Family court passed ex parte decree in favour of wife to the extent of maintenance allowance for herself and for the minor whereas her claim of dower and gold ornaments was declined---Wife-plaintiff did not challenge the said decree and filed execution petition wherein husband-defendant moved an application for setting aside ex parte judgment and decree which was accepted---family court finally decree d the suit only to the extent of maintenance allowance for the wife and minor while rest of the claim in the suit was declined---Validity---Amount of Rs.5,000/- per month in case of desertion was fixed as maintenance in the Nikah Nama with mutual consent of the parties which should have been given due consideration---Nuptial disputes between the parties were consequence of unemployment of husband---No justification existed for reducing the quantum of maintenance from Rs. 5,000/- to Rs. 1,500/---Divorce certificate being a public document had presumption of correctness---Wife had been rightly held entitled for maintenance allowance beginning from July 2005 till 23-11-2007 and for the period of iddat---Wife had not challenged her portion of claim with regard to dower and gold ornaments which was declined in the ex parte decree by the family court ---Wife had acquiesced the said decision by not assailing the same through appeal---Such conduct of wife would amount to relinquishment of said part of claim---Wife would be debarred from subsequently agitating the same---Wife was having an option to file appeal but she failed to avail the same---Counter right accrued in favour of adverse party could not be discarded merely that ex parte judgment was subsequently set aside---Ex parte judgment would roll back to the extent of husband-defendant's claim---Principle of res judicata was applicable in circumstances---Wife-plaintiff could not re-agitate the claim which had already been decided finally---Period of six years from the accrual of right to sue had been provided for the recovery of maintenance allowance---Findings of both the court s below with regard to quantum of maintenance were in contravention of stipulation contained in the Nikah Nama---Wife was held entitled to maintenance @ Rs.5,000/- per month from July, 2005 to 23-11-2007---Constitutional petition was disposed of in circumstances.
Minors filed suit for maintenance allowance against their father which was decree d---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached--
PLD 2016 Lah. 622
* Minors filed suit for maintenance allowance against their father which was decree d---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached---Contention of grandfather was that he was not party to the suit and decree could not be executed against him---Validity---Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children---Such liability of grandfather was dependent upon the fact that he was in easy circumstances---If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances---family court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position---No decree could be executed against a person who was not a party to the proceedings---Executing court could not go beyond the decree ---decree passed by the family court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied---Process of execution of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree --family court could adopt the procedure provided in civil Procedure Code, 1908 for execution of its decree ---Judgment-debtor could be sent to civil prison for one year--Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful---Constitutional petition was allowed in circumstances.
PLD 2016 Lah. 622
MUHAMMAD RAMZAN Versus ALI HAMZA
Custody of minor --- Mother contracting second marriage -
Custody of minor --- Mother contracting second marriage --- Mother remarrying does not automatically tear her under the law from the custody of her children --- Holistic reading of the relevant Islamic principles , the Convention on the Rights of the Child , and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries .
Complete citations on Family Execution,
* Decree passed by the family court had to be executed either by the court which had passed the same or by any other civil court as directed by the District Judge through a special or general order---Executing court had to follow the procedure contained in civil Procedure Code, 1908---decree for restitution of conjugal rights would become inapplicable of execution if wife had proved non-payment of dower on demand---Only attachment of property of wife could be made in execution of a decree for restitution of conjugal rights---Wife could not be compelled to go and live with her husband in a decree for restitution of conjugal rights---Executing court had committed an error by giving direction for personal appearance of wife in execution of decree for restitution of conjugal rights---Impugned order passed by the Executing court for personal appearance of wife was set aside---Constitutional petition was accepted in circumstances.
2016 MLD 1430
Mst. SAIMA TABBASAM
Versus
Syed SHER SHAH
(i) Khula is a basic right of a woman under Muslim family law, (ii) Khula can only be granted by the court if she seeks the same in express terms, (iii) For the grant of Khula, her consent is vital.
