Wednesday, 3 October 2018

PLJ 2015 Peshawar 392 (DB)

PLJ 2015 Peshawar 392 (DB)
PresentYahya Afridi and Rooh-ul-Amin Khan, JJ.
MstKULSOOM BIBI--Petitioner
versus
MUHAMMAD WASEEM and 3 others--Respondents
W.P. No. 1252-P of 2013, decided on 16.6.2015.
Limitation Act, 1908 (IX of 1908)--
----Ss. 13 & 103--Suit for recovery of prompt dower--Limitation--Computed period of limitation for filing suit in respect of dower--Validity--Limitation as provided, no doubt three years, starting when dower is demanded and refused or where, during continuance of marriage no such demand has been made, when marriage is dissolved by death or divorce--Moot question for determination was computation of limitation for filing suit, as according to respondent wife has made demand for payment of prompt dower in Nov./Dec. 2007, while suit has been filed in Feb. 2011, which is beyond period provided by Art. 103 of Limitation Act--If wife has demanded payment of dower outside country, then applicability of Section 13, limitation Act, 1908 would be attracted, according to which period of absence of plaintiff from Pakistan would be excluded for reckoning period of limitation--In computing period of limitation prescribed for any suit, time during which defendant has been absent from Pakistan and from territories beyond Pakistan under administration of Central Government shall be excluded--Even if defendant was absent, not at a continuous stretch, but at intervals, still it will be time during which defendant has been absent from country and plaintiff would be entitled to deduct total period of absence of defendant from Pakistan--Demand qua payment of her prompt dower has been made by petitioner, but keeping her demand of dower and refusal thereof by respondent and then his leaving country Pakistan and his continuous stay there till date, it would be Section 13 of Limitation Act, 1908 which would govern her cause of action--Suit of petitioner being well within time, therefore, findings of Courts below declaring her suit to be hit by Art. 103 of Limitation Act, are hereby reversed--Petitioner would be entitled to its possession as her dower, if she is not in corporeal possession of same. [Pp. 398, 399, 400] A, B, C, D, E, F, G & H
Mr. Abdul Sattar Khan, Advocate for Petitioner.
Mr. Inayat-ur-Rehman, Advocate for Respondents.
Date of hearing: 16.6.2015.
Judgment
Rooh-ul-Amin Khan, J.--Our this common judgment shall dispose of the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed by petitioner MstKulsoom Bibi and Identical Petition No. 1614-P/2014, titled, “Muhammad Waseem Khan etc. vs. MstKulsoom Bibi etc” as both are the outcome of judgment dated 15.10.2012, rendered by learned Judge Family Court and judgment dated 14.03.2013, passed by learned District Judge, Charsadda, whereby the former dismissed petitioner MstKulsoom Bibi's suit to the extent of her dower, being time barred while the latter, decreed her dower to the extent of her already paid dower in the shape of 24 Kanals of land already transferred to her vide Deed No. 964 dated 25.06.2007, however, dismissed her suit to the extent of rest of her dower on the same ground which prevailed before the learned trial Court. The petitioner has, however, been granted a decree by both the Courts below to the extent of her maintenance allowance for a period of her Iddat and dowry articles against the respondent Muhammad Waseem Khan. Both the parties being aggrieved from the judgments of the two Courts below have questioned the same through these constitutional petitions.
2.  Facts in brief forming the background of the two petitions are that petitioner MstKulsoomBibi, filed a suit against respondent Muhammad Waseem for recovery of her dower, dowry articles, maintenance allowance for herself and for her minor daughter MstBibi Rana in the following manner:--
(i)       Rs. 1,00,000/- in cash vide Mehar-nama” and “Nikah-nama” dated 25.06.2007 and 06.07.2007, respectively, gold ornaments weighing 32½ Tolas or its market value amounting to Rs. 16,25,000/- as well as landed property measuring 24 Kanals situated in Mauza QilatNiasir, the “dower”.
(ii)      Gold ornaments weighing 20 Tolas given to her by her parents at the time of her Rukhsati or its market value amounting to Rs. 10,00,000/- and Rs. 2,25,600/- as market value of dowry articles, as per list, annexed with the plaint, the “dowry articles”.
