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Petitioner: ANISUR REHMAN VS Respondent: SHEHLA FATIMA
1988 C L C 1888
1988 C L C 1888
[ Karachi]
Before Naimuddin, CJ
ANISUR REHMAN and another‑‑Applicants
versus
Mst. SHEHLA FATIMA‑‑Respondent
Civil Revision Application No.286 of 1987, decided on 8th December, 1987.
(a) Civil Procedure. Code (V of 1908)‑‑
‑‑‑S. 115‑‑Revisional jurisdiction against findings of fact‑‑Challenge to such findings in Revision‑‑Maintainability of‑‑Where issues framed in suit were. issues of fact and findings thereon became final and conclusive on passing of judgment by Lower Appellate Court, High Court declined interference against such findings . in exercise of revisional jurisdiction.
(b) Dowry and Bridal Gifts (Restriction) Act (XLIII of. 1976)‑
‑‑S. 3‑‑Civil Procedure Code (V of 1908), S.115‑‑Suit for recovery of articles or value thereof against husband‑‑Effect of provisions of S.3 of Dowry and Bridal Gifts (Restriction) Act on such suit‑‑Parents .of wife at time of marriage, had given her dowry articles, clothes, and ornaments but same were not given to applicant husband pursuant to any contract‑‑Such articles were given to wife by her parents and husband unauthorisedly came into possession thereof‑‑Husband .was bound to return the same or pay value thereof, to wife‑‑Husband could not deprive his wife of articles even though same were given to her in contravention of provisions of S.3 of Dowry and Bridal Gifts (Restriction) Act‑‑If there was any breach of law by parents of wife, husband could not take advantage of same or deprive wife of her property‑‑Neither any plea as to breach of provisions of Act XLIII of 1976, was taken in written statement nor any issue was framed thereon‑‑Such plea could not be taken at revisional stage by husband as wife would have no chance to meet the same.
Mumtaz Ahmed Shaikh for Applicants.
ORDER
This revision application under section 115, C.P.C. is from the judgment and decree dated 16‑11‑1987, passed by the learned IV Additional District and Sessions Judge, West Karachi, whereby, he dismissed the Civil Appeal under section 96, C.P.C. being No.43 of 1987, filed by the applicants/ defendants against the judgment and decree dated 16‑2‑1987, passed by the Senior Civil Judge, West Karachi, in Suit No.1449/1985, in the following circumstances.
2. The respondent /plaintiff filed a suit against the ,applicants/ defendants for recovery of dowry articles as per annexure or for Rs.24,216 being the value of the articles.
3. The applicants/ defendants in the written statement denied that any articles belonging to the respondent were in their possession' or they were liable to pay the value thereof.
4. On the pleadings of the parties the following issues were framed:‑
(1) Whether all golden ornaments and wearing articles including others were in the possession of the plaintiff?
(2) Whether the plaintiff has been deprived of her dowry articles by the defendants?
(3) What should the decree be?
5. All the issues were decided by the learned Senior Civil Judge in favour of the respondent.
6. The appeal against the same also failed. The applicants have filed this revision .application .
7. I have heard Mr. Mumtaz Ahmed Shaikh, Advocate for the applicants.
8. The two issues framed in the suit were issues of fact and the findings thereon became final and conclusive on the passing of the judgment by the lower appellate Court.
9. The learned counsel for the applicants has, however, submitted that the judgment and decree passed against applicants is in disregard of section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976, as the value of the dowry and bridal gifts exceeded Rs.5,000. This submission is based on misapprehension of facts as the respondent had filed the suit for recovery of articles belonging to her or for recovery of the value thereof. There is no doubt that the respondent stated. in the suit that at the time of marriage, her parents had given her dowry articles, clothes, ornaments mentioned in the list of dowry but these were not given to the applicants or applicant No.l who was married to the respondent. It may be pertinent here to refer to Section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976, which reads as follows:
3. Restriction on Dowry, Presents and Bridal Gifts.‑‑(1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees.
(2) No dowry, bridal gifts or presents may be given before or after six months of Nikah, and, if Rukhsati takes place fume time after Nikah, after six months of such Rukhsati."
10. The learned counsel submitted that since the articles were given in contravention of Section ' 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976, they. could not be recovered. Mr. Mumtaz Ahmad Shaikh, the learned counsel for the applicants relied on a case from Indian Jurisdiction namely, Ramekbai Singh and others v. Harhar Sing and others (A I 3 1962 Pat. 343), wherein, it was held:
(17) From the review of the authorities, the following legal position emerges:
(1) A person, who has entered into a contract forbidden by law and paid some money or delivered some goods to the other party in pursuance of the contract, cannot sue on the basis of the contract, to recover the money or the goods; and
(2) a person, who has entered into an executory contract and has paid some money or delivered some goods to the other party in pursuance of the contract, may recover the same by a suit before the performance of the contract, provided that he has repented for having entered into the contract, by withdrawing from the same before its performance. But he is not entitled to recover the same when the performance of the contract is frustrated by some unexpected event or by any act on the part of the other party or a third party.
Applying this principle to the present case, it is manifest that the plaintiffs/ respondents are not entitled to recover any sum out of the tilak was void under the provisions of the Bihar Dowry Restraint Act. Such a contract is distinct from an executory contract in which case a party to the contract may express his repentance by withdrawing from the same before performance of the marriage. The contention of the appellants must, therefore, succeed in the present case."
But this case has no application to the facts of the present case for the reason that no property was given by the parents of the respondent to the applicant pursuant to any contract nor did they seek to recover the same from the applicants.
10. Now, since no articles of dowry were given to the applicants and the same were given to respondent, therefore, the applicants, who unauthorisedly came into possession thereof were bound to return the same or pay value thereof to the respondent.
11. The applicants could not have deprived the, respondent of the articles, even though the same were given to her in contravention of the provisions of Section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976. If there was any. breach of the law by the parents of the respondent the applicants cannot take any advantage of the same or deprive the respondent of her property. Further, no such plea was taken in the written statement and nor was any issue framed thereon. The respondent had no opportunity to meet the same. The' decree against the applicants was, therefore, properly passed.
12. I, therefore, find no merits in this revision application and dismiss it in limine.
A . A . / A‑286/ K Revision dismissed.