Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No. S – 1770 of 2018

Date	Order with signature of Judge

Hearing / Priority Case :

1. For orders on CMA No.7272/2018 :

2. For hearing of CMA No.7273/2018  :

3. For hearing of Main Case :

02.05.2019 :      Malik Sher Afsar, advocate for the petitioner.

    Mr. Naseer Ahmed, advocate for respondents 1, 2 and 3.

…………

            Family Suit No.790/2014 was filed by respondents 1, 2 and 3 against the petitioner wherein respondent No.1 had prayed for recovery of her dower amount, dowry articles, medical / delivery expenses and past maintenance, and respondents 2 and 3 had prayed for their past and future maintenance. The said Suit was decreed by learned Family Court in relation to respondent No.1 to the extent of her dower amount of Rs.100,000.00 and dowry articles, and in relation to respondents 2 and 3 for their maintenance. The decree in the above terms was not challenged by the petitioner. However, respondents 1, 2 and 3 filed Family Appeal No.29/2017 praying that 187 grams of gold ornaments claimed in her Suit by respondent No.1, which were not granted by the Family Court, be also granted to her. Through the impugned judgment and decree, the said appeal was allowed by the learned appellate Court by directing the petitioner to return 187 grams of gold ornaments to respondent No.1.

            It may be observed that since the decree passed by the learned Family Court was not challenged by the petitioner, the same attained finality long ago. Learned counsel for the petitioner has conceded to this position, and he further concedes that the present petition has been filed only to the extent of grant of 187 grams of gold ornaments to respondent No.1. The only ground urged by him is that such relief could not be granted by learned appellate Court to respondent No.1 as the same was not claimed by her in the Suit. Perusal of the respondent No.1’s Suit shows that in paragraph 3 of her plaint she had specifically mentioned that her dowry articles and 187 grams of gold ornaments were lying in the house of the petitioner, and the said 187 grams of gold ornaments were mentioned in clause 17 of her Nikahnama. The above statement was reiterated by her in paragraph 4 of her affidavit-in-evidence. In its judgment dated 04.05.2017, it was observed by the learned Family Court that respondent No.1 / plaintiff was not cross-examined by the petitioner / defendant ; and, in the impugned judgment dated 15.03.2018, it was held by the learned appellate Court that the contents of clause 17 of the Nikahnama regarding 187 grams of gold ornaments were not disputed by the petitioner nor did he dispute the authenticity and genuineness of the Nikahnama. I have observed that it was specifically stated in clause 17 of the Nikahnama that 187 grams of gold ornaments shall be the property of respondent No.1.

            In view of the above, contention of learned counsel for the petitioner that 187 grams of gold ornaments were not pleaded by respondent No.1 in her Suit, does not appear to be correct. Such claim was not only pleaded by her in her Suit, but was also reiterated by her in her evidence which was admittedly not challenged or rebutted by the petitioner. The above clearly shows that respondent No.1 had succeeded in proving her claim whereafter the burden had shifted upon the petitioner to disprove her claim, but he failed in discharging such burden. In such circumstances, findings of the learned appellate Court appear to be correct which do not require any interference by this Court.

These are the reasons of the short order announced by me today whereby this petition and listed applications were dismissed with no order as to costs.

     J U D G E