Non-payment of dower or paid on first night
Section 5 of west Pakistan family court Act (XXXV of 1964) — article 199 of constitution Petition – suit for recovery of maintenance allowance and dower was decreed – contention of husband was that he had stated before the family court that dower had been paid to the wife on the wedding night therefore, finding of courts below were incorrect – validity – mere statement before family court could not be considered as proof of payment of dower and the husband was bound to prove the same though evidence – in absence of cogent evidence, simple statement could not be considered as a proof and in such a case the onus would not shift to the wife to disprove the claim of the husband – dower in fact was a debt against the husband in case the dower amount is not paid the wife would have right to refuse the performance of her marital obligations – once it was proved that the dower had not been paid the wife would be entitled to sty away from the husband and the husband would be bound to pay maintenance to the wife – husband in the present case did not prove that he had paid dower to his wife therefore the wife was entitled to receive maintenance allowance
2013 CLC ( Islamabad) 1085
Default of Rent and adjustment of Pugree amount
Section 15 of Sindh rented Premises ordinance (XVII of 1979) – constitution Petition— tenant’s plea was that landlord could adjust pugree amount lying with him against defaulted rent – validity—pugree amount in most cases was given as advance rent by tenant while obtaining premises, which had nothing to do with monthly payment of rent – tenant’s such plea was replied in circumstances.
Depositing the Time Barred Rent
Section 16(1) of SRPO (XVII of 1979) Article 199 of Constitution Petiton – maintainability – tentative order of Rent controller for deposit of time barred rent if within the jurisdiction of Rent Controller, Constitution Petition was not maintainable against such order – where however such order had been challenged on the ground of having been passed without jurisdiction same could be set aside under constitutional jurisdiction by High Court.
Revision Dismissed on Non-Prosecution
Section 115 civil procedure code (V of 1908)
Revision dismissed for non prosecution –principles – civil revision once admitted to hearing could not be dismissed in default because it was the duty of revisional court to see if judgment and decree of subordinate court was based on proper exercise of jurisdiction lawfully vested in it and whether jurisdiction had been exercised legally and without any material irregularity – even if parties to civil revision did not render necessary assistance, the revisional jurisdiction under section 115 CPC would make it imperative for revisional court ot make appropriate order if the judgment and order were found to be in exercise of jurisdiction not vested in law in it or the court had failed to exercise jurisdiction vested in it or has acted in exercise of its jurisdiction illegally or with material irregularity.
2013 CLC (LAHORE) Page 976
Recovery of Gold Ornaments or its value
Section 5 of the west Pakistan family courts act (XXXV of 1964)—gold ornaments – market value – compensating wife/decree holder with market value of gold instead of gold ornaments – scope – wife filed suit for recovery of dowry articles against her husband and the list of dowry articles included 17 tolas of gold – suit prayed for either recovery of 17 tolas of gold or its value which was stated to e Rs. 380,000/= — trial court granted decree only for recovery of dowry articles but not its market value therefore wife was held entitled to recovery of 17 tolas and in case he was not in a position to provide the same the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market – unlike other property moveable or immoveable determination of market value of gold did not pose any difficulty as the sasem was fixed by gold market on daily basis and was readily exchangeable for case – wife was entitled to recovery of 17 toals gold ornaments or in the alternative its current market value – appeal was allowed accordingly