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Petitioner: DANIAL SHAFQAT VS Respondent: NASREEN
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed Title: DANIAL SHAFQAT vs NASREEN Case No.: Civil Revision No,209 of 1998 Date of Judgment:1998-01-21 Reported As: 2005 YLR 1185 Result: Order accordingly
JUDGMENT
JUDGMENT ' This revision petition under section 115, C.P.C. Has ,been directed against judgment and decree, dated 30-6-1997 passed by learned Civil Judge-I, Quetta and against judgment and decree, dated 25-4-1998 passed by learned Additional District Judge-II, Quetta whereby respectively suit filed by the respondent for recovery of dowry articles has been decreed in her favour and appeal preferred against the decree of trial Court, has been dismissed by the Appellate Court. 2. The brief facts of the case relevant for the disposal of the instant petition are that the respondent instituted suit for recovery of Rs,70,000 and dowry articles worth Rs,2,00,000 or in the alternative for the value thereof, against the petitioner on the stated averments that at the time of marriage of the respondent with the petitioner, her parents had given 'Jahez'/dowry articles valuing Rs,2,00,000 such as house-hold articles, furniture, jewellery and other ancillary items, who also incurred an amount of Rs,1,00,000. It is the case of the respondent that after marriage relationship between the spouses remained normal only for two months and thereafter on account of the ill-conduct of the family members of the petitioner, she was met with a great hostility and ultimately the respondent was turned out from the house by the end of October, 1993 whereupon she in a miserable condition took shelter with her parents and since then she is residing with them. Further the case of the respondent is that her parents subsequent to the marriage also paid an amount of Rs,70,000 to the petitioner and his family members to purchase a house as desired by him or to run any business and; ultimately in the above mentioned circumstances she demanded from the petitioner to return her dowry articles and Rs,70,000 given to him by her parents but the petitioner neither paid the amount nor returned the dowry articles withheld by him.
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' The petitioner contested the suit by means of their written statement filed in Court wherein the claim of the respondent as mentioned in para. No,2 of the plaint that her parents at the time of marriage spent an amount of Rs,1,00,000 besides dowry articles valuing Rs,2,00,000 were given to such as; house-hold article's, furniture, jewellery etc. Repudiated and it has been contended that the respondent was in habit of leaving the house of the petitioner and in his absence she once left the house and took away jewellery and other valuable articles besides cash amount of Rs,50,000 and thereafter she never returned. It has further been contended that the respondent was never annoyed or maltreated by the petitioner nor any of his family members and the allegation to the contrary contained in the suit were repudiated. The petitioner in answer to the contents of the para. No,7 of the plaint again repudiated the claim of the respondent that dowry articles worth Rs,2,00,000 was given to the respondent by her parents at the time of marriage or that Rs,70,000 was given to him by her parents. 3. The learned trial Court out of the pleadings of the parties on 18-3-1996 framed the following issues:--- "(1) Whether the suit is not maintainable in view of legal objections 'C', 'D' and 'H'? (2) Whether the suit is not maintainable in view of legal objection 'H'? (3) Whether the plaintiff is entitled for Rs,70,000? (4) Whether the plaintiff is entitled to the relief claimed? (5) Relief?" Respondent in support of her case produced 6 witnesses namely Iqbal Masih (P . W . 1), Channa Masih (P . W . 2), Sheikh Ghulam Muhammad (P.W.3), Yusuf Masih (P.W.4), Salim Masih (P.W.5) and Santha Masih (P.W.6). The respondent plaintiff appeared as her own witness. The petitioner in rebuttal to evidence produced by the respondent on issues Nos.3 and 4 produced 3 witnesses namely Almas Dawar (D.W.1), Amanuiel Shaukat (D.W.2) and Danial James (D.W.3) and the petitioner recorded his statement. 5. After close of the parties evidence the learned trial Court vide judgment and decree, dated 30- 6-1997 impugned herein decreed the suit in favour of the respondent to the extent of alternate claim for the value of the dowery articles i.e,; Rs,2,00,000 however; rejected the claim of the respondent for the recovery of Rs,70,000. Respondent/plaintiff did not challenge the decree of the trial Court to the extent of the implied refusal to allow the claim of the respondent for Rs,70,000 as lodged in the suit. The petitioner being dissatisfied with the decree of the learned trial Court assailed the same in appeal in the Court of learned District Judge, Quetta which was sent to the file of learned Additional District Judge-11, Quetta and registered as Civil Appeal No,38 of 1997 with the transferee Court. The learned Additional District Judge-II, Quetta after hearing the parties vide judgment and decree, dated 25-4-1998 dismissed the appeal of the petitioner and both these decrees have been assailed in the instant revision petition. 