Andhra HC (Pre-Telangana)
Saleemunnisa Begum vs Mohd Zameeruddin on 1 September, 2003
Equivalent citations: 2003(5)ALD846, 2003(6)ALT59
JUDGMENT B. Prakash Rao, J.
1. The plaintiff, who is the wife, is the appellant herein who- seeks to assail the judgment and decree in A.S. No. 8 of 1990 dated 3.6.1991 on the file of the District Judge, Medak at Sangareddy reversing, at the instance of the respondent/ husband, the judgment and decree in O.S. No. 29 of 1987 dated 5.3.1990 on the file of the Subordinate Judge at Medak allowing the claim for recovery of Jahaz articles or their value of Rs. 43,731/- from the respondent.
2. Heard Sri Syed Sharif Ahemed, the learned Counsel for the appellant and Sro. Nowshad Ali, the learned Counsel for the respondent. The appellant in the suit sought for recovery of Jahaz articles as mentioned in Annexures A and B or their value of Rs. 41,731/- on the allegation that she was married to the respondent on 4.12.1971 at Medak as per the Muslim rites where the defendant agreed to pay dower of Rs. 2,500/- and two Deenar Sharai. The father of the appellant presented Jahaz and gold and silver ornaments as mentioned in Annexures A and B apart from a further sum of Rs. 5,000/-, which were received by the respondent. However, subsequent to the marriage, the respondent and all his family members started ill-treating and ultimately in April, 1980, she was necked out of the house by retaining all the articles as mentioned above. It was stated that in fact the respondent wanted to marry again. The appellant had filed a claim for maintenance under Section 125 Cr.PC in M.C. No. 73 of 1980 on the file of the J.F.C.M. Medak and the same was ordered. However, the aforesaid articles were retained by the defendant and therefore the appellant got issued a notice on 15.6.1987 through her lawyer which was received by the respondent on 19.6.1987 and inspite of the same, the respondent did not return any articles. Hence, the suit.
3. Contesting the suit claim, the case of the respondent in the written statement was that there is no denial to the factum of marriage but however the allegation that the aforesaid articles and the amount was paid was denied except to the extent of payment of Rs. 2,500/- and 6 1/2 tulas of gold and therefore the claim is wholly exaggerated. The allegation that there was any ill-treatment and that she was necked out from the house was also denied. In fact, the respondent got issued a notice dated 16.8.1980 wherein it was mentioned that the appellant herself taken away the Jahaz articles and therefore the entire claim is false. It was further stated that the suit as has been filed is hopelessly barred by limitation and that the appellant having deserted the respondent at Hyderabad, the Court at Medak has no jurisdiction and therefore the suit is liable to be dismissed.
4. On these and other allegations as contained in their respective pleadings, the Court below framed the necessary issues. In the trial, the appellant herself was examined as PW1 and examined PWs.2 to 4 and got marked Exs.A.1 to A.6. The respondent himself was examined as DW1 and got marked Exs.B.1 to B.4. The Trial Court on consideration of the evidence and material on record, decreed the suit accepting the plaintiff's total claim in regard to the articles and holding that the suit is well within the limitation prescribed on the ground that as the notice in Ex.A.3 was issued on 15.6.1987 and the suit was filed on 27.7.1987.
5. In the appeal filed by the respondent, the lower Appellate Court after re-appreciation of the evidence and material on record, allowed the appeal dismissing the suit on the ground that the suit is barred by limitation since there was already a prior notice in the year 1980 in Ex:A.2 and also in the claim for maintenance, no claim for return of articles was made. The learned Counsel for the appellant submits that the lower Appellate Court while considering the plea of limitation, erroneously applied Article 69 of the Limitation Act whereas the Article which is applicable to the claim is only Article 70 and therefore it cannot be said that the suit is barred by limitation since the same was filed within the time from the date of refusal to return. The learned Counsel for the respondent disputes the applicability of above Article. In view of the submissions made and on a perusal of the record, the question that arises for consideration is whether the relief as claimed by the appellant for return of Jahaz articles is governed by Article 69 or 70 of the Limitation Act, 1963. Articles 69 and 70 read as under:
Description of suit Period of limitation Time from which period beings to run "69. For other specific movable property 3 years When the property is wrongfully taken
70. To recover movable property deposited or pawned from a depositary or pawnee.
3 years The date of refusal after demand."
6. On a reading of the aforesaid two Articles, it is clear that under Article 69, the claim pertains to any specific movable property as contemplated under Sections 7 and 8 of the Specific Relief Act, whereas Article 70 deals with the recovery of movable property deposited or pawned from a depositary or pawnee. Therefore, as long as there is no such deposit or pawn as contemplated, the said Article will not have any application. The deposit contemplates entrustment. Even any retention between bailor and bailee squarely falls within the said provision. In view of the same, retention of property by the husband cannot be equated to a deposit or pawn as contemplated under Article 70 of the Limitation Act. The claim being only for recovery of the Jahaz articles belong to her and the same having been illegally retained in spite of demand, it only follows that retention is wrongful but it cannot be equated to deposit or pawn. In the circumstances, it is quite clear from a bare reading of Article 70 of the Limitation Act, the same will not have any application to the facts of the present case. Therefore, the cause of action arose on the date of refusal after demand and the limitation starts running from the date on which such property is wrongfully retained. In view of the above, the undisputed facts in this case are that the parties are married on 4.12.1977 and subsequently in view of the disputes, a demand was made by the appellant by a letter dated 11.7.1980 followed by a notice Ex.A.6 dated 16.8.1980. In the meantime, there was a claim by the appellant for maintenance under Section 125 Cr.P.C. which was allowed. Further, the present suit having been filed on 27.7.1987, no claim as such in regard Jahaz was made by the appellant at any time earlier. Even according to the appellant, she was necked out of the house in April, 1980 without her articles or the amounts to which she is entitled to. In the circumstances, it can be safely held, as rightly observed by the lower Appellate Court, that the cause of action arose in April, 1980 or on the date of issuance of notice under Ex.A.6 but not when subsequent demand was made. Even in the plaint, it is not the case of the appellant that she had deposited the articles and money with the defendant but according to her, the defendant took away the same the father of the plaintiff at the time of marriage. Since April, 1980, when she was alleged to have been driven away, there was no claim or demand for the articles and money till demand is made in the year 1987. There is absolutely no explanation for failure to make such claim. In view of the same, it has to be held that the appellant's claim as has been filed and claimed is barred by limitation and the same was rightly rejected by the lower Appellant Court. Hence, I do not find any merits in the appeal nor any substantial question of law. The appeal is accordingly dismissed. No order as to costs.