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Writ Petition No. 363 of 1984, decided on 16th June, 1985.

---S. 5--Suit for recovery of dower debt--Plea of limitation not embodied in written statement--No issue framed and no evidence led on point of limitation--Such plea could not even be ascertained from record--Held, upon facts obtaining on record, it was difficult to hold that suit was barred by time.--[Limitation].

---Art. 9--Constitutional petition--Contradictory pleas by petitioner in evidence and before High Court on payment of dower--Petitioner's conduct, held, disentitled him to grant of discretionary relief in constitutional petition.

Muhammad Sarwar Awan for Petitioner.

Respondent No. 3 in person.

Date of hearing: 16th June, 1985.

Mst. Najma Firdous respondent sued the petitioner for recovery of Rs. 3,000 as dower debt. The petitioner resisted the suit. The learned trial Court after appraisal of the evidence of the parties, decreed the suit. The petitioner's appeal was dismissed by the learned Additional District Judge on 11-1-1984. He has now come to this Court through invocation of writ jurisdiction.

2. It is discernible from the judgment of the learned Family Court that without raising any plea in the written statement, regarding limitation, as the argument stage, the petitioner urged the point that the suit was barred by time but it was turned down. Likewise the question of limitation was argued in appeal but the plea did not find favour with the learned Additional District Judge.

3. I have heard the learned counsel for the petitioner and the respondent in person. The submission made before the two Courts below that the suit was barred by time has been reiterated. This contention is founded on the plea that in the year 1968 the respondent filed a suit for maintenance and recovery of dower which-was compromised but no payment was made; this non-payment amounted to refusal and, therefore, the period of limitation would start from such refusal and the suit filed in March, 1982 was thus barred by time.

4. There is no merit in this argument, the respondent herself disclosed in the plaint that the previous suit ended into a compromise; thereafter she performed her matrimonial obligations; five children were born out of this wedlock but subsequently the petitioner turned out the respondent from his house and also divorced her. As already observed the plea of limitation was not embodied in the written statement., Accordingly no issue was framed and there was no occasion for the parties to lead evidence. There is thus no material on the file to show that what were the terms of the compromise and whether the petitioner refused to make the payment and when such refusal was made. Even the evidence of the parties have not been placed by the petitioner on the file of this writ petition. According to the respondent, as disclosed in the plaint. the cause of action arose to her about a month before the institution of the suit. Upon the facts obtaining on the record it is difficult to hold that the suit was barred by time. Needless to mention that in his evidence before the learned Family Court, the petitioner took up the stand that the dower debt had already been paid. However, he failed to prove the same. The submission now made by him that payment was refused rendering the suit as barred by time, runs counter to the plea that the petitioner had cleared his liability. Apart from the fact that the plea of limitation has not been established the petitioner's conduct would also disentitle him to grant of any relief in the writ jurisdiction which is discretionary.

4. For all these reasons this writ petition is dismissed, with costs.

A . A .

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