(iii)     Maintenance allowance amounting to Rs. 1,50,000/- for period of her iddat i.e. from 13.06.2009 till 13.09.2009.
(iv)     Maintenance allowance at the rate of Rs. 30,000/- per month for her minor daughter MstBibi Rana till her marriage with 20 per cent increase per annum. (Later on, this prayer deleted on the written request of the petitioner).
3.  It has been averred by petitioner MstKulsoom Bibi in the plaint that her marriage was solemnized with respondent Muhammad Waseem on 06.07.2007, in Officer Colony Dabgari Garden Peshawar, and vide Nikah-nama of the even date, her dower was fixed in the mode and manner stated above alongwith her maintenance allowance as mentioned in the Nikah-nama; that she remained with the respondent as his wife in his house situated in Mauza Sher Garh Sardheri Charsadda, who proceeded to United Kingdom (England) alongwith her, where he used to beat and insulted her at the instigation of his mother and, ultimately, on 05.08.2008, shunted her out from the house in pregnant condition; that being an alien in England, took refuge there with her relatives, during which period she also gave birth to a  daughter MstBibi Rana; that sensing the condition of her relatives there in England who were not in a position to bear her expenses, she contacted Human Rights Commission in U.K. and on their instructions took refuge in Asylum and that her case is also pending before the concerned forum in UK; that the respondent did not inquire about her rather on 13.06.2009, pronounced divorce “Talaq” to her in presence of his mother; that her dower and dowry articles as mentioned above have been snatched by the respondent while ousting her from the house and has not paid any maintenance to her either before her divorce or after divorce for the period of Iddat.
4.  The suit of the petitioners was contested by the respondents by filing written statement, raising therein variety of objections, legal as well as factual. From divergent pleadings of the parties, following issues were framed by the learned trial Court:--
1.       Whether the plaintiffs have got a cause of action?
2.       Whether the Court has got jurisdiction to entertain the present suit?
3.       Whether the suit is bad/incompetent in its present form?
4.       Whether the suit is bad for mis-joinder and non-joinder of parties?
5.       Whether the suit is not maintainable due to other suit filed by the plaintiffs in England?
6.       Whether both the parties are residing abroad, therefore, the suit is not maintainable?
7.       Whether the dower deed/Nikah-nama is forged, bogus and is un-registered, therefore, is inadmissible in evidence?
8.       Whether the suit is based on mala fide, therefore, the defendants are entitled to receive special cost from the plaintiffs?
9.       Whether the Plaintiff No. 1 is entitled to recovery of
Rs. 1,00,000/- as per dower deed dated 26.06.2007 and Nikah Nama dated 06.07.2007?
10.     Whether the Plaintiff No. 1 is entitled to recovery of golden ornaments weighing 20 tolas or its market value Rs. 10,000/- as the same was her dowry which was given-to her by her parents at the time of Rukhsati and now is in possession of the defendants?
11.     Whether the Plaintiff No. 1 is entitled to recovery of 32 ½ tolas gold ornaments or its market value Rs. 16,25,000/- as her dower?
12.     Whether the Plaintiff No. 1 is entitled to recovery of
Rs. 1,00,000/- @ Rs. 50,000/-per month as maintenance allowance from 15.08.2008 to 12.10.2008 as from this period the defendant ousted the plaintiff from his house?
13.     Whether the Plaintiff No. 1 is entitled to recovery of
Rs. 1,50,000/- as maintenance allowance from 13.06.2009 to 13.09.2009 as the Defendant No. 1 had divorced the plaintiff on the former date?
14.     Whether the Plaintiff No. 2 is entitled to recovery of maintenance allowance @ Rs. 30,000/- per month from 15.08.2008 till her marriage plus 20% increase per annum?
15.     Whether the Plaintiff No. 1 is entitled to recovery of Rs. 2,25,600/- as market value of dowry articles as per list annexed with the plaint?
16.     Whether the Plaintiff No. 1 is entitled to possession of agricultural property measuring 24 Kanals out of 781 Kanal 19 marlas situated at Mouza Qalat Nasir as her dower?
17.     Whether the plaintiffs are entitled to the decree as prayed for?
          Relief
Additional Issue.
