2004 M L D 1492

[Peshawar]

Before Shah Jehan Khan and Talaat Qayum Qureshi, JJ

TARIQ MEHMOOD QURESHI‑‑‑Petitioner

versus

Mst. ZAHID PARVEEN and others‑‑‑Respondents

W. P. No. 1122 of 2002, decided on 8th June 2004.

(a) West Pakistan FamilyCourts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5& Sched‑‑‑Civil Procedure Code (V of 1908), O.XVII, R. 3‑‑ Suit for recovery of dower and dowry articles‑‑‑Closing of evidence and striking off the defence of defendant‑‑‑Defendant was given many opportunities to adduce evidence, but despite such opportunities including last opportunity and adjournments on payment of costs, he neither adduced evidence nor paid costs‑‑ Evidence of defendant was rightly closed and his defense was rightly struck off.

Mian Gul Shahzad Aman Room and others v. Kameen Mian and others PLD 2003 Pesh. 60; Muhammad Nawaz v. BarkatAli PLD 2004 Lah. 21; Muhammad Sharif v. Sarfaraz Ali and 2 others 2003 MLD234: Raiz Hussain v. Sardar Raiz Hussain and others 200? MLD 1252; Muhammad Sarwar v. Judge Family Court No. II Sadiqabad, District Rahimyar Khan, and another 1999 CLC 1578 and 1999 YLR 830 ref.

(b) West Pakistan FamilyCourts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss.5, Sched & 12‑‑‑Suit for recovery of dower and dowry articles‑‑ Pre‑trial and post-trial reconciliation‑‑‑Defendant had contended that Trial Court having committed illegality by not holding pre‑trial and post-trial reconciliation proceedings which were mandatory in nature, judgment and decree passed by Trial Court against him were illegal‑‑ Contentionwas repelled because order sheet had clearly revealed that Trial Court had fixed case for reconciliation proceedings, but defendant absented himself and did not attend the Court on that date and even after that date‑‑‑Conduct of the defendant had shown that there existed no possibility of reconciliation‑‑‑TrialCourt, in circumstances had rightly struck off the defence of defendant.

Rashid Tariq Khan v. AdditionalDistrict Judge, Lahore and others 1986 SCMR 1557 ref.

(c) West Pakistan FamilyCourts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. ‑1& Sched‑‑‑Constitution of Pakistan (1973), Art., 199‑‑ Constitutional petition‑‑‑Suit for recovery of dower anddowry‑‑‑Dower deed and Nikahnama produced on record clearly,showed the details of properties which had been given by defendant to plaintiffwife in lieu of her dower‑‑‑Decree for recovery of dower, incircumstances had validly been passed and in absence of any illegality samecould not be interfered with‑‑‑Plaintiff placed on recordcopy of list of dowry articles and said list was not objected to by defendant‑‑‑Defendantin his lengthy examination‑in‑Chief did not deny having receiveddowry articles mentioned in said list‑‑‑Defence of defendantwas that dowry articles received by him, had been returned to plaintiff throughthe efforts of Jirga Members to one who was heading Jirga for onward handingover same to plaintiff after she would give birth to a child‑‑‑Defendantcould not produce or examine person to whom dowry articles were given to behanded over to plaintiff ‑‑‑Factum of handing over saidarticles to plaintiff having not been proved by defendant, suit for recovery ofdowry articles, was also rightly decreed by Trial Court‑‑Courtsbelow had properly appreciated evidence available on record‑‑‑Inabsence of any illegality in concurrent findings of Courts of competentjurisdiction, same could not be interfered with by High Court in exercise ofits Constitutional jurisdiction‑‑‑High Court in exercise ofits Constitutional jurisdiction, could not substitute its own findings in placeof findings given by Courts of competent jurisdiction.

(d) Qanun‑e‑Shahadat(10 of 1984)‑‑‑

‑‑‑‑Arts.90, 91 & 92‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Admission of document‑‑‑Objectionto‑‑‑Once a document was admitted in evidence without any objection from the ‘other’ side, later on, the objection against its admission could not be allowed at the appellate stage or during Constitutional proceedings.

Rashid Tariq Khan v. AdditionalDistrict Judge, Lahore, and others 1986 SCMR 1557; Malik Din and another v.Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Muhammad Akram v. Syed Imran Ali Shah 1988 CLC 2228; Abdul Hamid Khan v. Muhammad Zameer Khan and 2 others 1990 MLD 1617; SheikhupuraCentral Co‑operative Bank v. Tawakalullah and others PLD 1977 Lah. 763; Bhupal Das v. Sheri Takerji AIR 1943 P.C. 83; National Bank of Pakistan v.Sayed Ali 1987 CLC 1103; Muhammad Yousaf Khattak v. S.M. Ayub and 2 others PLD1972 Pesh. 175 and Aminul Haq v. Abdul Wasai and others 2004 CLC 555 ref.