6. The learned counsel for the parties have been heard at length, Mr. Naeem Akhtar contended that:--- (a) The learned trial Court on the basis of inadmissible evidence received wrongly by the Court determined the value of the stated dowry articles, thus findings of the trial Court in such behalf are not sustainable. (b) Stated receipts of the dowry articles relied upon by both the Courts below have not been proved through evidence as required under the law hence such documents are not admissible in evidence and the same are liable to exclusion from consideration. (c) To a great extent photocopies of the documents found basis with the Courts below to conclude about the stated dowry articles and the value thereof and such documentary evidence was not admissible for want of requisite conditions existing for production of secondary evidence.
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(d) Impugned decrees are not sustainable, in case inadmissible documentary evidence is excluded from consideration. (e) Admissibility of the documentary evidence was objected to during the course of hearing of the appeal but such question has been resolved on the wrong application of law both the Courts below illegally and improperly placed reliance on inadmissible evidence and the wrong admission of documentary evidence without objection, will not be the proof of the contents of the document. (f) Proof of the contents of the documents wrongly admitted in evidence has to be independently established by the respondent and the execution of document improperly admitted in evidence will not be the proof of the contents of such documents and both the Courts below erred in law by placing reliance on the documentary evidence produced by the respondent. - (g) Oral evidence with regard to the value of each dowry article is lacking and the total value of such articles given by the witnesses is in conflicting with the total value of the articles as per documents admitted in evidence, inasmuch as; the value of the stated dowry articles are much less than the one decreed by the Court. (h) Oral evidence with regard to the delivery of stated dowry articles and the alleged value thereof produced by the respondent is conflicting, inconsistent and discrepant, as such, no reliance can safely be placed on the evidence of the respondent and which did not justify for the decree passed by the trial Court. (j) Both the Courts below have misread and non-read material pieces of evidence available on record, as such decrees impugned, are not sustainable, the learned counsel submitted that the documentary evidence produced by the respondent is liable to be excluded as being inadmissible and the case to be remanded to the learned trial Court to decide the same afresh in view of oral evidence on its merits. He placed reliance on the reported judgments i.e, PLD 1988 Karachi 131, 1987 CLC Karachi 798, 1981 CLC Lahore 1082 and 1989 CLC Quetta 1187. 7. Mr. Ikhlaq Ahmed, the learned counsel for the respondent contended that:-- (a) The documents were admitted in evidence without objection by the petitioner and the objection raised subsequently by the petitioner with regard to the documentary evidence produced by the respondent would not alone be sufficient to discard such piece of evidence. (b) Documentary evidence once admitted in evidence without objection is admissible and stands as valid piece of evidence with regard to the execution of such document and contents thereof. (c) Entire documentary and oral evidence available on record has been appraised by the Courts below in its true perspective and no part of evidence has been misread, misconstrued or non-read. (d) Concurrent findings of facts recorded by the Courts below are not open to any interference by this Court in the exercise of revisional jurisdiction in view of the above mentioned grounds. The learned counsel in support of his contentions placed reliance on 1988 CLC Lahore 1105; 1998 CLC 1869 and 1994 MLD 2458. 8. The contentions put forth on behalf of the parties learned counsel have been considered in the light of the record of the case and impugned judgments, which have been perused carefully. The case of the respondent is that at the time of marriage her parents gave her dowry worth of Rs,2,00,000 and also paid a cash amount of Rs,70,000 to the petitioner for the purchase of a house or to do some business with such amount, as desired by the petitioner. It ha's been explained in the plaint that dowry given to her comprised of house-hold articles, furniture, jewellery and ancilliary items, list whereof was annexed with the plaint. Further the case of the respondent is that the cordial relations did not persist long between the parties on account of the ill-conduct of petitioner and his family members, ultimately the respondent was turned out from the house by the petitioner by the end of October, 1993 whereupon, in a miserable condition she took shelter in the house of her parents, where she is residing since then whereas, the dowry articles were with held by the petitioner and he refused to restore the same to her. The petitioner contested the suit
