Shaji vs Remya

Amit Rawal, J.

The present appeal is directed against the judgment and decree dated 07/03/2019 rendered in O.P.No.1278/2016 filed by the wife claiming return of the gold ornaments and also past maintenance at the rate of ₹4,000/- per month for six months with 6% interest from the date of order till realisation along with an application seeking condonation of 1526 days of filing delay. The appellant in a petition filed by the respondent/wife for claiming the return of the gold sovereigns in 2016 had appeared and contested the matter by denying all the allegations including receipt of 42.5 sovereigns of gold ornaments, household articles worth ₹30,000/- and other goods and articles. It was alleged that no gold ornaments were taken by the appellant as the trustee. The allegation of ill treatment/cruelty was also denied. Marriage between the parties took place on 30/01/2008, that time, was working in gulf. Since the parties were at variance, the trial court framed the following points for determination.

Whether the respondent has taken 40 sovereigns of gold ornaments of the petitioner and 8.5 sovereigns of gold ornaments of the daughter as a trustee?

Whether the respondent has taken household articles worth Rs.40,000/- from the petitioner as a trustee?

Whether the petitioner is entitled to get a decree for return of gold ornaments and value of house hold articles as prayed for?

Whether the petitioner is entitled to get past maintenance? If so, what is the quantum?

Relief and costs?

The respondent/wife examined five witnesses, PW1 to PW5 and brought on record Ext.A1 to A16, that is, photographs, FIR, negatives, screenshot of whatsapp, statement of accounts, gold loan register, copy of the sale deed, birth certificate and building tax details whereas the husband examined four witnesses, RW1 to RW4 and brought on record Exts.B1 to B4 documents, that is, copy of the FIR No.1278/2016, Final report No.1278/2016, reconciliation report and his passport. Trial court on the basis of the evidence brought on record much less the oral and documentary, decreed the O.P. directing the appellant to return 48.5 sovereigns of gold within a period of one month from the date of the judgment or value of the gold ornaments at the rate of ₹22,000/- per sovereign with 6% interest, ₹40,000/- with 6% interest towards the value of the household articles and ₹4,000/- past maintenance for a period of six months along with interest at the rate of 6%.

Learned counsel appearing on behalf of the appellant submitted that the appellant came to India only on 13/01/2022 after the pronouncement of judgment on 07/03/2019, contacted his counsel and came to know about the aforementioned ex-parte judgment and decree and applied for certified copy in July, 2022. After reaching India, he was arrested in execution proceedings in M.C. and was put to Jail and released on 29/04/2023,. He then contacted the counsel to file the appeal but the file was misplaced and it was only traced out only on 05/06/2023 and thus a delay of 1526 days in filing the appeal had occurred. Even otherwise, on merits he argued that the judgment is based upon the photographs and negatives, and the gold register brought on record has not been proved thus the onus on the respondent/wife remained undischarged. The court believed the version of the respondent/wife vis-a-vis the photographs which cannot be an un-rebutted evidence for drawing the adverse inference. The court ought to have taken adverse inference against the documents summoned to be produced by RW2, which were not produced.

We have heard the learned counsel for the parties and appraised the paper book. The marriage between the parties was solemnized on 30/01/2008. Two children out of the wedlock were born on 18/01/2012 and 28/01/2016. Both are with the respondent/wife. The allegation of the respondent/wife in the pleading was that she was provided with 42.5 sovereigns of gold ornaments, household articles worth ₹30,000/- and steel almirah worth ₹10,000/- at the time of the marriage and on the birth of their daughter, 8.5 sovereigns of gold ornaments were also given. Respondent/wife examined herself as PW1 and PW2 is her mother. PW3, the Branch Manager of District Co-operative Bank Thurman Branch was examined to prove that the appellant for constructing the house in the year 2009 had obtained a loan of ₹4.5 lakhs, which was issued in three installments. Exts.A8 and A9 are the account statements testifying the aforementioned loan. Ext.A12 series documents proved that the respondent/wife and her parents have pledged the gold ornaments between the period 2012 to 2014. Even the loan was also not cleared compelling them to sell the gold ornaments. PW5 Usman is the one who sold the property to the father of the respondent as per the document No.2473 of 2015. There was a dispute with regard to the passing of the consideration. The photographs brought on record reflected that the respondent/wife was wearing gold ornaments. All the witnesses were extensively cross-examined but nothing contrary came on record to discredit their statement. Respondent's witnesses were called upon to produce the documents before the court in support of the allegations made in the petition, but the same were not produced in the court. The appellant/husband admitted that during the year 2009, he constructed a building by spending ₹20 lakhs, but the loan was only for Rs.4.5 lakhs. The court drew the inference that it was on account of the funds provided by the wife and also with regard to the gold ornaments of the wife, he constructed the building. All these factors weighed in the mind of the court while decreeing the suit. We do not find any illegality or perversity in the impugned order of the trial court as the order is based upon preponderance of the evidence.

As far as the contention in the application seeking condonation of delay, each and every days of delay has not been explained. Thus the Mat.Appeal is dismissed for lack of merits as well as on account of delay.