1.       Whether the suit is within time?
5.  Parties led their evidence in support of their respective stance and on conclusion of trial, the learned trial Court Judge Family Court, Charsadda, partially decreed the suit of the petitioner to the extent of recovery of her dowry articles and maintenance allowance at the rate of Rs. 10,000/- per month, only for a period of her Iddat while rest of her claim qua maintenance allowance was dismissed. However, her suit to the extent of dower was straightaway dismissed, being time barred.
6. Being discontented with the judgment of the learned Family Court, petitioner filed an appeal before the learned Appeal Court while respondent filed cross-objection. Appeal of the former was partially accepted by the learned Appellate Court with a slight modification in the manner that she was held entitled to her dower in the shape of 24 Kanals of land vide Deed No. 964 on the ground that the same has already been transferred in the name of the petitioner, while cross-objection of the latter against dowry articles was disposed of in the manner that petitioner would be entitled to recovery of dowry articles lying in the house of the respondent and if any article is found missing only then she would be entitled to its market value.
7.  Both the parties being dissatisfied from the findings of the learned Appeal Court, have filed these petitions.
8.  The main thrust of the arguments of learned counsel for the petitioner was that the two Courts below have admitted the dower of the petitioner to be the same as mentioned in her plaint, but by not adverting to the evidence available on record and the accurate law on the subject, dismissed her suit to the extent that the same was not outstanding against the respondent and that her suit was hit by the provision of S.103 of the Limitation Act, 1908, which findings of the two Courts below are based on wrong premises and without application of accurate law i.e. S.13 of the Limitation Act, 1908, as the demand of dower was made in the year 2007, but respondent left Pakistan for England in the same year and is still there, therefore, the period stayed by him abroad shall be excluded while computing the period of limitation. He contended that the suit of the petitioner is well within time and she has proved her dower through cogent and confidence inspiring evidence to be still outstanding against the respondent, therefore, she is entitled to a decree for recovery of dower as prayed for. He sought setting aside of the findings of the two Courts below in this regard.
9.  Conversely, learned counsel for respondent contended that both the Courts below have rightly held the suit of the petitioner to be time barred by applying relevant law on the subject. He further contended that nothing in the shape of dower, dowry articles and maintenance allowance is outstanding against the respondent nor has she proved the same through solid evidence, therefore, she was not entitled to any sort of decree. He sought reversal of the findings of the two Courts below qua partial decree in favour of the petitioner.
10.  We have given our anxious consideration to the respective submissions advanced from both the sides and perused the record carefully.
11.  It appears from the impugned judgments, that both the Courts below are unanimous about Rs. 1,00,000/- in cash, 32 ½ Tolas of gold ornaments and 24 Kanals landed property, to be the dower of the petitioner as  per Nikah-nama Exh.PW.2/1. While going through the Nikah-nama of the petitioner and evidence available on record, we do concur with the learned two Courts below on the quantum of the dower of the petitioner. The crucial points for determination before us is whether the aforesaid dower has been paid to the petitioner by the respondent or still outstanding against him, and if outstanding, when the same was refused by the respondent and whether the suit for recovery of same has been filed within the prescribed period of limitation.
12.  Nikah nama divulges that petitioner's marriage had been solemnized with the respondent Muhammad Waseem on July 6th, 2007, in Pakistan at Peshawar. Column No. 14 of the Nikah-nama Exh.PW 2/1 depicts prompt dower of the petitioner i.e. “Indal Talab”. The learned trial Court while dilating upon additional Issue No. 1 i.e. “Whether the suit is within time?”, has specifically, relied upon the statement of special attorney of the petitioner (PW.3) that according to him demand for dower was made in the year 2007 by the petitioner which was refused by the respondent. The learned trial Court has referred some portion of his statement, recorded in Urdu, translation in English of which is reproduced below:
“The defendant when snatched the gold ornaments of the Plaintiff No. 1, she in those days demanded her dower and landed property etc; self added that 20 tolas gold ornaments prepared by father of the petitioner to the petitioner had also been snatched by the respondent; that this incident took place in December, 2007 when the plaintiff demanded her dower in the shape of gold ornaments and landed property etc, payment of which was squarely refused by the defendant.”