Where a woman files suit for dissolution of marriage under the grounds of Dissolution of Muslim Marriage Act or through khula, there are procedural distinctions. Firstly, under Section 2 of the DMMA, various grounds (cruelty, assault, ill-treatment, etc.) are provided for judicial pronouncement of dissolving the marital relationship, which is also called fuskh. Hence, there must be some cause as per the DMMA to get a decree of dissolution of marriage under the DMMA. However, khula can be granted to a woman without establishing any ground or proving the cause to the court. Secondly, if the grounds under the DMMA are established by a woman, then Section 5 of the said law protects her right of dower as the same shall not be affected. Whereas in khula, she has to waive or forgo her right of dower. Lastly, in terms of procedure in the case of khula, once the pre-trial reconciliation fails under Section 10 of the Family Courts Act, 1964 (FCA), the court is bound to immediately pass a decree for the dissolution of marriage.18 Whereas the decree for dissolution of marriage under the DMMA can only be passed after the recording of evidence under Section 11 of the FCA. Therefore, termination of marriage under the DMMA or by way of khula exists in distinct and different legal domains with separate consequences.
C.P.L.A.4657/2022
Ibrahim Khan thr. Attorney Muhammad Zaheer v. Mst. Saima Khan and others
Mrs. Justice Ayesha A. Malik
15-02-2024
20-03-2024
According to section 6(2A) of the Muslim Family Laws Ordinance, 1961, the Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the columns of the nikahnama form with specific answers of the bride or the bridegroom.
According to section 6(2A) of the Muslim Family Laws Ordinance, 1961, the Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the columns of the nikahnama form with specific answers of the bride or the bridegroom. Moreover, according to section 5(5) of the said Ordinance, the form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as may be prescribed. If Nikah Khawan/Registrar fails to perform his duties diligently instead of taking any action against any party, Nikah Khawan/Registrar should be held accountable.
Though, the direction/observation of this Court does not admit any kind of ambiguity but even then public-at-large is facing unnecessary litigation on account of inefficiency on the part of the Nikah Khawan/Registrar towards completion of entries in Nikah Nama inviting stern action against the hoodlums.
According to the custom prevalent in our society, families having agriculturist background, use to give dowry articles to their daughters at the time of marriage irrespective of the fact as to whether it was her first or second marriage.
Writ Petition No.4265 of 2020.
Irfan Mohsin Versus Additional District and Sessions Judge & others
Date of hearing: 06.03.2024 & 12.03.2024.
2024 LHC 920
ماں کی دوسری شادی اسکو بچوں کی حضانت سے محروم نہیں کرسکتی
2024 S C M R 486
Custody of minor --- Mother contracting second marriage --- Mother remarrying does not automatically tear her under the law from the custody of her children --- Holistic reading of the relevant Islamic principles , the Convention on the Rights of the Child , and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries .
Civil Petition No. 3718 of 2023
Mst . QURAT -UL-AIN versus STATION HOUSE OFFICER , POLICE STATION SADDAR JALALPUR JATTAN , DISTRICT GUJRAT and others
چچا کیخلاف دعوی نان ونفقہ دائر نہ ہو سکتا ہے
Muhammadan Law by D.F. Mulla is neither a statute nor a custom or usage, therefore, not binding on Courts. Claim of maintenance from grandfather and paternal uncle is on different principles of Islamic Jurisprudence, hence paternal uncle could not replace the grandfather, as defendant, after his death.
PLJ 2024 Lahore 135
Present: Shahid Jamil Khan, J.
MAHNOOR SHABBIR--Appellant
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 62482 of 2022, decided on 12.12.2023.
Muhammadan Law--
----Para 337--Constitution of Pakistan, 1973, Art. 199--Suit for maintenance--Decreed--Appeal--Allowed--Paternal uncle--Distant relative--Inheritance of paternal uncle--Poor instant relative--Counsel for petitioner was asked whether Section 373 of Muhammadan Law is a statutory provision, answer was in negative--He was also asked to produce any judgment where decree of maintenance against distant relative is issued on basis of Section 373, he could not produce-- The petitioner could not establish before Appellate Court that she would get inheritance from estate of respondent on his death--Petitioner could not prove herself to be poor distant relative--The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence--If suit was filed to claim maintenance from grandfather after death of father, paternal uncle could not have been replaced as defendant in shoes of grandfather--Petition dismissed.
[Pp. 137, 138 & 139] A, B, C & D
PLD 2021 FSC 1.