(e) Constitution of Pakistan(1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Exercise of‑‑‑Even if High Court formed another view on re‑appraisal of record available, before it, same was not sufficient to justify interference and substitute its own bindings in place of findings given by Forums/Tribunals of competent jurisdiction unless the same were found arbitrary and capricious.

Export Promotion Bureau and others v. Qaiser Shafiullah 1994 $CMR. 859; Ghazanfar Abbas v. AdditionalDistrict Judge Jhang and 3 others 2001 YLR 644; Siraj Din and 17 others v.Member (Judicial‑I) Board of Revenue, Punjab Lahore and others 2003 MLD772; Khuda Yar v. M.B.R. and others 2003 MLD 1075 and Abdul Wali Khan through legal Heirs v. Muhammad Saleh 1998 SCMR 760 ref.

Mazullah Barkandi for Petitioner.

Mian Muhibullah Kakakhel for respondents

Date of hearing: 8th June 2004.

JUDGMENT

TALAAT QAYUM QURESHI, J.‑‑‑TariqMahmood Qureshi, petitioner through a writ petition in hand has called in question the judgments and decrees dated 11‑5‑2000 and 10‑7‑2002passed by respondents Nos.3 and 4 respectively being illegal, without lawful authority, and of no legal effect.

2. Mr. Mazullah Barkandi, Advocate the learned counsel representing the petitioner argued that the impugned judgments and decrees are based on misreading and non‑reading of evidence hence liable to be set aside.

3. It was also argued that the learned trial Court has committed illegality by not holding pre‑trial and post-trial reconciliation proceedings which were mandatory in nature, hence the impugned judgments and decrees are illegal.

4. It was also argued that the learned trial Court had re‑cast the issues but no opportunity was provided to the petitioner to lead evidence on the re‑cast issues, he was, therefore, condemned unheard.

5. It was also argued that the learned trial Court was in haste in invoking the provisions of Order 17, rule3, C.P.C. The petitioner was not provided the opportunity to adduce evidence in support of his claim/defense.

6. It was also argued that the petitioner had handed over dowry articles to Syed Turab Ali Shah, who had in turn handed over the same to respondent No.1, but this fact was not considered by the Courts below properly.

7. It was further argued that apartment in any Army Residential Colony has been allotted to the petitioner till date, but still, an apartment has been decreed in favor of respondent No.l which was against the provisions of section 6 of the Transfer of property.

8. On the other hand, MianMuhibullah Kakakhel, the learned counsel representing respondent No.1 argued that the impugned judgments and decrees passed by the Courts below .are based on proper appreciation of evidence as well as the law applicable to the case in hand, therefore, need no interference.

9: It was also argued that the petitioner was given many opportunities to adduce evidence and despite last opportunities and adjournments on‑payment of costs, he failed to pay the costs and to adduce evidence, therefore, was no other alternative’ and option for the learned trial Court but to close his evidence

10. It was also argued that pre‑trial reconciliation proceedings were held on 3-11‑199,8 and 18‑11‑1998as is clear from the order sheets of suit No.y15/FC If post evidence reconciliation proceedings were not held, the same could not invalidate the judgments and decrees passed by the Courts below. Reliance in this regard was placed on (1986 SCMR 1557).

11. It was also argued that dower deed Exh.P.W.1/f was hotly denied by the petitioner in his statement recorded on22‑4‑2000 and on the back of the Nikahnama, the petitioner has mentioned the letter-number through which the apartment was allotted to him, therefore, respondent No. l has been rightly held entitled to a decree for the same.