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repudiating the claim of the respondent that her parents at the time of marriage had given to her dowry articles valuing Rs,2,00,000 such as house-hold articles, jewellery, furniture etc. And it has been alleged that the respondent was in the habit of leaving the house of the petitioner very frequently and in his absence she left the house and took away jewellery and other valuable articles besides cash amount of Rs,50,000 and thereafter she never returned and in answer to the contents of para. No,7 of the plaint he again repudiated the claim of the respondent about the dowry articles orth Rs,2,00,000 having been given to the respondent by her parents or that Rs,70,000 allegedly given to him. ' According to P.W.1 Iqbal Masih brother of the respondent/plaintiff, dowry articles worth Rs,2,00,000 were given by him to the respondent and on demand of the petitioner, his father had also paid a cash amount of Rs,70,000 to the petitioner and articles as per his given detail were given to the respondent. He also produced receipts about the purchase of dowry articles as Exh.P/1 to Exh.P/7. On cross-examination by the petitioner's learned counsel, the witness stated that articles mentioned by him were purchased in his presence. He denied the suggestion put to him that none of the stated articles were given to her nor she has taken- along the articles of 'Jahez' off and on. According to Chana Masih (P.W.2) dowry articles valuing approximately Rs,2,00,000 was given to the respondent at the time of marriage wherein he participated. According to the witness dowry articles were lying in the house of the petitioner which he had shown to him and retained by the petitioner. The witness in the cross examination part of his statement deposed that he had guessed the value of the dowry articles by seeing the same. According to Sheikh Allah Muhammad (P.W.3) he had participated in the marriage ceremony and that dowry articles worth Rs,2,00,000 approximately were given to the respondent which are lying in the house of the petitioner and in the cross examination part of his statement he deposed that the dowry xticles were purchased in his presence. Yousaf Masih (P.W.4) deposed that a large quantity of articles were given to the respondent by her parents. The witness answered the suggestion put to him in negative that the respondent off and on, had taken along the articles. Salim Masih (P.W.5) deposed that dowry articles worth about Rs,2,00,000 are still lying in the house of the petitioner. It may be noted that the evidence of P.W.5 has been discarded by the learned Appellate Court on the ground that the witness substantially contradicted himself with his previous statement, whereas, the learned trial Court did not specifically appraise the evidence of P.W.5. Santa Masih (P.W.6) is the father of the respondent/plaintiff who deposed that dowry articles worth Rs,2,00,000 were given to the respondent at the time of marriage and he produced receipts/cash memos. Pertaining to the purchase of such articles as Exh.P/8 to Exh.P/21. The witness did not admit, the suggestion put to him during cross-examination on behalf of the petitioner that the dowry articles as per above mentioned cash memos. Were not given to the respondent and that such documents are fake and forged. This witness has also mentioned about the items 25 in number containing particulars of the items given by way of dowry to the respondent. The witness further alleged that the dowry articles of the respondent are lying with the petitioner in his house and the respondent requires the same to be restored to her. ' Respondent/plaintiff deposed that in the month of October she was turned out by the petitioner from his house forcibly after assaulting her and stated that his father had given to her dowry worth about Rs,2,00,000 and on the 3rd day of marriage on demand of the petitioner, her father had given a cash amount of Rs,70,000 to the petitioner and she has also given the details of various items of 'Jahaz' articles, who further deposed that her 'Jahaz' articles are lying with petitioner and claimed that the same to be restored to her besides Rs,70,000. She denied the suggestion put to her during cross examination that her dowry articles are not lying in the house of the petitioner and that she had taken along Rs,50,000 and the ornaments given to her by the petitioner while leaving his house.