M/s. Waqas Umer Sial, Ch. Muslim Abbas and Abbas Sheheryar Chaudri, Advocates for Petitioners.
Nemo for Respondents.
Date of hearing: 12.12.2023.
Judgment
Petitioner has assailed judgment dated 08.06.2022 passed by Additional District Judge, Lahore, exercising appellate jurisdiction, whereby suit of the petitioner for maintenance against her paternal uncle has been dismissed by reversing the judgment and decree by the trial Court.
2. Learned counsel for the petitioner submits that appeal of respondents is time barred but no finding in this regard is available in the impugned judgment.
On merits, he apprised that the suit was originally against grandfather and after his death, the paternal uncle was substituted as defendant. The claim of maintenance allowance is based on Section 337 of Muhammadan Law and the petitioner claim herself to be a poor distant relative, who would get inheritance from the property of paternal uncle, received by him as a consequence of death of his father and petitioner’s grandfather. Also submits that grandfather had inherited some property on death of petitioner’s father which has further been devolved to the respondent-uncle.
3. Operative part of the Appellate Court’s judgment deciding the legal question is reproduced hereunder:
“7. The observation of learned Trial Court qua fixation of liability on the Appellants/Defendant Nos. 3 & 4 being fallen under prohibited degree of other/poor relative was although without any support of statutory law or case law yet it seems that probably the provision of Section 373 of Muhammadan Law was in the mind of learned Trial Court which reads:
373. Maintenance of other relations
“Persons who are not themselves poor are bound to maintain their poor relation within the prohibited degrees in proportion to the share which they would inherit from them on their death. A father is not bound to maintain his son’s widow.”
8. Thus, as above the relatives having prohibited degree can be burdened to pay maintenance allowance to their poor relatives proportionately as per their share of inheritance of such poor relatives. Although it is not debatable at all that the appellants being real paternal uncles of the respondent/plaintiff do fall in her prohibited degree yet it is also indisputable that they will not get any share of inheritance of the estate of late father Shabbir Ramzan of the respondent/defendant for being survived through his parents, wife and children and therefore, his real brothers could not be considered his beneficiary legal heirs and they will also not get any share of estate (God forbid) of the respondent or her mother, in the attending situation. Therefore, the Court is of humble but firm view that no benefit of said provisions of Section 373 of Muhammadan Law can be extended in favour of the respondent/plaintiff against the Appellants/Defendants Nos.3&4.
9. Besides above, the Appellants/Defendants Nos.3&4 could be burdened to pay maintenance allowance to the respondent/plaintiff, had she had no resources or only being poor and unable to meet both ends together to carry on her mundane life. However, learned Trial Court itself noted at lower part of its finding in earlier quoted Paragraph No. 6, at the cost of repetition again, as under:
“It is ineluctable to highlight there that minor/plaintiff is getting education and her monthly paid fees slips are available on record in this regard. It clearly unveils that minor/Plaintiff mother is also in good stable condition who is rendering quality of education to her daughter.”
[Emphasis supplied]
4. Learned counsel for the petitioner is asked whether Section 373 of Muhammadan Law is a statutory provision, the answer is in negative. He is also asked to produce any judgment where decree of maintenance against the distant relative is issued on the basis of Section 373, he could not produce.
Federal Shariat Court in its judgment Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and four others (PLD 2021 FSC 1) has opined on the issue in following words:
“There is a plethora of judgments of the superior Courts of Pakistan, where they have differed from the so-called text books of Muhammadan Law including Mulla’s book. This trend was initiated soon after independence of Pakistan. Although, in a very limited way and sporadically, this trend was there even in pre-partition era of British India. After the independence of Pakistan, this trend became a norm by the superior Courts of Pakistan to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. For example; It was stated in a judgment very clearly while deciding a matter of Hisanat, which is an issue of Muslim Personal Law as:
“It would be permissible for the Courts to dif fer from the rules of Hisanat as quoted or stated in the text books like book of Mulla”. [Reference PLD 1965 W.P. Lahore 695]. This trend kept on evolving, and is still evolving. This process is primarily based on following factors:
(i) the superior Courts are clearly of the view that the opinion contained in text book of so - called Muhammadan Law, are neither final nor binding upon the superior Courts of Pakistan. While discussing paragraphs 352 and 354 of Mulla’s book the Supreme Court held:
“It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.” (2014 SCMR 343 para 13)
(ii) It is clearly mentioned in number of judgments that the book of D.F. Mulla is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. While dilating upon paragraph 113 of the Mulla’s book it was held:
___________
“Mulla’s “Principles of Muhammadan Law” is a reference or a text book as some times referred in our judgments like other books of this category and not a statutory book. Usually, when the Courts consult it, this exercise is just like consulting a b ook where the opinions of the great Muslim jurists are easy to get because opinions are mentioned in English language in an over simplified language and paragraphs of the book are numerically marked. The very style of composition of this book often create a confusion amongst the reader that it is a statute book which it is not. Perhaps this is the reason why the petitioner states in his petition that the book of D.F. Mulla comes within the purview of custom and usage which is absolutely wrong and incorrect.”
