Saturday, 25 January 2014

Limitation is three years to demand dowry articles (Article 49)

PLJ 1993 Lahore 448
Present: GUL ZARIN KlANI, J JAMSHAID HUSSAIN flana-Petitioner
versus
Mst. REHANA KAUSAR-Respondent
Civil Revision No. 1076 of 1993, dismissed on 4.7.1993.
(i) Civil Procedure Code, 1908 (V of 1908)-
—S. 115-Value of dowry-Recovery of-Suit for-Suit decreed and decree upheld by appellate court-Challenge to-Lower courts, on proper canning of evidence, found that respondent was entitled to recovery of Rs. 24800/- as equivalent money value of her articles of dowry-They took account of every bi( of evidence placed before them and did not overlook any part of record- Held: Finding being on a question of fact based on rjroper appreciation of oral evidence led in suit, was not susceptible to review for being upset or substituted in revisional jurisdiction-Finding upheld.        |P.450]A
< ii) Limitation Act, 1908 (IX of 1908)-
—Art. 49-Value of dowry-Recovery of-Suit for-Whether suit was time- barred-Question oi--Terminus-a-quo for recovery of other specific movable property' or for compensation is three years when property is wrongfully taken or detainer's possession becomes unlawful-From time of divorce onward, detention of articles of dowry in house of petitioner, was unlawful-In such a case, period of three years contemplated in Article 49 began to run from a demand by respondent for return of dowry articles and refusal of petitioner to deliver same to her-Held: Right construction of Article 49 of Limitation Act brings suit within limitation period-Revision dismissed.                                                                  [P.451]B
AIR 1969 Audhra Pradesh 41 rel.
Sh. \aveed Shaheryar, Advocate for Petitioner. Date of hearing: 4.7.1993.
•JUDGMENT
Civil revision was against the agreed judgments of the lower Courts by which they gave the decree and sustained it for a sum of Rs.24,800/-, as the equivalent money-value of the articles of dowry to the respondent.
Respondent was married to the petitioner on 14.8.1987. Their Nikah was registered under fhe Muslim Family Laws Ordinance, 1961. Their marriage was extremely short-lived. On 30.1.1989, the petitioner irrevocably divorced respondent. Divorce was rendered effective on 29.4.1989.
Prior to it, respondent had applied to Arbitration Council for maintenance from the petitioner. On 24.8.1989, the Arbitration Council awarded her the maintenance at the rate of Rs.1,000/- per month w.e.f. 15.1.1987 to 29.4.1989. Petitioner preferred a revision to the Collector of District Gujrat. Revision was allowed on 29.1.1990, and, the monthly rate of maintenance was reduced to Rs.500/- per month. Thereupon, petitioner instituted a civil suit (No.348 of 1990), in the Civil Court, at Gujrat for setting-aside of the orders passed by the Arbitration Council and the Revising Authority. Fate of the civil suit was not known to the learned counsel but an application for temporary injunction wasdismissed on 16.5.1990.
On 9.3.1992, respondent instituted a civil suit to recover her articles of dowry from the petitioner, and, in the alternative, claimed their money-value assessed at Rs.24,800/-. It was asserted that at the time of her marriage, respondent was given the articles of dowry which were taken to the house of the petitioner who unlawfully detained them and was not returning them to her, despite demands made for it. Petitioner was abroad. His sister, Mst. Rifat Ara defended the suit against him as his Mukhtar-i-Aam. In the written statement submitted by her, shecontroverted the averments in the plaint, and, submitted that the suit was barred by Article 49 of the Limitation Act, 1908. It was further averred that respondent was estopped by her conduct to file- the suit for recovery of articles of dowry.
Upon appropriate issues being settled in the suit and evidence taken from' the parties and its consideration, the trial Court decreed the suit to the respondent, on 23.1.1993. An appeal preferred from the decree by the petitioner was dismissed, on 10.4.1993, by learned Additional District Judge, Gujrat. This way, findings of the trial Court were maintained and affirmed. Against the above agreed judgments, a petition in revision was filed in this Court.
It was urged that in terms of Article 49 of the first Schedule of the Limitation Act, 1908, the suit was barred by limitation; the delivery and receipt,of articles of dowry by the petitioner was not established and the value assessed for the articles of dowry was excessive. In support of bar of limitation, learned counsel referred to the case of Janat Bibi v. Abdul Karim, NLR 1981 AC 86 (AJK).
Upon hearing the learned counsel and examination of the existing record, I was unable to sustain either of the contentions. In support of her claim for articles of dowry detained by the petitioner, respondent produced three witnesses, and, herself stepped in the witness box as PW-1. List of articles of dowry given to her at the time of her marriage with the petitioner and taking to his house was prepared by the respondent and marked Exh.P.l on file of the case. She and her three witnesses deposed that the articles mentioned in Exh.P.l were given to her and taken to the house of the petitioner and that the petitioner withheld them from the respondent. As far the value of the unreturned articles, respondent gave assessment of their value. Petitioner was employed abroad. After giving divorce to the respondent, he had contracted second marriage in the month of December, 1992. He occasionally returned home, but did not appear as a witness in support of his defence in the suit filed against him. His defence was conducted all throughout by his sister who acted as his Mukhtar-i-Aam. Her statement waswholly insufficient to effectively rebut the evidence adduced by the respondent in the case. Lower Courts, on proper scanning of the evidence found that the respondent was entitled to the recovery of Rs.24,800/- as the equivalent money-value of her articles of dowry detained by the petitioner. In taking this view, they took account of every "bit of evidence placed "before ftiem and were not sViown "to have overlooked any part of the record from their judicious consideration. The finding being on a question of fact based on proper appreciation of oral evidence led in the suit was not susceptible to review for being upset or subtituted in revisional jurisdiction. Therefore, I would uphold the above finding and agree with the lower Courts in this behalf.

