IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

C.P No. S-346 of 2019

Petitioner: Mst. Kishwar D/o Mushtaque Ahmed, through Mr. Safdar Ali Bhatti, Advocate.

Respondent No.1: Muhammad Usman S/o Muhammad Munshi through Mr. J.K. Jarwar, Advocate.

Date of hearing: 01.11.2021

Date of decision: 01.11.2021

O R D E R

Zulfiqar Ali Sangi, J: Through this petition, the Petitioner seeks following reliefs:-

a) That this Hon’ble Court may graciously be pleased to set-aside the judgments and decrees passed by learned Courts below dated 06.03.2019 and 19.10.2019 and decree the suit of the Petitioner/ plaintiff as prayed in the larger interest of justice”.

2. Learned Counsel for the Petitioner, at the very outset, contended that both learned lower courts have erred in passing the impugned judgments and decrees; besides failed to take into consideration the factual and legal aspect of the case; that the impugned judgments and decrees passed by learned lower Courts are based upon presumptions, assumptions and conjectures; that both the Courts have failed to determine the income of Respondent No.1 by awarding Rs.8000/- as maintenance of minor and Rs.15000/- for Iddat period of petitioner is not sustainable under the law; that the judgments and decrees are based upon misapplication, misreading and non-reading of legal provisions of law as well. Main contention of learned counsel for the petitioner is that while deciding thew appeal of petitioner appellate court at first instance has allowed the appeal and at second maintained the judgment of the trial court therefore the petitioner is entitled to word allow, hence prayed that instant petition may be allowed as prayed and the judgments and decrees passed by learned lower Courts may be set-aside and suit of the petitioner may be decree as prayed.

3. Learned Counsel for the Respondent No.1 contended that learned lower Courts have rightly passed the impugned judgments and decrees by considering all the factual and legal aspects of the case whereby claim of the Petitioner was considered to the extent of dowry articles as mentioned in Nikahnama as well as maintenance; however her claim with regard to other unannounced dowry articles, which neither had accompanied with the Petitioner at the time of Rukhsati nor she mentioned the same in her written statement in earlier suit for Restitution of Conjugal rights filed by the Respondent No.1, hence submits that instant petition, being misconceived, is liable to be dismissed with cost.

4. I have heard learned Counsel for the Petitioner and Counsel representing the Respondent No.1 and have carefully examined the material available on record with their able assistance.

5. From perusal of the available record it reflects that the petitioner file suit for maintenance and recovery of Dower under section 7 of the family court act and after the said plaint the amended plaint was also filed which reflects that suit was filed for the Maintenance, Dower and Return of Dowry articles. The suit was contested by the defendant/respondent and after recording the evidence of both the parties the suit was partly decreed in favour of the petitioner.

6. The petitioner filed family appeal against the judgment and decree of the family court bearing family appeal No. 13 of 2019 whereas the respondent No.1 also filed appeal bearing family appeal No. 12 of 2019 against the same judgment and decree. The appellate court Additional District Judge Kandiyaro after hearing the parties dismissed the appeal of the respondent No. 1 and also disposed of the appeal of the petitioner on the same day viz 19-10-2019. It is observed that though the appellate court mentioned in the end of judgment as appeal allowed but the findings given in the judgment are of dismissal and it is further clarified in the said judgment after the word allow is mentioned “while maintaining the judgment and decree dated: 06-3-2019 passed by the trial court” . To clear this point as to whether the appeal of petitioner was allowed or dismissed by the appellate court, the findings of appellate court on point No.1 & 2 are reproduced as under:-

POINT NO;1

Perusal of record and proceedings of learned trial court shows that the plaintiff/appellant in order to prove her case she has examined P.W Pervez Ali, P.W Mushtaque Ahmed and P.W Muneer Ahmed Abbasi (Sub-Registrar Mehrabpur) who in their evidence have supported the case of appellant/plaintiff as well as she has produced oral as well as documentary evidence in respect of her case as the defendant/respondent has given the shop to the appellant/plaintiff in dower through registered sale deed bearing No:948, executed by the defendant/respondent and his brother Muhammad Irfan in favour of appellant/plaintiff which is also available in the record of R&Ps of learned trial court as Ex:19-B. In this connection evidence of Muneer Ahmed (Sub-Registrar Mehrabpur at Kandiaro) was recorded by the trial court as Ex:24, who produced attested photo stat copies of entry No:1679/2015 of T-P register (VIII), which clearly showing the names of Transferee Muhammad Irfan and Muhammad Usman (present respondents/defendants) both sons of Haji Muhammad Munshi, same documents are also available in the record of R&Ps of trial court as Ex:24-A, Register entry bearing R.D No:1615 is also available in the record of R&Ps as Ex:24-B. It is also admitted fact that during course of recording evidence, the defendant/respondent admitted in his cross examination regarding transfer of shop by him as Dower to plaintiff/appellant through registered sale deed. The said cause is also clearly mentioned in column No:16 of the Nikahnama which is also available in the record of R&Ps as Ex:19-A. So far as the question of some house hold articles as claimed by the appellant/plaintiff is concerned. In support of the same the father of the appellant/plaintiff Mushtaque Ahmed was examined by the trial court as Ex: 21, who fully supported the version of plaintiff/appellant in his evidence. Therefore, I am of view that the learned trial court has rightly partly decreed the suit of appellant/plaintiff while giving its findings on the issues after discussing all aspects of the case, hence, the same requires no interference by this court. This point No:1 is therefore, answered accordingly.

POINT NO:2

In view of my findings on the point No:1 I hereby allow this appeal while maintaining the judgment and decree dated 06.03.2019 passed by the trial court with no order as to costs besides leaving the parties to bear their own costs.

7. From perusal of view taken by the appellate court in the points re-produced above, it is clear that the intention of the appellate court was to dismiss the appeal, however, the word appeal allow is typed. If this is or is not the position then the petitioner has a remedy to approach the appellate court by filling application under section 152 C.P.C, for which petitioner has not approached the appellate court and filed instant petition. For ready reference section 152 C.P.C is reproduced as under:-

152. Amendment of judgments, decrees or orders. Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

8. Learned counsel for the petitioner is unable to point out any other error or illegality in the impugned judgment and decree of the trial court so also the appellate court which are based on sound reasons and passed after appreciation and reappraisal of the evidence produced by the parties and the same are not need to be interfered by this court in constitutional jurisdiction. Resultantly, instant petition is dismissed.

9. These are the reasons of my short order dated: 01-11-2021, which reads as under:-

Heard learned counsel for the petitioner and counsel for the Respondent No.1 as well. For the reasons to be recorded later on, instant petition is dismissed.

JUDGE