Thus the two Courts below while taking into consideration, December 2007, as the year of demand of dower by the petitioner and refusal of the same on the part of the respondent, computed the period of limitation for filing suit in respect of dower from December, 2007 and thereby held the suit of the petitioner, filed on 09.02.2011, to be barred by time under Article 103 of the Limitation Act, 1908, consequent whereupon, dismissed her claim/suit to the extent of recovery of her dower. We do agree that Section 103 of the First Schedule of Limitation Act, 1908 relates to a suit for the recovery of “Prompt dower”. The limitation as provided in this article is, no doubt three years, starting when the dower is demanded and refused or where, during the continuance of the marriage no such demand has been made, when the marriage is dissolved by death or divorce.
13.  The moot question for determination in the case is computation of limitation for filing the suit, as according to respondent the wife has made demand for payment of prompt dower in November/December 2007, while the suit has been filed in February 2011, which is beyond the period provided by Article 103 of Limitation Act. To ascertain as to whether the plaintiff/petitioners has made demand for payment of prompt dower, both the Courts below have swayed by the reply made by (PW-3) the attorney of the plaintiff in his cross-examination to the effect that in the month of November/ December, 2007, the plaintiff had asked the respondent, for payment of her dower, comprising gold ornament and agricultural land. No doubt, on one side the above referred statement is contrary to the pleading of the parties, and not supported by evidence, while on other hand it shall not be read in isolation, because just after the marriage, the parties have shifted their abode to United Kingdom, while the record is silent about the place of demand of dower. If it was found that she had made the demand in Pakistan, in the month of November/December, 2007, then definitely her suit for recovery of dower would be hit by limitation as provided by Article 103 of limitation Act, but in contrary, if the wife has demanded the payment of dower outside the country, then the applicability of Section 13, limitation Act, 1908 would be attracted, according to which the period of absence of plaintiff from Pakistan would be excluded for reckoning the period of limitation. For convenience we would like to reproduce Section 13 of the Limitation Act, 1908, as under:
13. Exclusion of time of defendant's absence from Pakistan and certain other territories.--In computing the period of limitation prescribed for any suit the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administration of the Central Government shall be excluded”.
The bare reading of the section ibid, reveals that it provides that in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administration of the Central Government shall be excluded. This section makes no exception for cases in which the cause of action arose in a foreign country or for cases in which the defendant was in foreign country at the time of the accrual of cause of action, in all case, the time during which the defendant has been absent from Pakistan must be excluded in computing the period of limitation. Section 13 does not state that it must be one continuous period and there is no scope for the interpretation, that if the defendant had at intervals been within Pakistan, the plaintiff cannot get benefit of this section. Even if the defendant is absent, not at a continuous stretch, but at intervals, still it will be time during which the defendant has been absent from the country and the plaintiff would be entitled to deduct the total period of absence of the defendant from Pakistan. To resolve the controversy on the touchstone of section ibid, the statement of (DW-1) attorney of defendant is worth perusal, wherein he in unequivocal term has stated that the parties got married and entered in to connubial life on 6.7.2007. After 10 days of the wedding ceremony, the defendant left the country for United Kingdom, leaving the petitioner at her in-law's home, at village ShergarhSardheriCharssadda, however, subsequently, he arranged visa and other documents for the petitioner and shifted her to United Kingdom. In cross-examination he admitted the fact that the plaintiff shifted to United Kingdom after three months of her marriage. From the above statement it is manifest that the marriage between the parties has taken place in the month of July and the defendant husband left for United Kingdom in the same month, i.e after ten days of the marriage, likewise the petitioner left the country for United Kingdom after three months, meaning thereby that till month of October 2007 the spouses had left the country and shifted to United Kingdom, therefore, the question of demand of dower in the month of November/December 2007, inside Pakistan, would not arise. Admittedly, after three months of the marriage, neither the married couple was available in the country nor demand of prompt dower in the month of November/December was possible. The statement of attorney of the plaintiff regarding demand of the prompt dower in the month of November/December 2007, if read in juxtaposition with the statement of DW-1 (Father and attorney of respondent) would make it abundantly manifest that the demand for payment of dower, if any, must have been made at United Kingdom, because at the relevant time parties were not available in Pakistan, rather were settled at United Kingdom. It is also admitted fact that the petitioner has been divorced at United Kingdom and till date none has returned to Pakistan, thus, as envisage by Section 13 Limitation Act, the time during which the party has remained abroad, shall be excluded in computing period of limitation. In the light of the aforesaid discussion and statement of the parties, this Court finds that there is error on the part of both the Courts below in assessing and computing the period of limitation for filing of the suit. In this regard, we are further supported by principle laid down by august Apex Court in case titled MstFarah Naz versus Judge Family Court Sahiwal and others PLD 2006 SC 457, the relevant text of which is reproduced as below:
“Furthermore, by reason of Section 13 of the Limitation Act, 1908 in computing the period of limitation prescribed for any suit the time during which the defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government shall be excluded. Assuming, without conceding, even if the period of limitation for such suit be three years, in view of the admitted absence of the respondent from Pakistan, the period of his absence from Pakistan shall be excluded for reckoning the period of limitation. We are supported in this view by the precedents reported as Muhammad Nawaz v. Khurshid Begum (PLD 1972 SC 302), MstBushra Qasim v. Dr. Abdul Rasheed and others (1993 CLC 2063), MstZaibun v. Mehrban(PLD 2004 SC (AJ&K) 25) and MstAnar Mamana and another v. Misal Gul and 2 others (PLD 2005 Peshawar 194).”