[Emphasis supplied]
D.F Mulla’s Muhammadan Law is just a text book, which can be referred or relied upon by Courts like any other text book. Being neither a statute nor a custom or usage, the opinion in it is not binding.
5. Without prejudice to the legal position, ibid, in this Court’s opinion, the findings given by the Appellate Court are factual and based on the Section 373 holding that conditions of this Section of the text book are not met. The petitioner could not establish before the Appellate Court that she would get inheritance from the estate of her respondent-paternal uncle on his death.
The Appellate Court also determined that the petitioner could not prove herself to be poor distant relative. The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence.
6. In this Court’s opinion, if suit was filed to claim maintenance from grandfather after death of father, the paternal uncle could not have been replaced as defendant in the shoes of grandfather.
No case for interference is made out, therefore, the petition is dismissed.
(Y.A.) Petition dismissed
Custody of minor --- Right of Hizanat--- Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat -
P L D 2024 Supreme Court 291
Custody of minor ---
Right of Hizanat--- Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat --- Legality --- Mother is entitled to the custody ( Hizanat ) of her male child until he has completed the age of seven years and of her female child until she has attained puberty --- These rights cannot be denied to the mother as any such action would be contrary to law . Any agreement related to the custody of minor child ( which stops the mother from claiming custody ) would be violative of law and cannot be enforced by a Court of law --- Any Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat of a minor child would be violative of law and cannot be enforced by a Court of law .
Suit for dissolution of marriage and recovery of dower ( ten tolas gold ornaments and one - third share of the house ) --- Dower , dispute over -
P L D 2024 Peshawar 25
Suit for dissolution of marriage and recovery of dower ( ten tolas gold ornaments and one - third share of the house ) --- Dower , dispute over --- Jurisdiction of the Family Court --- Scope --- Actionable claim --- Scope --- Dower was claimed against the defendant / husband on the basis Kabeen Nama ( marriage - deed ) according to which the husband had bound down himself to give gold ornaments to his wife at the time of Nikah which would be the sole ownership of wife --- Family Court decreed the dower prayed for by the petitioner / plaintiff , which judgment and decree was maintained by the Appellate Court --- Contention of the petitioner / defendant that gold ornaments as mentioned in the Kabeen Nama ( marriage - deed ) was an actionable claim for which jurisdiction vested in the Civil Court --- Held , that the Kabeen Nama ( marriage - deed ) was admittedly a matrimonial document between the parties which was not such an independent contract which might be interpreted as an ' actionable claim ' within the contemplation of the provisions of the Transfer of Property Act , 1882 ( ' the Act 1882 ' ) --- Section 3 of the Act 1882 means a claim to any debt ( other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property , or to any . beneficial interest in moveable property not in the possession , either actual or constructive of the claimant , which the Civil Court recognizes as affording grounds for relief , whether such debt or beneficial interest be existent , accruing , conditional or contingent --- Hence , the claim of wife for gold ornaments per marriage - deed , was a consideration of marriage for which the Family Court had the jurisdiction to adjudicate upon --- No illegality or infirmity was found in the impugned judgment passed by the Appellate Court
Tauheed Farooqi vs Faiqa Anmol
P L D 2024 Peshawar 25
ایسا اقرار نامہ جو والدہ کے اپنے بچوں کے حق حضانت سے دستبرداری کی بابت ہو سراسر غیر قانونی ہے
P L D 2024 Supreme Court 291
The delivery of Mahr is one such right, the dutY of which is bestowed upon the husband for the financial support and stability of his wife. Such entitlement to dower has the origin in the HoIy Quran, and the inspiration of the same entitlement has been made part of the statutory law.
