1989 PLP 145 (MLD)

Date of hearing: 16th January, 1989. Aggrieved by the order of Controlling Authority/Collector, Sialkot dated 3‑9‑1985, affirming order of Chairman Arbitration Council dated 2‑2‑1985, awarding maintenance to respondent No. 3 at the rate of Rs. 400 p.m. for the past five years and for the future, present petition was resorted to which was admitted to regular hearing on 18‑12‑1985 and operation of the impugned order was suspended subject to the condition that the petitioner pays maintenance at the adjudged rate for the past three years and continues to pay Rs. 400 p.m. it future. The injunctive order was availed of by the petitioner for 3 years without complying with the inbuilt condition, which was recalled on 11‑12‑1988.

2. Respondent No. 3, though has been served through registered P.C. but has failed to put in appearance, thus is proceeded ex parte.

3. Resume of the facts as transpired from the record are that responds‑e No. 3 moved an application prior to 5‑10‑1984 (exact date not traceable) before respondent No. 1 claiming maintenance for the past five years as well as for future, in pursuance to which petitioner was summoned for the afore‑referred date. In obedience thereto, he did put in appearance and the Arbitration Council was duly constituted, inter alia, comprising representatives of both the parties However, later on, petitioner opted not to participate in the proceedings, rather played a sharp practice, viz. instituted a suit for restitution of conjugal rights on 8‑11‑1984 before Judge Family Court Shakargarh, and manoeuvred to procure an ex parte decree on 18‑12‑1984 by furnishing different address of respondent No.

3. Even thereafter, he alongwith his representative for quite some time participated in the proceedings and prolonged the matter on the pretext of reconciliation; but later on stopped putting in appearance, thus, eventually, was proceeded against ex parte on 29‑1‑1985, and on the basis of the evidence of respondent No.:) corroborated by that of her father she was awarded maintenance vide order dated 2‑2‑1985, at the rate of Rs. 400 p.m. for the past five years as well as for the future, which was impugned in revision on 19-5‑1985, but the same was dismissed by the Controlling Authority vide the impugned order dated 3‑9‑1985, inter alia, on the ground that the petition was barred by time; hence the present petition.

3. During the course of arguments, it was frankly admitted by the learned counsel for the petitioner that he did join the proceedings before respondent No. 1, and duly nominated his representative on the Arbitration Council, but, subsequently, opted not to appear. It was also admitted that at the time of filing of the maintenance application, respondent No. 3 was residing within the territorial jurisdiction of respondent No. 1.

4. It is considered that the order of respondent No. 1 awarding maintenance, was passed at the back of the‑petitioner, thus was condemned unheard; that the arbitration council did not have the territorial jurisdiction in the matter, thus the order was void ab initio; that respondent No. 3 was not entitled to maintenance in view of the decree for restitution of conjugal rights, and. lastly, by placing reliance on 1985 C L C 1184, it is submitted that maintenance could not be awarded for a period beyond three years.

5. I am afraid, the first two contentions are devoid of any merit in view of the frank admission having been made by the learned counsel for the petitioner at the Bar referred to in para 3 supra. Regarding the third contention, I am impelled to observe that the petitioner instituted the suit for restitution of conjugal rights for extraneous considerations, with a view to circumventing the rigours of the maintenance proceedings, and procured the ex parte decree in a hurried fashion by furnishing different address of the respondent, which militates against him. Even otherwise, it will not strip off the respondent of her right to claim past maintenance. Admittedly, the revision petition was filed before the Controlling Authority much beyond the statutory period of 30 days prescribed by rule 22 of the West Pakistan Family Courts Rules, 1965, and on the peculiar facts of the case, the explanation offered for this delay as to lack of knowledge of the proceedings, is highly incredible, thus the revision petition was rightly rejected by respondent No. 2 being barred by time.

6. Nevertheless there is much substance in the last contention of the learned counsel for the petitioner that past maintenance could only be awarded for three years and not beyond; and in this behalf, I am in respectful agreement with the precedent case, Abdul Latif v. Mst. Bakht Bhari and 2 others 1985 C L C1 1184; consequently, on this limited count, the impugned order is devoid of legal sanction; however, this being an old maintenance matter, therefore, in the interest of justice with a 'view to minimising the agony of the parties, instead of remanding the case, I have deemed it appropriate to modify the impugned order to the extent of period of past maintenance by reducing the same from five years to three years. In view of the foregoing, this petition is partially allowed in the above terms; and parties are left to bear their own costs. H.B.T./C‑31/L???????????????????????????????????????????????????????????????????????? Petition partly allowed.