12. We have heard the ‑learned counsel for the parties at length and perused the record.

13. Mst. Zahida Parveenrespondent No. I filed two suits. One suit No, 14/FC was filed on the 5‑1‑1998for recovery of her dower i.e. Shari share in the house bearing No. 211‑B situated in Mohallah Balaq Shah Jhang Cantt, Rs.2.00.000 (two lacs) cash and one Army Luxury Apartment to be allotted to the petitioner. In the alternative recovery of Rs.5,00,000 (five (lacs) price of shari share of house situated atJhang and Rs.’19,00,000 (Nineteen lacs) price of the Luxury Apartment (totalRs.24,00,000) (Twenty.four lacs) was sought: Maintenance at the rate ofRs.5,000 (five thousand) per month‑ with effect from the 6‑2‑1998till decision was also sought. The other suit No.15/FC was, filed on 21‑9‑1998for recovery of dowry as per the list of dowry articles annexed with the plaint.The learned trial Court consolidated both the suits. Consolidated issues were framed on 19‑7‑1999. Respondent No.1/plaintiff was invited to leadher evidence. In order to prove her case, she examined Mudasser Havat P.W.1, who placed on record a copy of dower deed Exh.P.l/1. This witness was the son of Umar Hayat who was the scribe of the said deed. The said document Exh.P.W.I/1 was placed on record without any objection from the petitioner/defendant’s side. Shah Zor AliShah (Squadron LeadeO attorney of respondent No. l was examined as P W.2, who placed on record his power of attorney Exh.P.W.2/1, letter dated. 6‑8‑1999Exh: P. W .2/2, letter dated 10‑9‑1998 Exh. P. W.2/3 and another letter was placed on record as Exh.P W.2/4. Copy of “Fatwa” isExh.P.W.2/5. Mst. Zahida Parveen respondent/plaintiff was examined as P.W.3.She placed on file a list of dowry articles Exh.P.W.3/1. The same was placed on record without any objection from the petitioner/defendant’s side.

14. In rebuttal, the petitioner examined himself as D.W.1. He placed on record copy of the report Exh.D.W.I/1.Photocopy of a document through which the dowry articles were allegedly handed over to respondent No.1 Exh.D.W 1/2, copy of plaint and judgment EXh.D.W.I/3, copy of a letter dated 20‑4‑1998 EXh.D.W.I/4, copy of character certificate Exh.D.W 1/5. All these documents were placed on record subject to objection by the other side. Cross‑examination of the petitioner/defendant was reserved on 22‑4‑2000 for producing the original documents of Eich’s.D.Ws.l12, 1/4, and 1/5.

15. The argument of the learned counsel for the petitioner that provisions of Order 17, rule 3, C.P.C. were invoked in haste by the learned trial Court has no substance at all. A perusal of the order sheets shows that the, case was fixed for evidence of the petitioner/defendant for 25‑3‑2000. On 30‑3‑2000 the case file was transferred to the Court of learned Judge Family Court. On tire said date the Agent of the counsel for the petitioner/defendant was present but the evidence of the petitioner was absent, hence he was given the last opportunity and the case was posted for 4‑4‑2000 on which date it was again adjourned with the “Last Chance” for 8‑4‑2000. The said date was also adjourned due to the absence of evidence of petitioner/defendant on payment of the cost of Rs.100 and the case was posted for 17‑4‑2000. On the said date also evidence of the petitioner was not in attendance, hence it was adjourned to 22‑4‑2000 on which the examination‑in‑chief of the petitioner’s statement was recorded and on his request to produce the original documents the case was adjourned to 26‑4‑2000 on which date to neither the petitioner/defendant nor his evidence was present, hence the case was adjourned on payment, of Rs.200 as costs for 2‑5‑2000. It is worth mentioning that on the date fixed i.e. 2‑5‑2000 neither the cost imposed twice earlier aid nor the petitioner/defendant nor his evidence was struck off. The perusal of the above-mentioned order sheet clearly shows that many opportunities were provided to the petitioner/defendant to adduce evidence in support of his defense but he failed to produce evidence. In a similar case titled as Mian Gul Shahzad Aman Room and others v. KameenMian and other (PLD 200.3 Peshawar 60) when Court had granted many opportunities to party to examine his witnesses but on his failure to adduce evidence his evidence was closed and it was held:‑‑‑

“The perusal of the record annexed with the revision petition shows that the petitioners/plaintiffs were not only negligent in producing their evidence but they did not care about the last chance provided and warnings given to them to proceed under order 17, therefore, but the order passed by the learned trial Court closing the evidence of the petitioners/plaintiffs was also unexceptionable. ”

Similarly m Muhammad Nawaz v.Barkat Ali (PLV 2004 Lahore 21) it was held:‑‑

“Furthermore,the respondent had failed to produce his remaining evidence in the suit despite numerous adjournment allowed on his requests. The learned trial Judge validly exercised his discretion under rule 3 of Order XVII, C.P.C. to closerespondent’s right to produce further evidence. Petitioner had also proved his case through adequate and credible evidence which was duly and properly evaluated and appreciated by the learned Civil Judge to pass a decree in favor of the petitioner.”