Para 352 (5) of the Muhammadan Law provides that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. These rights cannot be denied to her as any such action would be contrary to law. Any agreement related to the custody of minor child would be violative of law and cannot be enforced by a Court of law. This Court in a reported case titled Mst. Beena v. Raja Muhammad and others [PLD 2020 SC 508], at paragraph 8, held that the agreement where mother surrendered the custody of her child or the agreement which stopped the mother to claim his custody is not lawful; it is contrary to the Islamic principles governing Hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which is against public policy is void, as stipulated in section 23 of the Contract Act.
It is imperative that the wife must be made a party to the agreements concerning her rights. A wife enjoys exclusive and absolute right over her dower and the same could not be waived via lqrarnama/ Agreement/Compromise and any such document, registered or unregistered, attempting to compromise the wife’s right to dower, especially in the context of familial dissolution, lacks legal validity. Further, any Iqrarnama/ Agreement/Compromise made by the mother waiving her statutory right of Hizanat of a minor child would be violative of law and cannot be enforced by a Court of law.
C.A.1227/2016
Mst. Haseena Bibi v. Abdul Haleem & others
P L D 2024 Supreme Court 291
Unless possession of the immovable property constituting dower of a wife is given to her, and/or the share of the produce thereof is paid, in essence, the obligation to pay the dower has not been discharged by the husband
Unless possession of the immovable property constituting dower of a wife is given to her, and/or the share of the produce thereof is paid, in essence, the obligation to pay the dower has not been discharged by the husband, which precisely is the position in the present case. The conduct of the petitioner of delaying the payment of the agreed dower and denying possession of the dower property and/or usufruct in form of the produce thereof, on the ingenuine and shallow plea that he was obligated only to transfer the land and not the possession reveals the contumacious conduct of the petitioner as to further protract and linger on the matter by involving, rather dragging, the respondent in uncalled for litigation that cannot be countenanced by this Court in constitutional jurisdiction.
Writ Petition No. 15918/2021
Muhammad Ali Khan Versus Additional District Judge etc.
Date of Hearing: 06.02.2024
-- Mother and minor girl were living at a place / district different from the place / district where the father moved application for custody .... Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree -
PLD 2023 Lahore 412
Application for the custody of minor girl --- Due service --- Fair trial --- Service upon the defendant --- Presumption --- Mother and minor girl were living at a place / district different from the place / district where the father moved application for custody .... Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree --- Petitioner / mother claimed that neither she was personally served nor she had any knowledge of the case proceedings --- Held , that primary controversy for the Court , in the present case , was that whether the mother was served in accordance with law before decree I was passed against her --- Without framing issues and recording evidence , the Court below had decided the factual controversy qua residential address of the mother / petitioner while relying on the photocopy of her alleged second marriage in district " K " , produced by the respondent / father --- Court also presumed the petitioner's knowledge of proceedings and service of summons on the basis that notice along with registered envelope AD were sent on her district ' K ' address and that notice was also proclaimed in the newspaper having been circulated / published from relevant division --- Neither the process server was ] produced as a witness , in the present case , to establish personal service of summons under S.8 of the Family Courts Act , 1964 , upon the mother / petitioner in accordance with law , nor any reference to his ( process server's ) report to the said effect had been made in the impugned order --- In the absence of any acknowledgement due available on record , service of the notice been presumed by the Court below merely on the basis of al receipt available on record --- Without establishing on not be served rd that the mother / petitioner could rsonally , reliance on publication of the notice could not be considered safe to presume service of the mother / petitioner , particularly when father / respondent himself alleged in his petition for custody that she was an illiterate villager --- High Court set - aside impugned order and allowed the application of mother / petitioner for setting aside ex - parte judgment and decree --- Application of father for the custody of minor girl . would be deemed to be pending , at the place mother and minor were residing , for decision afresh in accordance with law.
