 6-1-2003. Through these petitions, afore-referred concurrent judgments and decrees have been challenged.
3. Learned counsel for the petitioner, right at the outset on instructions, submitted that he would not challenged the impugned judgment and decree in so far as the decree in the suit for dissolution of marriage and restitution of conjugal rights is concerned and would confine his submissions to the judgment and decree in the suit for recovery of dowry articles. That being so, W.F. No,13323/2003, wherein the judgment and decree dissolving the marriage has been challenged, is dismissed.
4. While assailing the judgment and decree in the suit for recovery of the amount in lieu of the dowry articles, learned counsel for the petitioner made following submissions:--
(i) That both the Courts below have fell in error in decreeing the suit for recovery of dowry articles as the respondent-plaintiff had failed to produce any tenable and documentary evidence in support of her claim qua the value of the articles in question. The findings rendered in this regard, therefore, are not supported by any evidence on record respondent wife to her parents' house and whatever was left behind was intact at petitioner's house. She was offered more than once to collect the dowry articles but she refused. Both the learned Courts below have not considered this aspect. The judgments and decrees of both the Courts below are, therefore, arbitrary;
(iii) that no independent evidence was led by the respondent wife with regard to the allegation that Honda Civic Car which she brought with her on marriage was retained by the petitioner or sold away by him. In this backdrop the petitioner could not saddled with the liability to pay for the said car.
5. Learned counsel for respondent-plaintiff Mst. Ayesha Sheikh, defended the concurrent judgments and decrees by submitting as follow.--
(i) That the respondent-plaintiff had, right at the outset, i,e, at the time of filing the suit, had annexed the list of dowry articles alongwith the suit which list was never challenged by the petitioner-defendant. He made particular reference to paras. 2, 3 and 4 to the plaint and the corresponding paras. In the written statement by the petitioner-defendant to contend that in absence of specific denial it shall be presumed that the petitioner was either in possession of the articles in question or he had misappropriated the same;
(ii) that there was no specific denial about the car either which indicates that the petitioner- defendant had sold respondent-plaintiff's car himself and misappropriated the amount; and
(iii) that the concurrent judgments and decrees neither reflect any jurisdictional defect not arbitrariness to warrant interference in the Constitutional jurisdiction of this Court.
6. I have heard learned counsel for the parties, have given anxious consideration to the submissions made and have gone through the evidence certified copies of which have been appended with the petition.
7. While decreeing the suit for recovery of dowry articles, the learned Judge Family Court, at page 11 of the impugned judgment, came to the following conclusion:- it ...I am of the humble view as the defendant has no knowledge about the details of dowry articles given to the plaintiff, so, it is hereby considered to be admitted that the plaintiff was given all the dowry articles as per list attached wit'the plaint" While affirming the afore-referred finding of the learned Judge Family Court, the learned Additional District Judge, at page 8 of the impugned judgment, held as under:-- " First of all there is contradiction in the statements of D.Ws., yet the appellant concedes that he never even know what was given in dowry articles proving the contention of the respondent that she was denied to use her dowry articles, because if the dowry articles were utilized by the respondent, the husband, i,e, appellant would have known exactly that the same were given. The denial statement of the appellant is based on mere version as he himself conceded that he did not know the details of the dowry articles, so how could he come to the conclusion that dowry articles were for the value of Rs,3-lacs only and not as claimed by the respondent.......
8. In proof of her case, respondent-plaintiff had produced three witnesses. She herself appeared as P.W.1. Her aunt Mrs. Perveen Atif, appeared as P.W.2 while her father Zufliqar Hussain entered the witness box as P.W.3. On the other hand, petitioner-defendant produced his father Sh. Muhammad Younis as D.W.1, Pervaiz Iqbal ,Sohbi and Muhammad Iftikher (social acquaintances of both the parties) appeared as D.W.2 & D.W.3 respectively, D.W.4 is Nasir Mehmood who is too a social acquaintance, D.W.5 is Muhammad Afzal Sheikh (father of the petitioner-defendant) while petitioner himself appeared as D.W.6.
9. In the suit for recovery of dowry articles, the respondent-plaintiffs had given a detailed list of the dowry articles besides Honda Civic Car Model 1995 which, according to her, was given as dowry to her by her parents and was lying at the house of petitioner-defendant. This list included furniture, electronic goods, fridge, Air-conditioner, VCR, mircowaves oven, cooking range, washing machine, five gold jewellry sets, wrist watches, diamond rings, gold cuff links, crockery, three dinner sets, decoration pieces of crystal, blenders etc. And the total value was Rs,18,00,000. In reply to para. 4 of the plaint, petitioner defendant gave a rather evasive answer and stated "the list of jewellry articles is self prepared by the plaintiff indicating no price of the articles therein and as such is not based on facts. Even otherwise no receipt of any kind has been acknowledged by either the answering defendant or her parents".