While taking the same view Muhammad Sharif v. Sarfaraz Ali and 2 others (2003 MLD 234) it was held:‑‑

“Therefore,the contention of the learned counsel for the appellant‑plaintiff that the plaintiff along with witnesses, namely, Mukhtar Ahmad, Muhammad Yasin, and Muhammad Malik was present on 19‑6‑2001 when the evidence of the plaintiff was closed under Order XVII, Rule 3, C.P.C. is not borne out from the record. The case was adjourned at the request of the plaintiff‑appellant 26‑5‑2001 for 19‑6‑2001. In this way of the matter, the provisions of Order XVII, rule 3, C.P.C. were attracted in the present case. The trial Court has rightly closed the evidence of the plaintiff‑appellantvide the impugned order, dated 19‑6‑2001 invoking the provisions of Order XVII, rule 3, C.P.C. and. dismissed the suit of the plaintiff.”

Likewise in Raiz Hussain v.Sardar Raiz Hussain and others (2003 MLD 1252 (Lahore) it was held:‑‑

“According to the order sheet of the trial Court, the petitioner was provided sufficient opportunities to produce his evidence and on 20‑6‑2000 when evidence was again not present as usual the case was adjourned on the request of petitioners’ counsel to 10‑9‑2002 with a clear indication that it was the last opportunity. On the said date, his counsel was present but neither the petitioner nor his evidence was there. The record did not indicate that any explanation for non‑production of evidence on that day was given .by the counsel for the petitioner or any request for further adjournment was made by him hence in. the circumstances no illegality was committed by the trial Courtin closing the petitioner’s evidence and dismissing his application for want of evidence. ”

In Muhammad Sarwar v. JudgeFamily Court No. 11 Sadiqabad. District Rahimyar Khan and another (1999 CLC1578) it was held:‑

“A close perusal of documents annexed with the petition, however, reveals that last adjournment on 20‑1‑1997 was at the instance of the petitioner. As such relevant provisions could aptly come into play and pressed into service.Matter, accordingly, is cut down to a limited proposition if, invocation thereof was justified to the circumstance of the case. Answer to the same is certainly in affirmative inasmuch as carelessness and lethargy on the part of the petitioner in producing evidence seems to be so viewed that it did not admit of any further concession to him. Needless to observe that law favors the vigilant and not the indolent. Seemingly learned Judge, Family Court, seized of the matter, had been left with no alternative and option but to decline the further opportunity and to resort to penal provisions.”

A similar view was also taken in(`1999 YLR 830) and (PLD 1983 Lahore 281).

16. The perusal of the above-quoted judgments shows that no illegality whatsoever had been committed by the striking off defence of petitioner/defendant after providing him any opportunity to adduce evidence in support of his claim.

17. The argument of the learned counsel for the petitioner that no pre and post-re-conciliation was held hence the procedure adopted by the learned trial Court was illegal has no force. A perusal of the order sheets in suit No. 15/FC dated 3‑11‑1998and 18‑11‑1998 reveals that the learned trial Court had fixed the case for reconciliation proceedings. The perusal of the order‑sheets discussed in the above paragraphs clearly ‑shows that it was` the petitioner/defendant who absented himself and did not attend the Court after 22‑4‑2000; therefore, the learned Family Court was right in striking off his defense. The conduct of the petitioner/defendant shows that there existed no possibility of‑conciliation conciliation. In a similar case reported as Rashid TariqKhan v. Additional District Judge, Lahore and others (1986 SCMR 1557) it was Dheld:‑‑

“The only ground urged had been the Family Court’s noncompliance with the provisions of section 12 of the West Pakistan Family Court Act (XXXV of 1964) which requires an attempt at reconciliation to be made at the close of the evidence. TheFamily Court, for reasons recorded, held that there was no need for calling the parties for reconciliation. The High Court also found that in view of the conduct of the petitioner and the behavior of the parties; there existed no possibility of reconciliation. In this connection, it noted that as many as nine opportunities had been granted to the petitioner for arguments in the case and that he had shown similar attitude in the connected suit for dissolution of marriage. The High Court, therefore, declined to issue a writ in favor of the petitioner.

The same point,that is, the non‑compliance of the provisions of section 12 has been urged before us. We feel that in the circumstances of the case, the view taken by the High Court cannot be taken exception to. This petition for grant of leave to appeal is, therefore, rejected.”