-It is imperative upon Family Court to send notice to defendant regarding grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit--
PLJ 2023 Peshawar 44
Present: Muhammad Faheem Wali, J.
MUHAMMAD JALIL--Petitioner
versus
Mst. NAGINA BIBI and others--Petitioners
W.P. No. 35-D of 2022 with Interim Relief, decided on 22.9.2022.
Civil Procedure Code, 1908 (V of 1908)--
----O.IX R. 13--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage recovery of dower and maintenance allowance--Ex-parte decreed--Application for setting aside ex-parte decree--Dismissed--Time-barred--Application for setting aside ex-parte decree was filed after getting knowledge of ex-parte decree--Question of whether time limitation for filing application was to be reckoned from date of ex-parte proceedings so initiated or from date of receipt of notice of ex-parte decree--The main claim of petitioner is that his application for setting aside exparte decree is within time for good reason that he received notice of exparte decree on 30.5.2019 and on same day he applied for obtaining attested copies of order while on next day he filed subject application--Record reveals after getting knowledge of ex parte decree, application filed by petitioner is well within time--Counsel for Respondent No. 1 has not been able to show any law to rebut contention of petitioner regarding getting knowledge of exparte decree from date of receipt of notice--Lis should not be knocked out on technical grounds but endeavour of Courts should be to decide matters, involving valuable rights of parties, on merits and party to litigation should not be non-suited on mere technical grounds--ADJ was wrong in his findings through judgment impugned herein--Petition accepted.
[Pp. 46, 47 & 48] A, C, D, G & H
Ref. 2006 SCMR 631, 2008 SCMR 287, PLD 2015 Pesh. 59.
Limitation Act, 1908 (IX of 1908)--
----Art. 164--Ex-parte decree--Article 164 of Limitation Act, 1908 is applicable to an application by a defendant for an order to set aside a decree passed exparte and prescribed period of limitation of 30 days starts running from date of decree, where summons is not duly served, when applicant has knowledge of decree. [P. 46] B
Family Courts Act, 1964 (XXXV of 1964)--
----S. 9(6)(7)--Ex-parte decree--It is imperative upon Family Court to send notice to defendant regarding grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit--In view of section 9(7) of Family Courts Act, 1964, thus, onus was shifted to petitioner/defendant to prove that copy of exparte decree has been sent to him that, in turn, he has proved through producing sufficient record. [P. 48] E & F
PLJ 2017 Pesh. 1.
Mr. Muhammad Mohsin Ali, Advocate for Petitioner.
Mr. Shakil Ahmad Katikhel, Advocate and Mr. Muhammad Kamran Baloch, Advocate for Respondents.
Date of hearing 22.9.2022.
Judgment
Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Muhammad Jalil has called in question the judgment dated 28.2.2022 rendered by learned District Judge-II, D.I.Khan, whereby his appeal against the order dated 25.11.2021 of learned Civil Judge-1/Judge Family Court-I, D.I.Khan was dismissed being time barred.
2. Precise summary of the case is that the Respondent No. 1 filed a suit for recovery for dissolution of marriage, dower, maintenance, dowry and gold ornaments etc against the present petitioner before learned Civil Judge-IX/Judge Family Court, D.I.Khan. When put on notice by the Court, the petitioner/defendant appeared and contested the suit by filing his written statement but later on remained absent before the Court, thus was placed and proceeded exparte. After recording exparte evidence of plaintiff/respondent, partial exparte decree was passed in favour of Respondent No. I vide order dated 24.4.2019. Not contended with the same, the petitioner filed an application for setting aside ex-parte decree, which was dismissed by the learned trial Court on 25.11.2021. Feeling disgruntled from the said order, the petitioner preferred an appeal before learned appeal Court, which was also dismissed vide judgment dated 28.02.2022, hence the instant writ petition.
3. I have considered the arguments of learned counsel for the parties and perused the record with their valuable assistance.