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9. According to Almas Dawar (D.W.1) he had participated in the marriage ceremony of the parties and prior to that the parents of the petitioner had expressed that they were not interested in dowry however; after marriage the respondent had brought along a few clothes, make-up items etc. And a few articles of her liking, who had been visiting to her parents off and on, and during such visits she had been taking back the dowry articles and when she finally left for the house of her parents she took along remaining ornaments besides, Rs,50,000. The witness stated in the cross- examination part of his statement that he was not present whenever the respondent had gone to the house of her parents. He admitted that in his previous statements he had not stated that the respondent had been removing the dowry articles on her visit to her parents house or when finally she took along ornaments given to her by the petitioner and the cash amount of Rs,50,000. This witness has disclosed in his examination-inchief that the petitioner is his maternal uncle. According to D.W.2 Amanuil Shaukat, no dowry was given to the respondent at the time of marriage and he being the younger brother of the petitioner had participated in the marriage of the parties on 10-9-1993. The witness in the cross-examination part of his statement deposed that the respondent has been visiting to the house of her parents and on such occasions he and the other family members were present in the house and only once he had accompanied respondent for taking her to her parents house. He denied that the respondent never took the Jahez articles to her parents house, the witness also denied that all the house-hold articles were given to the respondent in Jahez'. He further denied that the dowery articles are still lying in the house of the petitioner. Denial James (D.W.3) stated that respondent is his brother-in-law and the parties were married on 10-9-1993 and he participated in the marriage ceremony. According to the witness at the time of marriage only the clothes for the respondent and make-up articles were given to the respondent in 'Jahez' which she has already taken to her parent's house. The witness stated in the cross-examination part of the his statement that off and on, the respondent had been removing the dowry articles to the house of her parents and 5 or 6 times she had taken such articles in his- presence and finally his father and brother had taken the dowry articles to their house. The witness denied that the respondent had gone to the house of her parents in wearing clothes. He denied that dowry articles worth Rs,2,00,000 were given to the respondent by her parents. He also denied that Rs,70,000 was given to the petitioner by the father of the respondent as being the share of the respondent in the property. Petitioner Denial Shaukat deposed that he was married with respondent on 10-9-1993 and few days after the marriage relations between the spouses became strained and in the mid of November the respondent left for the house of her parents and at the time Of negotiation about the marriage proposal, the parents of respondent disclosed that they were not in position to give dowry, who however; had given a few clothes to the respondent for her use and few make-up articles which the respondent off and on, had taken along to her parents house. According to the petitioner when the respondent finally left for the house of her parents she had taken along Rs,50,000 in cash and the ornaments given to her by the petitioner. He categorically stated that no dowry article of the respondent is lying with him. He denied that dowry articles as per list were given to the respondent and added stated that fake receipts pertaining to the articles have been produced. He also denied that the articles as per list Exh.P/1 is lying in his house. The petitioner also denied that in fact dowry articles worth Rs,2,00,000 were given to the respondent. 10. The petitioner's learned counsel did not challenge the findings of the Court below recorded in respect of the issues Nos. 1 and 2 struck in view of the preliminary objections raised in the written statement therefore, findings of the Courts below on such issues are not diliated upon. It may be seen that the parties are at contest on issue No,3" and in support of the same, respondent has produced the evidence material part whereof has been mentioned herein above whereas the evidence produced by the petitioner in rebuttal in material particulars in respect of issue No,3 has
