Syed MUNIR HASSAN Versus SHAMSA SAFDAR

1. The appellant through this IInd Civil Appeal has challenged the judgment of 1st Appellate Court passed by IIIrd Additional District Judge, Karachi East in Civil Appeal No.82 of 1997 whereby .he maintained the judgment and decree dated 22-11-1997 passed by learned IInd Senior Civil Judge, Karachi East in Suit No.1140 of 1994 who decreed the suit filed by respondent for the recovery of Jahaiz/dowry and gift articles.

2. The facts briefly stated are that the appellant had married with respondent on 23-5-1993 under the Shia Sect of Islam. Dower amount was fixed at Rs.14,000. At the time of marriage the parents of respondent/plaintiff (hereinafter referred to as the respondent) had given dowry articles to her, including golden ornaments, watches and other articles mentioned in the list. She was also given other valuable articles including cash by her brothers and other relatives valued at Rs.3,00,000. Beside that, father of appellant had given Saving Certificates of Rs.1,00,000 to her. On the second day of Valima, the appellant took away golden ornaments and Saving Certificates of Rs.1,00,000 while she was sleeping. It is further averred that defendant/appellant (hereinafter referred to as the appellant) and his father made more demand of Jehaiz money and valuable articles such as car air-conditioner and they imposed restrictions upon the movements of respondent. As such after 22 days of the marriage she was turned out from the house of appellant. After that in September, 1993 the respondent filed a suit for dissolution of marriage by way of Khula' bearing Suit No.90 of 1993 against the appellant. The appellant also filed suit for conjugal rights bearing No.638 of 1993 as a counterblast to the aforesaid suit. Ultimately the suit of appellant for conjugal rights was dismissed on 25-4-1994 whereas the suit of respondent for dissolution of marriage was decreed. In consequence thereof, the respondent served legal notice upon the appellant for return of dowry articles but no response was given. She therefore filed a suit bearing No. 1140 of 1994 in the Court of IInd. Senior Civil Judge, East Karachi with the following prayer:----

(i) Grant of judgment and decree in favour of the plaintiff and against the defendant.

(ii) Return of articles of personal properties of plaintiff, gifts, golden ornaments, Salami valued at Rs.3,00,000 and Rs.1,00,000 in the same condition total amount of Rs.4,00,000 under complete packing or in cash in the case of any damage/damages.

(iii) Return of books of the plaintiff of B.Sc. Hon. Which are under the custody of defendant.

(iv) Cost of the suit.

(v) Any other relief .

3. After service, the appellant filed written statement whereby he denied the pleas urged by respondent in her suit. He pleaded that the list of dowry articles attached with the plaint was false and fabricated. He further stated that he had not only given the Saving Certificates of Rs.1,00,000 but also paid Rs.51,000 in cash besides the prize bonds worth Rs.50,000 a Salami. The demand of car, air-conditioner or any other amount as allege by the respondent was however, totally denied. He also denied that an restriction was put upon the movements of respondent. He specifically denied that the respondent brought dowry articles as per list attached with the plaint and stated that she only brought 7 pairs of clothes, 5 pair of shoes, on Holy Qur'an, one box, one central table, one side table, one dressing table and the above articles are still lying in the house of the appellant for which he requested to the father of the respondent to take the said articles but instead of it she filed this suit. It was further stated that respondent had n cause of action and prayed that her suit was liable to be dismissed.

4. From the pleadings of the parties the learned trial Court on 22-5-1995, settled the following issues:--

(1) Whether the plaintiff's parents given the dowry articles, gift including golden ornaments, watches and Salami etc. as specified in para.2 of the plaint?

(2) Whether the defendant had removed all the golden ornaments an Saving Certificate of Rs.1,00,000 on the very second day of Valima?

(3) Whether the defendant has retained the dowry articles, golden ornaments watches and other properties as claimed by the plaintiff.

(4) Whether the plaintiff is entitled for return of dowry articles and her personal properties or value thereof?

(5) What should the decree be?

5. The parties adduced their evidence in the trial Court and ultimately the suit of the respondent was decreed.

6. Being aggrieved by the aforesaid judgment and decree, the appellant preferred 1st appeal in the Court of District Judge, East Karachi which was heard by learned IIIrd Additional District Judge, Karachi East who by its order dated 17-2-1999 dismissed the appeal filed by appellant.

7. Against that order the appellant has preferred this IInd appeal.

8. I have heard Mr. Sheikh Muhammad Usman for the appellant and Mr. A.K.Azmati for the respondent.

9. It is contended by learned counsel for appellant that the dowry articles list has not been signed by the appellant. The cash memo. bill produced by the respondent in support of her case were forged an fabricated. It is urged that author of the list has not been examined. No independent witness has been examined by the respondent. Her brother Asif Safdar who had given gifts to his sister has also not been examined. Learned counsel has further urged that the evidence has not been properly assessed and examined by the two Courts below which has caused miscarriage of justice. The reliance is placed upon the cases of S.M. Yousuf v. S.K. Rahim and others PLD 1969 SC 77; Muhammad Aslam v. Mst. Ferozi (deceased) through L.Rs. PLD 2001 SC 213; Niamatullah Shah v. Farmanullah and another 1980 SCMR 953; Ghulam Hyder Siddiqui v. Settlement Commissioner, Sindh and others 1998 SCMR 25; The State v. Muhammad Iqbal Basra NLR 87 AC 34 and Abdul Majeed and 6 others. v. Muhammad Subhan and 2 others 1999 SCMR 1245

10. On the other hand learned counsel for respondent argued that suit of dissolution filed by the respondent had been decreed and suit of conjugal rights filed by the appellant was dismissed. She remained with her husband for 22 days only and she was deprived of her all the valuable articles. It is stated that Jahaiz list is never signed by the bridegroom and its preparation is only formality which is not supposed to be signed on the day of marriage in order to avoid misunderstandings between the parties on the very first day of marriage. It is submitted that the appellant has not come in witness-box to rebut the allegations levelled against him.

11. It is manifest on the record that the suit was simply for return of Jahaiz/dowry and gift articles for which the evidence was adduced by the parties and has been assessed and examined by the two Courts below. No jurisdictional defect has been pleaded nor any legal point has been raised before me. The only grievance of the appellant is that Jahaiz list was not signed by the appellant. That is not customary in our society to get, the Jahaiz list signed from bridegroom so as to avoid the controversies on the very first day of marriage. The cash memos., list of Jahaiz and the oral evidence by respondent has been appreciated by the two Courts below and the findings are concurrent. Furthermore the appellant did not come forward to examine himself in, rebuttal of the testimony of respondent. The father of appellant was living separately from 'him and therefore his evidence was of no, consequence.

12. The case-law cited at the bar by the learned counsel for appellant is distinguishable and has no relevance to the facts and circumstances of the instant case.

13. For the foregoing reasons, I do not find any illegality or infirmity in the impugned judgments and they need no interference. This second appeal is merit-less and stands dismissed with no orders as to cost.

14. M.B.A./M-522/K Appeal dismissed.