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Civil Revision No. 353/1) of 1984, decided on 7th January,1987.

(a) Civil Procedure Code (V of 1908)

‑‑‑S. 115‑‑Defendant had been absenting himself from proceedings and failing to produce evidence in rebuttal of respondent /plaintiff's suit for recovery of dowry against him in spite of many opportunities‑‑Suit of plaintiff being based on unrebutted evidence produced by her on record and convincing narration of her claim was decreed by Trial Court in her favour and appeal filed by petitioner against decision of Trial Court was dismissed by Appellate Court below‑‑Contention of petitioner that appellate Court below had dismissed his appeal merely considering his previous default, was repelled by High Court in revisional jurisdiction‑‑Appellate Court below no doubt had taken notice of previous non‑co‑operative conduct of petitioner, but that was not only consideration for dismissal of his appeal.

‑‑‑S. 115 & O. XXXIII, R. 1‑‑Forma paupris suit‑‑Defendant himself conceded twice before Trial Court that plaintiff deserved to be declared as pauper‑‑Collector had also made report in favour of plaintiff‑ Contention of defendant raised at later stage in revision before High Court that plaintiff was not pauper as she being in service could afford to pay court‑fee, held, could not be entertained when such plea was neither raised before ‑Trial Court nor before Appellate Court below.

Ch. Inayat Ullah for Petitioner.

Pervaiz Akhtar for Respondent.

Date of hearing: 30th April, 1984.

Parties were married in the year 1968. After her desertion, the respondent Mst. Surraya Begum filed a suit in forma‑paupris on 3‑6‑1973 for recovery of cost of her dowry articles which were continued to be retained by the defendant. He contested the suit on the basis of his written statement dated 22‑4‑1975 wherein while denying that the articles claimed by the plaintiff had ever been given to her, he specifically stated that the goods which were given to the plaintiff are available (with him) and he is willing to return them but did not dispute their value put by the plaintiff. Only one issue was, at that stage, settled to be tried, namely, what was the dowry of the plaintiff The suit was set down for evidence of the parties to be recorded on 24‑9‑1975 when the defendant's counsel made a statement that he did not have the instructions to pursue the suit whereat ex‑parte proceedings were ordered to be taken against the defendant and after recording ex‑parte evidence of the plaintiff comprising of her own statement, trial Court passed an ex‑parte decree on 24‑9‑1975 in favour of the plaintiff. Defendant filed an appeal thereagainst which was accepted by the learned District Judge on 14‑7‑1976 to remand the case for decision on merits. Parties were directed to put in appearance in the trial Court on 20‑7‑1976 when, for such reasons as are not available from the record, trial Court put the suit off to 31‑7‑1976 for the defendant filing his written statement which he filed actually on 8‑10‑1976, after two adjournments. Therein the defendant took up an altogether contradictory stand and alleged that she had taken away the ornaments and also the silken clothes and that the remaining goods of her dowry were also taken away by the plaintiff and defendant does not have any articles. Thereat learned Civil Judge again settled issues and set down the suit for evidence being recorded on 12‑11‑1976. Ultimately, plaintiff examined herself as P. W.1 was examined two more witnesses to close her case on 31‑3‑1977. In rebuttal, defendant got examined two witnesses and closed his case on 22‑6‑1977 without himself entering the witness‑box. Trial Court thereafter heard the arguments and decreed the plaintiff's claim in full against the defendant on 29‑6‑1977. He again preferred an appeal which was accepted by a learned Additional District Judge on 9‑7‑1978 for the suit being given a proper trial after framing further issues, and remanded the suit accordingly. Three additional issues were then settled as issues No.3‑A to 3‑C and plaintiff's preliminary evidence was recorded again on 28‑2‑1979 to put off the suit to 28‑4‑1979 for the evidence of the defendant who got two adjournments to produce his evidence, one on payment of costs, to have the suit put off to 29‑11‑1979 on which date neither the defendant himself appeared nor his counsel attended with the result that he did not produce his evidence and was once again placed ex‑parte to put off the suit to 22‑12‑1979 for hearing of arguments which the learned trial Judge did not hear for a number of dates more until the defendant's counsel started attending in the suit and the plaintiff applied on 25‑1‑1980 to have the suit amended to claim the current value of her articles which was allowed and she claimed Rs.52,759 as the price of her articles. Ultimately, after hearing the arguments, learned trial Judge decreed her suit on 17‑6‑1981 for a sum of Rs.23,739/‑ after allowing a 10 rebate of depreciation on the value of articles other than ornaments.

2. An appeal thereagainst filed by the defendant was dismissed on 22‑11‑1983 by a learned Additional District Judge to affirm the trial Court's decree on account of absence of rebuttal. He has now come up to this Court on revision.

3. Learned counsel has not addressed any argument before me with regard to the merits of the case which do not appear to have been contested even in the appeal below. He has simply contended that in spite of directions twice given in the appeals filed by the defendant against the ex‑parte decrees for this suit being decided on the basis of the evidence of the parties, learned Additional District Judge has dismissed his appeal upon a consideration merely of the previous defaults of the defendant. This contention does not have any merit because it conveniently ignores the non‑co‑operating conduct of the defendant and the fact that he has himself not produced the evidence in rebuttal of the plaintiffs case, as has been mentioned already, so much so that he did not have even his own statement recorded at any stage against the plaintiffs statement recorded thrice to give a consistent and convincing narration of her claim. It is this conduct of the defendant which has been rightly taken notice of in the appeal below. I have no doubt that the defendant has been playing the game of hide and seek R, in repeatedly absenting himself from the proceedings to later have the process annulled with the magnanimity of the appellate judges which has cost her more than a decade to have her legitimate claim decreed.

4. The only argument raised before me by the learned counsel is that since the plaintiff‑respondent is in service, therefore, she could well‑afford to pay the Court‑fee and did not deserve to have been allowed to sue in forma paupris. There are two statements made by the petitioner's counsel in the trial Court on 23‑5‑1974 and 10‑2‑1975 (both duly signed) to concede that the plaintiff deserved to be declared a pauper. It is too late in the day for the defendant now to raise this B objection because even the Collector had so reported and the petitioner has not moved the trial Court at any stage for her being dispaupered nor has he raised such a plea in the appeal below, therefore, I am not' persuaded to entertain this contention at this stage.

5. No other point has been argued.

6. There is no merit in this Civil Revision which is accordingly dismissed with costs throughout. Respondent's costs all along will also be payable by the defendant in addition to the decree passed in her favour.

H. B. T. /M‑23/L Revision dismissed.

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