2006 PLP 420 (MLD)
NUSRAT ALI — Petitioner Versus JUDGE FAMILY COURT, TEHSIL CHINIOT, DISTRICT JHANG and another — Respondents
| Citation | 2006 PLP 420 (MLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | NUSRAT ALI — Petitioner Versus JUDGE FAMILY COURT, TEHSIL CHINIOT, DISTRICT JHANG and another — Respondents |
Q1: What are the key laws and sections cited in 2006 PLP 420 (MLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 PLP 420 (MLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2006 PLP 420 (MLD) (NUSRAT ALI — Petitioner Versus JUDGE FAMILY COURT, TEHSIL CHINIOT, DISTRICT JHANG and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Naveed Ahmed Khawaja for Petitioner.
- Nasim Ullah Khan Niazi for Respondent No.2.
- 3. I have heard the learned counsel for the parties and have examined the record, appended herewith. No doubt, order of setting aside of ex parte proceedings against the petitioner dated 19-2-2004 was conditioned by payment off costs of Rs.500 but respondent No.1 acted in haste in striking of defence of the petitioner in spite of the fact that his counsel was ready with filing of written statement which, as a matter of fact, was attempted to be filed. Request of the learned counsel for the petitioner for payment of costs of Rs.500 on the next date of hearing was incorrectly turned down, though he had stated at the Bar that the petitioner was sick and in his absence he was not in a position to pay the awarded costs which shall be paid on the next date of hearing. This statement of the counsel should have been believed and by entertaining the written statement on behalf of the petitioner for which purpose the suit was fixed, payment of costs should have been deferred. This treatment should have been meted out in order to dispense justice A between the parties, especially when there was nothing on the file to doubt statement of the learned counsel for the petitioner, made at the Bar. Learned counsel for respondent No.2 could not point out any prejudice to the rights of his client had the case been adjourned or adjudicated upon, in the manner noted above. Law regarding procedural matters is firmly settled by this time and there is no cavil about the proposition that disputes among the parties should be attempted to be determined/decided on merits instead of knocking out any of them on technicalities. It goes without saying that the impugned order was not only harsh but also took away a vested right to contest the suit of respondent No.2 and that too without any just/fair cause. Record also revealed that petitioner's defence was struck on 8-6-2004, which was the first date fixed for filing the written statement, hence in this manner as well, petitioner was not given fair opportunity to comply with the orders dated 8-5-2004.
Headnotes / Summary
Ss. 5, Sched & 8, 9 & 11
Constitution of Pakistan (1973), Art.199
Constitutional petition
Suit for recovery of dowry articles
Defendant, who was served through citation in newspaper, having failed to appear before the Court, was proceeded against ex parte
Defendant appeared on same day before Family Court and moved application for setting aside ex parte order, which order was set aside subject to payment of costs and case was adjourned for filing of written statement
Defendant, on the adjourned date of hearing failed to appear before Family Court due to his sickness, but his counsel attempted to file written statement without paying amount of costs
Request of counsel of defendant for payment of costs made on next date was declined and his defence was struck
No doubt, order of setting aside of ex parte proceedings against defendant was conditional on payment of costs, but Family Court had acted in haste in striking off defence of defendant despite the fact that his counsel was ready with the written statement to file
Request of counsel for defendant for payment of costs on next date of hearing was improperly turned down by Family Court, though defendant was reported to be sick and in his absence, his counsel was not in a position to pay awarded costs and he had assured that the same could be paid on next date of hearing
Statement of counsel of defendant should have been believed and by entertaining written statement on behalf of defendant for which purpose suit was fixed, payment of costs needed to have been deferred
Said treatment needed to have been meted out in order to dispense justice between the parties
Counsel for plaintiff could not point out any prejudice to have been caused to the rights of his client, had the case been adjourned or adjudicated upon
Disputes among parties should be attempted to be determined/decided on merits instead of knocking out any of them on technicalities
Defence of defendant having been struck off on date which was the first date fixed for filing written statement, he was not given fair opportunity to comply with order of payment of costs
Impugned order which suffered from serious illegalities and was contrary to settled principles, was declared to be void, illegal and of no legal consequences, by High Court in constitutional jurisdiction.
Judgment & Decree
MUHAMAMD MUZAMMAL KHAN, J.
Instant constitutional petition assailed order dated 8-6-2004 passed by the learned Judge Family Court (respondent No.1), whereby defence of the petitioner was closed and prayed for its adjudgment.
2. Succinctly, relevant facts are that respondent No.2 filed a suit for recovery of dowry articles, wherein petitioner being defendant was served through citation in newspaper daily "Soort-e-Hall" and on account of his failure to appear before the Court, he was proceeded against ex parte vide order dated 19-2-2004. Petitioner on the same day, appeared before the learned Judge Family Court and moved an application for setting aside ex parte order dated 19-2-2004. It appears that on 8-5-2004 respondent No.2 conceded to the application for setting aside the ex parte proceedings and the same were set aside subject to payment of costs of Rs.500. Case was adjourned for filing of written statement on 8-6-2004. On this date, petitioner was reportedly sick and did not appear before respondent No.1 but his counsel attempted to file written statement on his behalf without paying costs of Rs.500. A request for payment of costs on the next date was made which was declined and petitioner's defence was struck. Case was adjourned for recording of ex parte evidence of respondent No.2. Petitioner aggrieved of order dated 8-6-2004 striking down his defence, filed instant constitutional petition with the prayer noted above. Respondent No.2 in response to notice by this Court has appeared and is represented through her counsel.
3. I have heard the learned counsel for the parties and have examined the record, appended herewith. No doubt, order of setting aside of ex parte proceedings against the petitioner dated 19-2-2004 was conditioned by payment off costs of Rs.500 but respondent No.1 acted in haste in striking of defence of the petitioner in spite of the fact that his counsel was ready with filing of written statement which, as a matter of fact, was attempted to be filed. Request of the learned counsel for the petitioner for payment of costs of Rs.500 on the next date of hearing was incorrectly turned down, though he had stated at the Bar that the petitioner was sick and in his absence he was not in a position to pay the awarded costs which shall be paid on the next date of hearing. This statement of the counsel should have been believed and by entertaining the written statement on behalf of the petitioner for which purpose the suit was fixed, payment of costs should have been deferred. This treatment should have been meted out in order to dispense justice A between the parties, especially when there was nothing on the file to doubt statement of the learned counsel for the petitioner, made at the Bar. Learned counsel for respondent No.2 could not point out any prejudice to the rights of his client had the case been adjourned or adjudicated upon, in the manner noted above. Law regarding procedural matters is firmly settled by this time and there is no cavil about the proposition that disputes among the parties should be attempted to be determined/decided on merits instead of knocking out any of them on technicalities. It goes without saying that the impugned order was not only harsh but also took away a vested right to contest the suit of respondent No.2 and that too without any just/fair cause. Record also revealed that petitioner's defence was struck on 8-6-2004, which was the first date fixed for filing the written statement, hence in this manner as well, petitioner was not given fair opportunity to comply with the orders dated 8-5-2004.
4. For the reasons noted above, impugned order dated 8-6-2004 suffered from serious illegalities and being contrary to settled principles of law, is not sustainable. This petition is accordingly allowed and impugned order dated 8-6-2004 is declared to be void, illegal and of no legal consequence with the result that the order dated 8-5-2004 passed by respondent No.1 stands revived whereunder the petitioner shall be granted one final opportunity of filing written statement subject to payment of the awarded costs of Rs.500. There will be no order as to costs. H.B.T./N-114/L?????????????????????????????????????????????????????????????????????????????????? Petition allowed.