4. Perusal of the record manifestly shows that impugned judgment and decree was passed on 24.4.2019 by learned trial Court while the application for setting aside exparte decree was filed on 31.5.2019 with a delay of more than 09 days. The main claim of the petitioner is that his application for setting aside exparte decree is within time for the good reason that he received notice of the exparte decree on 30.5.2019 and on the same day he applied for obtaining attested copies of the order while on next day i.e 31.5.2019, he filed the subject application. Admittedly, the petitioner had participated in trial before the learned Family Court and thereafter due to his absence, he was placed exparte which culminated into exparte decree in favour of the Respondent No. 1. In the instant case, the attitude and conduct of the petitioner is not a question but this Court has to consider the law point involved in it i.e whether the time limitation for filing application was to be reckoned from the date of exparte proceedings so initiated or from the date of receipt of notice of exparte decree?
5. After delving into the record, it is manifestly clear that petitioner has established his plea that he got knowledge when he received notice of exparte decree i.e on 30.5.2019. In legal parlance, Article 164 of the Limitation Act, 1908 is applicable to an application. by a defendant for an order to set aside a decree passed exparte and the prescribed period of limitation of 30 days starts running from the date of the decree, where the summons is not duly served, when the applicant has knowledge of the decree. The record reveals after getting knowledge of exparte decree, the application filed by the petitioner is well within time. The apex Court, while placing reliance on case Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), has also held a similar view in case Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandyar Khan (2008 SCMR 287) as:
“Article 164 of Limitation Act provides 30 days to file application for setting aside ex-parte decree because petitioner/defendant had participated in the proceeding before the trial.”
6. This Court, in case of Khayal Badshah v. Afzal Khan and 4 others (PLD 2015 Peshawar 59) has held the same view that if summons were served upon the defendant, period to set aside ex-parte decree would be governed under Article 164 of the Limitation Act which would be reckoned from the date of decree and if the summons was not served, the period for moving the application under Order IX Rule 13 C.P.C. would be reckoned from the date of acquiring knowledge of the ex-parte decree, in both the cases, it would be thirty (30) days as prescribed under Article 164 of the Limitation Act.
7. Learned counsel for the Respondent No. 1 has not been able to show any law to rebut the contention of petitioner regarding getting knowledge of exparte decree from the date of receipt of notice despite being given an opportunity to produce dictums of the Hon’ble Supreme Court of Pakistan in relation to section 9(7) of Family Courts Act, 1964. For ready reference, the sections 9(6) and 9(7) of Family Courts Act, 1964 are reproduced as under:
Sections 9(6) and 9(7) of Family Courts Act 1964
(6) In any case in which a decree is passed ex-parte against a defendant under this Act, he may apply within [32][thirty days of the service of notice under subsection (7) of the passing of the decree] to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.
(7) The notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.
8. It is worth mentioning that it is imperative upon the Family Court to send notice to the defendant regarding the grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit. In the instant case, it is apparent from the perusal of the exparte order dated 24.4.2019, wherein it is mentioned that certified copy of this order/judgment alongwith certified copy of decree sheet be sent to the defendant and concerned Union Council within three days positively through registered posts upon the expenses of plaintiff. In this respect, the petitioner stated that copy of exparte decree has been delivered to him on 30.5.2019 in view of section 9(7) of Family Courts Act, 1964, thus, onus was shifted to the petitioner/defendant to prove that copy of exparte decree has been sent to him that, in turn, he has proved through producing sufficient record. In holding this view, I am also fortified by the judgment laid down by this Court in the case titled Syed Agha Hussain Shah and others vs. Mst. Deena Bibi and others (PLJ 2017 Peshawar D.I.Khan Bench). Therefore, it is held that the application for setting aside the ex-parte decree was filed within a reasonable time. Even otherwise it has been observed in the numerous authorities laid down by the supenor Courts that lis should not be knocked out on technical grounds but endeavour of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non-suited on mere technical grounds.
9. Relying upon the dictum laid down by the apex Court as well as section 9(7) of the Family Courts Act, 1964, I am of the considered view that the learned Additional District Judge-II, D.I.Khan was wrong in his findings through the judgment impugned herein. Therefore, this writ petition is accepted, the impugned order dated 24.4.2019 and judgment dated 28.2.2022 are set aside and the application of the petitioner for setting aside the judgment and decree dated 24.4.2019 is allowed. The case is remanded to the learned Judge Family Court-I, D.I.Khan with the direction to decide the suit filed by Respondent No. 1 Mst. Nageena Bibi on merits within a period of four months expeditiously.
(Y.A.) Petition accepted
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