IN THE HIGH COURT
OF SINDH, SUKKUR BENCH, SUKKUR
C.P
No. S-346 of 2019
Petitioner: Mst.
Kishwar D/o Mushtaque Ahmed, through Mr. Safdar Ali Bhatti, Advocate.
Respondent No.1: Muhammad Usman S/o
Muhammad Munshi through Mr. J.K. Jarwar, Advocate.
Date of hearing: 01.11.2021
Date of decision: 01.11.2021
O
R D E R
Zulfiqar
Ali Sangi, J: Through this petition, the
Petitioner seeks following reliefs:-
a)
That this Hon’ble Court may
graciously be pleased to set-aside the judgments and decrees passed by learned
Courts below dated 06.03.2019 and 19.10.2019 and decree the suit of the
Petitioner/ plaintiff as prayed in the larger interest of justice”.
2. Learned Counsel
for the Petitioner, at the very outset, contended that both learned lower
courts have erred in passing the impugned judgments and decrees; besides failed
to take into consideration the factual and legal aspect of the case; that the
impugned judgments and decrees passed by learned lower Courts are based upon
presumptions, assumptions and conjectures; that both the Courts have failed to
determine the income of Respondent No.1 by awarding Rs.8000/- as maintenance of
minor and Rs.15000/- for Iddat period
of petitioner is not sustainable under the law; that the judgments and decrees
are based upon misapplication, misreading and non-reading of legal provisions
of law as well. Main contention of learned counsel for the petitioner is that
while deciding thew appeal of petitioner appellate court at first instance has
allowed the appeal and at second maintained the judgment of the trial court
therefore the petitioner is entitled to word allow, hence prayed that instant
petition may be allowed as prayed and the judgments and decrees passed by
learned lower Courts may be set-aside and suit of the petitioner may be decree
as prayed.
3. Learned Counsel
for the Respondent No.1 contended that learned lower Courts have rightly passed
the impugned judgments and decrees by considering all the factual and legal aspects
of the case whereby claim of the Petitioner was considered to the extent of
dowry articles as mentioned in Nikahnama as well as maintenance; however her
claim with regard to other unannounced dowry articles, which neither had
accompanied with the Petitioner at the time of Rukhsati nor she mentioned the
same in her written statement in earlier suit for Restitution of Conjugal
rights filed by the Respondent No.1, hence submits that instant petition, being
misconceived, is liable to be dismissed with cost.
4. I have heard
learned Counsel for the Petitioner and Counsel representing the Respondent No.1
and have carefully examined the material available on record with their able
assistance.
5. From perusal of
the available record it reflects that the petitioner file suit for maintenance
and recovery of Dower under section 7 of the family court act and after the
said plaint the amended plaint was also filed which reflects that suit was
filed for the Maintenance, Dower and Return of Dowry articles. The suit was
contested by the defendant/respondent and after recording the evidence of both
the parties the suit was partly decreed in favour of the petitioner.
6. The petitioner filed
family appeal against the judgment and decree of the family court bearing
family appeal No. 13 of 2019 whereas the respondent No.1 also filed appeal
bearing family appeal No. 12 of 2019 against the same judgment and decree. The
appellate court Additional District Judge Kandiyaro after hearing the parties
dismissed the appeal of the respondent No. 1 and also disposed of the appeal of
the petitioner on the same day viz 19-10-2019. It is observed that though the
appellate court mentioned in the end of judgment as appeal allowed but the
findings given in the judgment are of dismissal and it is further clarified in
the said judgment after the word allow is mentioned “while maintaining the judgment
and decree dated: 06-3-2019 passed by the trial court” . To clear this
point as to whether the appeal of petitioner was allowed or dismissed by the
appellate court, the findings of appellate court on point No.1 & 2 are
reproduced as under:-
POINT NO;1
Perusal of record and
proceedings of learned trial court shows that the plaintiff/appellant in order
to prove her case she has examined P.W Pervez Ali, P.W Mushtaque Ahmed and P.W
Muneer Ahmed Abbasi (Sub-Registrar Mehrabpur) who in their evidence have
supported the case of appellant/plaintiff as well as she has produced oral as
well as documentary evidence in respect of her case as the defendant/respondent
has given the shop to the appellant/plaintiff in dower through registered sale
deed bearing No:948, executed by the defendant/respondent and his brother
Muhammad Irfan in favour of appellant/plaintiff which is also available in the
record of R&Ps of learned trial court as Ex:19-B. In this connection
evidence of Muneer Ahmed (Sub-Registrar
Mehrabpur at Kandiaro) was recorded by the trial court as Ex:24, who produced
attested photo stat copies of entry No:1679/2015 of T-P register (VIII), which
clearly showing the names of Transferee Muhammad Irfan and Muhammad Usman
(present respondents/defendants) both sons of Haji Muhammad Munshi, same
documents are also available in the record of R&Ps of trial court as
Ex:24-A, Register entry bearing R.D No:1615 is also available in the record of R&Ps
as Ex:24-B. It is also admitted fact that during course of recording evidence,
the defendant/respondent admitted in his cross examination regarding transfer
of shop by him as Dower to plaintiff/appellant through registered sale deed.
The said cause is also clearly mentioned in column No:16
of the Nikahnama which is also available in the record of R&Ps as Ex:19-A.
So far as the question of some house hold articles as claimed by the
appellant/plaintiff is concerned. In
support of the same the father of the appellant/plaintiff Mushtaque Ahmed was
examined by the trial court as Ex: 21, who fully
supported the version of plaintiff/appellant in his evidence. Therefore, I am
of view that the learned trial court has rightly partly decreed the suit of
appellant/plaintiff while giving its findings on the issues after discussing
all aspects of the case, hence, the same requires no
interference by this court. This point No:1 is
therefore, answered accordingly.
POINT NO:2
In view of my findings
on the point No:1 I hereby allow this appeal while maintaining the judgment and decree
dated 06.03.2019 passed by the trial court with no order as to costs besides
leaving the parties to bear their own costs.
7. From perusal of
view taken by the appellate court in the points re-produced above, it is clear
that the intention of the appellate court was to dismiss the appeal, however,
the word appeal allow is typed. If this is or is not the position then the
petitioner has a remedy to approach the appellate court by filling application
under section 152 C.P.C, for which petitioner has not approached the appellate
court and filed instant petition. For ready reference section 152 C.P.C is
reproduced as under:-
152. Amendment of judgments, decrees or orders. Clerical or arithmetical
mistakes in judgments, decrees or orders or errors arising therein from any
accidental slip or omission may at any time be corrected by the Court either of
its own motion or on the application of any of the parties.
8. Learned counsel for the petitioner is unable to point
out any other error or illegality in the impugned judgment and decree of the
trial court so also the appellate court which are based on sound reasons and
passed after appreciation and reappraisal of the evidence produced by the parties
and the same are not need to be interfered by this court in constitutional
jurisdiction. Resultantly, instant petition is dismissed.
9. These are the reasons of my short order dated: 01-11-2021,
which reads as under:-
Heard
learned counsel for the petitioner and counsel for the Respondent No.1 as well.
For the reasons to be recorded later on, instant petition is dismissed.
JUDGE