PLJ 2006
(i) Constitution of
----Art. 199--Availability of remedy of writ in suit for recovery of dowery articles--Validity--As a substitute for the appeal or revision with regard to those decrees for which legislature in its wisdom, has closed remedy of appeal or revision through statutory provision--Exercise of jurisdiction under Art. 199--There must be grave injustice being done to the parties to the proceedings--Petition dismissed. [Pp. 36 & 37] A, B & C
(ii) Customary Law--
----Recovery of dowery articles--Contention of--No dowery has been given to the plaintiffs/respondent at time of marriage--Petitioner failed to prove the statement--Held: Parents of girl had given nothing in dowery to her daughter at the time of her marriage as it is being a custom in Pakistan which is based upon tradition of our Prophet, Muhammad (P.B.U.H)--Petition dismissed. [P. 37] D
Malik Javed Akhtar Wains, Advocate for Petitioner.
Date of hearing : 1.12.2004.
PLJ 2006 Lahore
[Multan Bench Multan
Present: Sh. Hakim Ali, J.
MUHAMMAD RAMZAN--Petitioner
versus
JUDGE FAMILY COURT KEHROR PACCA DISTT. LODHRAN
and another--Respondents
W.P. No. 5593 of 2004, decided on 1.12.2004.
Order
Mst. Kalsoom, Respondent No. 2, had filed a suit for recovery of dowry articles or in the alternative awarding of their price amounting to Rs. 47,400/-, before the learned Judge Family Court, Kehror pacca. The suit was contested by the defendant/petitioner. Issues were framed and learned Judge Family Court passed a decree on 28.2.2004 with regard to the return of dowry articles or in the alternative to pay their price equivalent to Rs. 25,000/- in favour of plaintiff/Respondent No. 2. The aforesaid judgment and decree has been challenged through this writ petition.
2. Petitioner's learned counsel submits that the plaintiff had not brought any dowry articles at the time of marriage. She was not able to give out the details of all the dowry articles allegedly delivered to her in her statement. There was no evidence/corroboration to the statement of the plaintiff and the evidence brought on the record was not properly appreciated by the learned Court below. Therefore, the impugned judgment and decree requires to be set aside.
3. After considering the arguments of learned counsel for the petitioner and from the perusal of the record, it may be pointed out that the remedy of writ cannot be made available, accessible or outstretched as a substitute for the appeal or revision with regard to those decrees for which the legislature in its wisdom, has closed the remedy of appeal or revision through statutory provision. If the relief/remedy of Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is extended to such decrees, it would be creative of an impression that for a decree of meager amount, an extra ordinary remedy (writ petition) is available from a superior Court (High Court) while of a decree of huge and large amount, the appeal and that before the subordinate Court can only be availed of. Meaning thereby, the intent of the legislature to grant the finality to the decision of learned Judge Family Court, especially to a decree passed up to the extent of an amount of Rs. 25,000/- with regard to the dowry articles in favour of wife would be tarnished. As the decree has been passed in the instant case to the extent of Rs. 25,000/- so, this writ petition cannot be maintained. I have got support to form this opinion from the following judgments:--
"1996 SCMR 1165 (Syed Saghir Ahmad Naqvi vs.
Although the above mentioned decisions were emanating from interlocutory orders yet principle would be the same.
4. By raising an objection of incorrect appreciation of evidence, learned counsel wants this Court to evaluate and appreciate evidence brought on the record by the parties, which is not the function of this Court, to take exercise of it, in this extra ordinary jurisdiction. There must be grave injustice being done to the parties to the proceedings, so as to attract the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Deposition of a party in a family case can be held sufficient if that statement inspires confidence. The statement of Mst. Kalsoom has raised such an impression after my examination. The other witness PW.2 Zahoor Ahmad has explicitly deposed that the dowry articles were lying with the defendant/petitioner. The question asked from that witness as to what articles were delivered by the parents of the plaintiff to the plaintiff at the time of marriage and reply of his ignorance cannot be considered as the denial of the delivery of dowry articles to the plaintiff. In fact the aforesaid witness wanted to depose that he had no knowledge about the details of dowry articles because it was a matter of concern of the ladies, but from this suggestion and reply, it cannot be inferred and held that articles of dowry were not delivered. In another place, he has clearly stated that the dowry articles were in the possession of the defendant. So, it has been corroborated from the statement of that witness that the dowry articles were delivered to the plaintiff and were lying and kept in the custody of the defendant/petitioner. In normal course, it is also not believable that parents of any girl had given nothing in dowry to her daughter at the time of her marriage as it being a custom in this Country which is based upon the tradition of our Prophet, Muhammad (P.B.U.H) So, learned Judge Family Court having appreciated the evidence with correct perception the judgment and decree passed cannot be set aside. The writ petition is, therefore, dismissed in limine.
(H.A.) Petition dismissed
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