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also been noted above. Perusal of the judgment passed by the learned trial Court reveals that issue No,3 has mainly been decided in affirmative for the reason that the trend of cross- examination on P.Ws. Suggest that the value of the dowry articles as alleged by the respondent and her witnesses has not been denied by the petitioner nor questioned the same in his written statement and therefore, the learned trial Court concluded that the dowry articles valued Rs,2,00,000 and the defendant/petitioner failed to rebut the same, inasmuch as; the defendant/petitioner failed to prove that the respondent had taken back the dowry articles to her father's house and the evidence produced by the defendant that a few articles of routine use such as clothes, make-up ware were taken back by the respondent but the petitioner did not produce in evidence that the dowry articles such as furniture, refrigerator, jewellery etc. Were also taken back by the respondent to her parents house; for such reasons, the trial Court held that the dowry articles are still lying with the petitioner. The operating part of the judgmdnt of the trial Court is reproduced herein-below:--- "It is important to mention here that thereafter, the plaintiff filed an application on 10-4-1997 for the production of Video Films and vide order, dated 11-4-1997, permission was granted for the production of said video film, which were opposed till appellate Court which means there is something important in the said video movie which can go against the defendant and can support the claim of plaintiff. However, now it is not the part of record. So cannot be discussed on its merits. However, it shows that the defendant opposed it with mala fide intention. The trend of the cross- examination on P.Ws suggest that the value of the dowry articles, as given by them in examination in chief is not denied, further more in the written statement also. There is no specific denial of the dowry articles amount to Rs,2,00,000. So it can be safely held that the dowery articles, which were given to the plaintiff amounted to Rs,two lacs. This finding is also fortified through P.Ws, as the defendant has failed to rebut it. Even no suggestion was ever put to P.Ws. For challenging such claim. Beside this the defendant admitted that video film was prepared at his marriage ceremony but he strongly opposed to produce it before the Court as additional evidence, which means that plaintiff's contention is Correct that dowry articles were given to plaintiff, as it's value is not challenged by the defendant. I am satisfied, as the plaintiff proved that the value of the dowry articles are Rs, Two lacs. However, now it is for the defendant to prove that the plaintiff has taken back the dowry articles to her father's house, which is the stand taken by him. All the evidence adduced by the defendant suggest that few articles of daily use, such as clothes of make up were brought by the plaintiff, which too she had taken back, but there is no evidence with regard to other dowry articles, such as furniture, refrigerator, jewellry etc. So, it can also be safely held that these articles are still lying with the defendant, who has no justification or authority to retain these articles, when he had turned out his wife. It was his moral obligation to amicably return her dowry articles, when they both failed to live together and she was forced to knock the door of the Court for the redressal of her grievance issue is resolved in affirmative." ' As a result of the above noted findings of the learned trial Court on issue No,3, issues Nos.4 and 5 were decided in affirmative and the suit decreed in favour of the respondent. It is astonishing to note that the trial Court did not consider and appraise the evidence of the parties with respect to the claim of the parties in order to come to a just conclusion about the dowry articles if any were given to the respondent at the time of marriage or otherwise, and the value of the dowry articles statedly given to the respondent. Without discussing the evidence of the parties on issue No,2 learned trial Court has drawn the conclusion and recorded the findings on issue No,3. Bare perusal of the findings of the trial Court recorded on issue No,2 reveal that it did not consider and assess the evidence of the parties and drawn the conclusion about value of the claimed dowry articles in view of the trend of cross examination conducted on behalf of the petitioner and also presumed that the claimed dowry articles are lying with the petitioner because he did not produce evidence
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that the same were taken back by the respondent to her parent's house for taking such conclusion the trial Court has not referred to any piece of evidence rather without appraising the evidence on such point concluded so and it also failed to take notice of the fact that the petitioner in his written statement specifically denied the claim of the respondent that dowry articles worth Rs,2,00,000 were given to her by her parents and about payment of Rs,70,000 who however; alleged in the written statement that the dowry articles were taken back by the respondent off and on whenever she visited to her parent's house and on the date when she finally left for the house of her parents she had taken along Rs,50,000 in cash besides jewellery and other valuable articles, but such plea taken in the written statement does not give rise to draw conclusion that dowry articles worth Rs,2,00,000 were given to the respondent and at best the stand so taken by the petitioner in his written statement suggest that some valuable articles including jewellery were given…
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