In the instant case, no doubt, demand qua payment of her prompt dower has been made by the petitioner in December, 2007, but keeping her demand of dower and refusal thereof by the respondent and then his leaving the country Pakistan for England and his continuous stay there till date, it would be Section 13 of the Limitation Act, 1908 which would govern her cause of action.
14.  In light of mandate of Section 13 of the Limitation Act, 1908, the suit of the petitioner being well within time, therefore, the findings of the two Courts below declaring her suit to be hit by Article 103 of the Limitation Act, are hereby reversed, resultantly, additional Issue No. 1 is decided in favour of the petitioner.
15.  Another point for determination is whether the dower of the petitioner has been paid or still outstanding against the respondent. In respect of dower in the shape of 24 Kanals landed property, it appears from Deed No. 263 that Ikramullah Khan, father of respondent has transferred 24 Kanals land in the name of the respondent Muhammad Waseem, who vide Deed No. 964 dated 25.06.2007, further transferred the same in the name of MstKalsoom in lieu of her dower, therefore, the petitioner would be entitled to its possession as her dower, if she is not in corporeal possession of the same. As regard rest of the dower of petitioner in the shape of
Rs. 1,00,000/- and 32 ½ tolas gold ornaments, though some evidence is available qua its payment of 32 ½ tolas gold ornaments at the time of Rukhsati of the petitioner, but her claim is that respondent forcibly snatched her dower and her dowry articles when he shunted her out from his house. The fixation of dower of the petitioner as mentioned above has been squarely established from the statement of Abdul DiyanPesh Imam/Nikah Khwan (PW.6) and deed dated 06.07.2007. He admitted his signature over Nikah namaand affirmed the signature of the spouses, as well as that of the witnesses in his presence at the time of Nikah. No evidence, much less cogent has been brought on record to rebut the claim of the petitioner qua snatching her dower by the respondent. Rather, Ikram Ullah Khan Respondent No. 2/father of Muhammad Waseem Respondent No. 1 appeared as a solitary witness. A look over his statement reveals that he has confirmed to a great extent the assertion of the petitioner such as the date of marriage, fixation of her dower, dowry articles and divorce. On the other hand petitioner has proved her claim qua her dower through overwhelming evidence; therefore, she is entitled to a decree of her dower as prayed for.
16.  For what has been discussed above, the instant petition of the petitioner is admitted and partially allowed to the extent that the suit of petitioner is within time, thus the finding of Respondents No. 3 and 4 on additional Issue No. 1 is set aside. Likewise, the suit of petitioner to the extent of recovery of Rs. 1,00,000/- cash and 32 ½ gold ornament as prompt dower is decreed in her favour. The partial decree dated 14.3.2013, passed by the learned District Judge, Charsadda, regarding 24 kanal landed property as well the judgment and decree dated 15.10.2012 passed by trial Court regarding maintenance allowance of petitioner and dowry articles are maintained respectively. Consequently, the connected W.P. No. 1614-P/2013, titled, Ikram Ullah Khan etc vs MstKulsoom Bibi” being without any substance stands dismissed.
(R.A.)                                                                          Petition allowed.



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