18. The argument of the learned counsel for the petitioner that no luxury apartment in any Army Housing Scheme has been allotted to petitioner, therefore, no decree with regard to the said apartment could be passed also has no substance. A perusal of the dower deedExh.P.W.I/1 and Nikahnama (placed on file) shows that not only in dower deed, Exh.P.W.I/1 but in column No. 15 of Nikahnama petitioner has himself given the details of property which had been given to respondent No. l in lieu of her dower, in addition, to sharing in house No. 211‑B at Mohallah Balaq ShahJhang Cantt, Luxury Apartment which was to a allotted to the petitioner through membership No. 1728 (Part‑III), the allotment letter Number and date of which have been deliberately leaving blank was also promised to be transferred in lieu of her dower. Even the worth/price of the share of the house as well as the luxury apartment was also determined by the petitioner/defendant himself. The worth/price of the luxury apartment has been shown to Rs.19,00,000 (Rs.Nineteen Lacs). In case it is established during the execution that no luxury apartment has yet been allotted to the petitioner, in such eventuality the respondentNo.1/decree‑holer is entitled to receiver the price thereof. I .e.Rs.19,00,000 (Rs. Nineteen Lacs) from the petitioner, therefore, decree for recovery of dower has validly been passed and we have not been able to find out any illegality in the findings with regard to recovery of dower.

19. The argument of the learned counsel for the petitioner that the Courts below have misread/non‑read the evidence has no force. As mentioned above, in the Suit No.14/FC the amount of dower and maintenance were claimed. The basic document on the basis of which said the claim was lodged, was the dower deed and Nikahnama. The respondent No.1/plaintiff proved the dower deed by examining the son of the scribe. The said document Exh.P.W.1/1 was placed on record without any objection from the other side. Although examination‑in‑chief of the petitioner was recorded he did not deny the execution of the said document Exh.P.W.1/1.

20. Likewise in Suit No. 15/FCdowry articles or price thereof was claimed. Respondent No.1/plaintiff when examining as P.W.3 placed on record a copy of the list of the dowry articlesExh.P.W.3/1. Said document was also placed on record without any objection from the petitioner’s side: In his lengthy examination‑in‑chief of the petitioner did not deny having received the dowry articles mentioned in listExh.P.W.3/1. His defense in fact that though articles were received but the same had been returned through the efforts of the Jirga Members to Syed TurabShah, who was heading the Jirga for onward handing over the same to the respondent. 1 after she would give birth to a child. In this regard Photostat copy of document Exh. D. W. 1/2 was produced, but this document was placed on record subject to the objection that Photostat was not admissible. Neither the original of the said document was produced by the petitioner nor he examined Syed Turab Shah to prove that he had ever handed over the articles of dowry mentioned in Exh. D.W.1/2 to respondent No. 1. So the factum of handing over those articles was not proved.

21. It is by now settled that once a document is admitted in evidence without any objection from the other side, later on, objection against its admission cannot be allowed at the appellate stage what to speak of raising such objection during the writ petition. Reliance in this regard is placed on the following reported judgments:‑‑

(i) Malik Dinand another v. Muhammad Aslani (PLD 1969 SC 136).

(ii) Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140).

(iii) Muhammad Akram v. Syed Imran Ali Shah (1988 CLC 2228).

(iv) Abdul HamidKhan v. Muhammad Zameer Khan and 2 others (1990 MLD 1617).

(v) SheikhupuraCentral Co‑operative Bank v. Tawakalullah and others (PLD 1977 Lahore 763).

(vi) Bhupal Dasv. Sheri Takerji (AIR 1943 P.C. 83).

(vii) Nationalbank of Pakistan v. Sayed Ali (1987 CLC 1103).

(viii) Muhammad Yousaf Khattak v. S.M. Ayub and 2 others (PLD 1972 Peshawar 175) and

(ix) Aminul Haq vs. Abdul Wasai and others (2004 CLC 555)

22. The respondent No.1/plaintiff proved her case with regard to the dower as well as for the dowry articles. Even otherwise at this stage in exercise of our Constitutionaljurisdiction, we cannot substitute our own findings in place of findings given by the Courts of competent jurisdiction.

23. It, is by now settled law that even if we form another view on reappraisal of the record available before us, the same was not sufficient to justify interference and substitute our own findings in place of findings given by the forums/Tribunals of competent jurisdiction; if those findings are otherwise found to be arbitrary or capricious Wisdom in this regard has been gained from the following judgments:

(i) ExportPromotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859),

(ii) GhazanfarAbbas v. Additional District Judge Jhang and 3 others (2001 YLR 644).

(iii) Siraj Dinand 17 others v. Member (Judicial‑I) Board, of Revenue, Punjab Lahore and others (2003 MLD 772),

(iv) Khuda Yarv. M.B.R. and others (2003 MLD 1075).

(v) Abdul WaliKhan through Legal Heirs v. Muhammad Saleh (1998 SCMR 760).

24. The above discussion leads us to the irresistible conclusion that the Courts below have properly appreciated the evidence available on record and we have not been able to find out any illegality warranting interference in the concurrent findings of Courts of competent jurisdiction. Resultantly the writ petition is dismissed. There shall be no order as to costs.

H.B.T./162/P Petition dismissed.