Wednesday, 3 October 2018

Dower cannot be taken from the share of brother of husband

PLJ 2014 Peshawar 142
Present: Ms. Musarrat Hilali, J.
Mst. ZUBAIDA--Petitioner
Mst. HUSSAIN BIBI & 4 others--Respondents
C.R. No. 773-P of 2013, decided on 12.12.2013.
----Ss. 12(2) & 115--Civil revision--Decree was challenged on ground of obtained through fraud and misrepresentation--Veranda and room was given to wife in lieu of dower by her ex-husband--Nature of allegations in application--Court might adopt any mode for its disposal--Condemned unheard has no force as suit remained pending for more than three years--Application showed mala fide on her part as petitioner neither during subsistence of her marriage nor after divorce has claimed her dower at any forum--Of course, she can claim her dower from share of ex-husband but shall have no concern with share of his brother.      [P. 144] A
Mr. M. Amin Khattak Lachi, Advocate for Petitioner.
Date of hearing: 12.12.2013.
Through the instant revision petition, petitioner Mst.Zubaida has impugned the judgment dated 3.12.2012 recorded by the learned ADJ-III, Kohat, whereby application of the petitioner under Section 12(2), CPC has been dismissed.
2.  Brief facts of this case as per record are, that petitioner filed an application under Section 12(2), CPC before the learned Additional District Judge-III, Kohat alleging therein that judgment and decree passed by the learned trial Court dated 2.2.02012 and confirmed by learned appellate Court on 3.12.2012 have been obtained due to fraud and misrepresentation of facts. The learned Additional District Judge after hearing the learned counsel for the petitioner dismissed the said application on 4.9.2013 in limine, hence, this revision petition.
3.  Learned counsel for the petitioner contended that petitioner was one of the co-owner of the suit house as a part of the said house was given to her in lieu of dower by her ex-husband Sahib Gul; that the decree was obtained at her back as she was not made a party in the case; that the learned appellate Court dismissed the application of the petitioner without framing of issues and recording of evidence; thus condemned the petitioner unheard. She added that the case be sent back to the learned appellate Court for proper adjudication.
Arguments heard. Record perused.
4.  The petitioner has challenged the judgment and decree dated 3.12.2012 recorded by learned Additional District Judge-III, Kohat on the ground that the same was the result of fraud and misrepresentation practiced upon her by Respondents 1 to 5.
5.  The grievance of the petitioner is that out of the suit house, veranda and a room was given to her in lieu of dower by her ex-husband, predecessor of Respondents 2 to 5 in the original suit. The marriage of petitioner with Sahib Gul was dissolved in the year, 1991 whereafter she married one Abdul Aziz and was living with him in Togh Bala. The plea of the petitioner is that she being co-owner of the suit house was not impleaded in Suit No. 155/1 of 2009 and was condemned unheard.
6.  In order to fully understand the matter, it is necessary to give some details of Suit No. 155/1 of 2009, which was instituted by Respondent No. 1 against respondents 2 to 5, in terms, that the suit house was originally the ancestral property of their father and after his death it devolved upon beside herself, her sister Qamar Sultana and brother Sahib Gul. She sought possession of 2/8 share of the suit house being legal heir of Umar Gul.
7.  Respondents 2 to 5 contested the suit and after necessary proceedings the learned trial Court decreed the suit on 2.2.2012. Dissatisfied with the same, respondents 2 to 5 filed appeal but the same was dismissed by the learned lower appellate Court on 3.12.2012. The judgment and decree dated 3.12.2012 of learned lower appellate Court became final as no revision was filed against the said judgment.
8.  The petitioner has impugned the said judgment and decree u/S. 12(2), C.P.C. on the ground that neither issues were framed nor evidence pro and contra was recorded by the learned lower appellate Court.
9.  It is to be mentioned here that in the proceedings u/S. 12(2), C.P.C. no procedure has been provided by the Code. The matter is left to the satisfaction of the Court, which has to regulate its proceedings keeping in view the nature of allegations in the application. The Court may adopt any mode for its disposal.
10.  In the present case, by going through the record, no fraud and misrepresentation of facts is apparent on record. Respondent No. 1 was held entitled to her Sahri share by learned trial Court after recording detailed pro and contra evidence. The plea of the petitioner that  she  has  been  condemned  unheard  has  no  force at all as the suit remained pending between Respondents 1 to 5 for more than three years. It does not appeal to one's mind that petitioner was not in the knowledge of the said matter as she is none else but is the real mother of Respondents 2 to 5. It seems that when the said respondents lost their battle, they brought in their mother who after her divorce in the year, 1991 went into deep slumber and woke up after 22 years whereafter she filed the application in hand which shows mala fide on her part as the petitioner neither during the subsistence of her marriage nor after divorce has claimed her dower at any forum. Of course, she can claim her dower from the share of Sahib Gul but shall have no concern with the share of Respondent No. 1.
11.  In view of the above, this Court is of the considered opinion that the learned lower appellate Court has rightly dismissed the application of the petitioner, hence this revision petition being devoid of legal merits is dismissed with no order as to cost.

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