10. While appearing as P.W.1 respondent-Plaintiff candidly stated that the total value of the dowry articles in question would be about Rs,18,00,000 while her father, appearing as P.W.3, assessed the value, other than Honda Civic Car, as Rs,11.00,000. The Car, according to him,, valued Rs,6,00,000.
Both these witnesses were subjected to lengthy cross-examination but not a single question was asked about the total value of those articles as given by the afore- referred witnesses. Thus the value assessed by the respondent-plaintiff was not challenged in the cross-examination. It is by now a well-settled principle of appreciation of evidence that if a certain part of the examination- in-chief was not challenged, the same would be deemed to have been admitted as true by the defendant. In Muhammad Akram v. Mst. Tasnim Akhtar 1987 CLC 106, the decree for payment of money instead of return of dowry articles, where the value of those articles as given by the plaintiff wife had not been seriously contested, was upheld. At page 183, was observed as under:-- "4. Contention of the learned counsel is that even though there is no evidence on the record with regard to the particulars of the articles of dowry of the respondent yet, the proper course for the Courts below was to have passed a decree for the return of those articles which could be held to have been brought by her to the house of the petitioner but a decree for payment of Rs,20,000 to her, was not justified because there is no evidence led to the effect that their value could be so much. This argument has not impressed me for the reason that the litigation has remained pending below for over four years but neither in the suit nor in his appeal, did the petitioner at any stage either enter contest with regard to the valuation put by the respondent on her dowry articles or state the value of the articles ultimately admitted by him. Since, on the record a definite finding could not be reached about the particular articles of her dowry, even admitted the petitioner, therefore, it could not be possible to separately assess the value of such articles and since the petitioner had not entered contest with regard to value of any of the articles of her dowry, therefore, the Courts below have not committed any error in accepting her claim to decree her suit for the value of Rs,20,000. Petitioner cannot be allowed to urge an unleaded case at this statement his contention is accordingly repelled."
11 It is not denied by the petitioner-defendant that the respondent-plaintiff had brought Honda Civic Car Model 1995 alongwith the jewellry articles at the time of marriage. It was alleged in the plaint that the said car was sold away by the petitioner-defendant and he misappropriated the sale proceeds. Since, admittedly, the car was brought by the respondent-plaintiff to the house of her in-laws, the petitioner-defendant should have produced some evidence in rebuttal to show that she herself had sold the car in absence of which the concurrent findings of fat arrived at by the Courts below cannot be interfered with in the extraordinary Constitutional jurisdiction of this Court.
12. The argument of the petitioner's learned counsel that the Courts should have directed the return of the articles rather than payment of the money in lieu thereof is concerned, is untenable at this stage. Firstly, because no such prayer has been made in the entire body of the petition. Secondly, the parties are litigating for the last more than two years and if petitioner wanted to return those, there was nothing to prevent him and admittedly efforts for amicable settlement failed. Thirdly, the parties have divergent stand qua the list of those articles. In Major Milton Godwin Shamas v. Mst.
Crenza Samuel (NLR 1985 SCJ 128), while upholding the judgment of this Court, in similar circumstances, the Apex Court, held as under:-- The High Court was sympathetic to this submission and directed that inspection should be allowed so the respondent of the items of dowry which the petitioner was prepared to return.
However, instead of allowing the inspection to the petitioner, it transpired that he had taken the articles to Abbottabad, to which station he had, in the meanwhile been transferred. In these circumstances, the High Court came to the conclusion that the petitioner was not serious in returning the articles of dowry and finding that there was no jurisdictional defect in the orders passed by the Courts below, dismissed the petition. Hence, this petition for leave to appeal."
13. Sitting in Constitutional jurisdiction the Court has to keep in mind that it is not a Court of appeal against a finding of fact. Both the Courts below while decreeing the suit, and dismissing the appeal, took note of every material evidence brought on record. Learned counsel for the petitioner has failed to point out any piece of evidence or part of record, which, according to him, has been misread or over-looked either by the learned trial Court or by the learned Appellate Court. That being so, the concurrent judgments and decrees do not warrant interference in this extraordinary jurisdiction. This petition, having no merit, is accordingly dismissed with no order as to costs.