MUSSARAT SULTANA Versus MUHAMMAD SAEED

IRSHAD HASAN KHAN, J‑ ‑‑This appeal is directed against the judgment of the learned Single Judge of Lahore High Court in second appeal.

2. The second appeal in the High Court arose out of a suit in forma pauperis against the suit instituted by Mst. Musarat Sultana appellant herein against Muhammad Saeed, her former husband for the recovery of various articles of dowry or in lieu thereof for the recovery of Rs.1,68,703 as their price. .

3. The suit was contested by the respondent/defendant. The learned trial Court, in view of the pleadings of the parties and after appreciating the evidence on record, decreed the suit to the extent of Rs.1,51,903 vide judgment dated 20‑7‑1989.

4. The respondent feeling aggrieved with the aforesaid judgment and decree, filed appeal which was dismissed by the learned Additional District Judge at Okara. Vide his judgment dated 11‑4‑1992. Dissatisfied with the aforesaid judgments, the respondent filed second appeal before the High Court which was accepted.

5. The learned Judge in Chambers while disturbing the concurrent findings of the two Courts below adopted the following reasons by reducing the claim of the decretal amount from Rs.1,51,903 to Rs.50,000:‑‑

"Parties were married in the year 1984 and with the lapse of 8. 9 years, the price of all articles of dowry, even if the same have not been used must have come down substantially. The appellant has offered to restore the major items to her, as the same are now, but she is not willing to receive and insists on the receipt of their original price. In this respect the evidence of Mst Bushra Perveen (P.W.5) is not helpful to her because, as per her statement, she collected the information about the prices of various items mentioned in (Exh. P.6) from different shopkeepers about a week prior to the institution of suit by the respondent. No shopkeeper, from whom she had gathered the information about the prevailing prices of different articles, was produced to depose about the prices and the statement of the said witness was nothing but a hearsay which cannot be even referred to, much less relied upon. So (Exh. P.6) goes out of consideration. However, the documents (Exh. P.1., Exh.P.4 and Exh.P7) stand duly proved by their respective authors and despite the criticism of appellant's counsel, decrying their genuineness. I rely on their probative value Exh. P1 is the receipt indicating the price of Exh. P.4 is the receipt showing the price of and Exh. P.7 is the receipt showing the price of. The aggregated price of these articles comes to Rs.49946 and I make it a round figure of Rs.50,000 this amount, as the interim order dated 22‑2‑1993 is indicative of was offered by the appellant to the respondent in full and final settlement of the dispute between them over the articles of dowry but the respondent declined to accept."

6. A bare perusal of the aforesaid findings would show that the learned Judge in Chambers reduced the decretal amount from Rs.1,5f,903 to Rs.50,000 on the ground that the prices of various items mentioned in Exh. P.6 were based on hearsay and the same was, therefore, kept out of consideration. The learned Judge, however, ignored the fact that Mst Musarat Sultana appearing as her own witness as P.W.7 categorically stated as follows:‑‑‑

7. The trial Court after appreciating the evidence observed:‑‑

"The plaintiff has proved her contention through documentary evidence as well as oral evidence. She has proved the value of her articles of dowry by producing the receipt of each time separately and by producing the list of articles of dowry in which value of each item is mentioned. The defendant's witnesses have failed to rebut the plaintiff's assertion. The defendant has also failed to prove the return of articles of dowry to the plaintiff."

8. On appeal, while re‑evaluating the evidence on record, the learned Additional District Judge, observed that the witnesses examined by the respondent were not independent and thus displeased them. However, the witnesses produced by the appellant were found to be independent and confidence inspiring.

9. It would, therefore, be seen that the valuation of the dowry items was not based solely on Exh. P.6 but on the statement of the appellant as well. The weight to be attached to this statement is essentially a question relating to appreciation of evidence. The trial Court as well as the First Appellate Court after scrutinising the whole evidence on record and for cogent reasons believed the evidence of the appellant as to the valuation of the articles of dowry. Clearly, the High Court in second appeal had no jurisdiction to go into the question relating to the weight to be attached to the statement of the appellant. Needless to say that believing, or disbelieving the evidence is the function of the trial Court and a finding recorded in regard thereto is not open to challenge in second appeal by the High Court in exercise of its jurisdiction under section 100 of the C.P.C. simply because some other viewpoint on the evidence produced could also be taken. It is well‑settled that interference in concurrent finding of fact can be made by the High Court only when the evidence is misread and finding is based on surmises and conjectures; or based on inadmissible evidence; or there existed an error of defect in the procedure which may possibly have introduced an error or defect in the decision on merits. Here as stated above, even if Exh. P.6 is excluded from consideration the decision on merits is not affected, inasmuch as the statement made by the appellant regarding valuation of the price was not based on Exh. P.6 simpliciter but her own knowledge and information as well. This document was in addition to the oral statement made by the appellant appearing as P.W.7. '

10. Clearly, the inference drawn by the High Court in modifying the judgments of the Courts below to the extent indicated above, was unfounded. Thus, visualised, the High Court has erred in setting aside the concurrent findings of Courts below on question of fact by reappraisal of evidence. Delay of 4 days is condoned.

11. For the reasons given above, we allow this appeal, set aside the judgment and decree of the High Court and restore the judgment and decree of the Trial Court with no order as to costs.

A.A./M‑16/S Appeal accepted.