Next comes the question of bar of limitation to the suit instituted by the respondent. It is a common ground that Article 49 of the First Schedule of the Limitation Act applied to the facts of the case. The terminus-a-quo for recovery of other specific movable property or for compensation or for wrongfully taking or injuring or wrongfully detaining the same is three years, when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. It was held above that articles of dowry belonging to the respondent were taken to the house of the petitioner. The wife and the husband lived together for a short-while. The wife was effectively divorced on 29.4.1989. Though the articles of dowry were in the house of the petitioner during the period of the respondent's desertion, yet, the presence of articles of dowry at that place was not unlawful. There was yet a hope, though slim, for rehabilitation of broken marital relations. Divorce however dashed the hope and put it asunder. From that time onward, the detention of articles of dowry in the house of petitioner was unlawful. In the inception, the possession of articles of dowry looked permissive and lawful. With pronouncement of effective divorce, the detainer's possession became unlawful. In such a case, the period of three years contemplated in Article 49 began to run from a demand by the respondent for return of her articles of dowry and refusal by the petitioner to deliver them to her. The precedent case relied upon in this behalf was not a close parallel to the facts in this case, and, therefore, was not much helpful for the decision of the point relating to bar of limitation. In my opinion, right construction of Article 49 of the Limitation Act brought the suit within limitation period. Side note (c) in case reported in AIR 1969 AndhraPradesh 41 dealing with application of Article 49 reads: "Starting point of unlawful possession-Property to be delivered by person in possession at end of particular term detained--Detainer's possession does not bcome unlawful on mere expiry of term but it becomes unlawful, when detainer refuses to deliver possession on demand. (1912) ILR 35 Mad 636 and AIR 1920 Allahabad 353 (2), relied on". Observations in the cited case support the above construction on Article 49 of the Limitation Act. 1908. Thus construed, the suit for return of articles of dowry ortheir money-value in the alternative, at the time of its institution in the trial Court was within limitation.
As far the contention that money-value of articles of dowry was excessive, it had no substance in it. In these days of sky-high prices of all types of goods and spiralling inflationary trends in currency, it could not be successfully said that the money-value of articles of dowry given in the list Exh.P.l was in any manner excessive or disproportionate.
In result, civil revision is dismissed in limine. Records be returned.(MBC)                            (Approved for reporting)       Petition dismissed.



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