P L D 1989 Lahore 69 (PLP)

Muhammad Ashraf petitioner was married to Mst. Nasreen Begum on 13-2-1972. From this marriage, Arshad Mahmood a male child was born to them on 29-8-1975. Husband and wife appeared to have fallen out and the petitioner gave irreversible divorce to Mst. Nasreen Begum on 16-8-1980. Some time thereafter, petitioner contracted second marriage and has a daughter from this marriage. On 28-6-1982, Mst. Nasreen Begum for herself and on behalf of Arshad Mahmood sued the petitioner for maintenance. For herself, she claimed Rs.2,400 as maintenance covering her iddat period and in respect of the minor child claimed maintenance at the rate of Rs.500 per month for a period of three years preceding the date of institution of the case and future maintenance also at the same rate. Case was instituted in the Court of a Judge Family Court at Jhelum. On 21-3-1983, ex parte proceedings were taken against the petitioner and on same date maintenance claim was decreed against him at the rate and the amount claimed by the respondents. On 20-10-1983, petitioner applied for setting aside of the ex parte decree stating that he had not been served in the case and came to know of the ex parte decree when its execution was sued out. Respondents resisted the application. By order dated 7-11-1984, Family Court found that application for setting aside of the ex parte decree was barred by limitation as it was filed beyond thirty days prescribed by Rule 13 of Family Courts Rules 1965. Inquiry on facts, however, was not made. Petitioner preferred an appeal. It was heard by learned Additional District Judge, Jhelum who finding no merits therein dismissed the appeal on 5-6-1985. Learned Judge, on examination of the records concluded that "A perusal of the order-sheet maintained by the learned Family Judge, in the regular application clearly shows that the learned trial Court tried his best to get effected service on the appellant by issuing summons in his name and sent the summons to him through registered letter also. At last a proclamation in the Daily Nawa-e-Waqt, Rawalpindi, was got published against the appellant, but in spite of it none appeared in the lower Court on his behalf. Therefore, it cannot be said that the respondents played any fraud in obtaining ex parte decree against the appellant. The learned counsel for the appellant has not been able to show any fraud which the respondents committed in obtaining ex parte decree". Above portion extracted from the judgment of the appellate Court was considered sufficient to hold that service upon the petitioner was proper and adequate to post him with the knowledge of proceedings taken against him in the maintenance case. Maulvi Siraj-ul-Haq learned Advocate has raised two submissions. First, that rule 13 of Family Courts Rules 1965 was declared void in Mehrban Khan v. Mst. Fayyaz Begum and another PLD 1984 Lahore 2.02 and cannot be relied upon and second that without ex parte proof taken in support of claim suit could not be decreed. It is urged that section 17 of the Family Courts Act 1964 excludes application of Civil Procedure Code to the proceedings before the Family Court except to the extent indicated in the Act. Upon examination of the existing records and having regard to the law, interference is declined. West Pakistan Family Court Rules 1965 framed under section 26 of the West Pakistan Family Courts Act 1964 came in force on 2-11-1965. Rule 13 of the 1965 Rules is relevant. It reads:- "Ex parte decree of proceedings may, for sufficient cause shown, be set aside by the Court on application made to it within 30 days of the passing of the decree or decision". Terminus a quo for setting aside of the ex parte decree is 30 days from the date of the ex-parte decree or decision. Section 5 of Limitation Act 1908 was inapplicable. Period of 30 days provided in rule 13 was in accord with the object underlying the establishment of Family Courts for ex-peditious settlement and disposal of family disputes and matters connected therewith. By Act 1 of 1969--West Pakistan Family Courts (Amendment) Act, 1969 substantial amendments were made to the Family Courts Act 1964. Existing section 9 was altogether substituted by a new section. It also enacted a provision for setting aside of an ex parte decree. To the extent of relevance, it provides: In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within reasonable time of the passing thereof 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 of 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." While this amendment was made in the Act, Rule 13 of the Family Courts Rules was not touched and it remained intact. Thus, both provisions of law continued to co‑exist. Subsection (6) gave reasonable time whereas already existing Rule provided 30 days only for setting aside of the ex parte decree. In Mst. Kaneez Fatima v. Mumtaz Khan and 2 others‑‑1983 SCMR 569, Supreme Court observed that limitation for an application for setting aside of the ex parte decree under rule 13 of Family Court Rules, as 30 days, could be challenged as ultra vires of the test of reasonableness laid down in section 9 (6) of the Family Courts Act but did not decide the point. In Mehrban Khan v. Mst. Fayyaz Begum and another P L D 1984 Lah. 202, Muhammad Ilyas J. , took the view that rule 13 of Family Court Rules limiting a period of 30 days for setting aside of the ex parte decree is contrary to the rule of 'reasonable time' in section 9(6) of the West Pakistan Family Courts Act 1964 and thus was ultra vires of the principal legislation. It is well‑settled that in case of an existing conflict between the Act and the rules framed thereunder, former shall take precedence. As said) above, rule 13 gave 30 days for setting aside of the ex parte decree but in amended section to the Act, reasonable time was allowed for making an application for setting aside of the ex parte decree. In the Concise Oxford Dictionary, 'reasonable' has been defined as:‑ "in accordance with reason, not absurd; within the limits of reason, not greatly less or more than might be expected." In Webster's New Twentieth Century Dictionary, "reasonable" has been defined as:‑‑ amenable, conformable, or agreeable to reason; just; rational. not immoderate; not excessive; not unjust; tolerable; moderate; sensible; sane. Looked at thus, what is a "reasonable time" in a given case turns one facts and circumstances of each case and no hard and fast rule capable of application to all sets of circumstances can be formulated. A case can easily be visualized where a period even less than 30 days can be characterised a reasonable time, but, in a different set of circumstances, time exceeding 30 days may conform to the test of'. reasonableness. Each case has its own facts to present for application) of the test of reasonable time. To the extent that rule 13 prescribes the test of reasonable time to 30 days, it clearly goes beyond the provisions in section 9(6) of Family Courts Act, 1964 and cannot be sustained. Therefore, rule laid down in case of Mehrban Khan enunciates a correct statement of law and I respectfully agree with it. In regard to the second point, there can be no dispute that provisions in Order 9, rule 6(a) are inapplicable to the proceedings before a Family Court and the Family Court in accordance with the provisions of the Family Courts Act is bound to take some evidence before it decrees a clam against ex parte defendant Prom the decision dated 21‑3‑1983, it is clear that in ex parte proceedings, no evidence was recorded by the trial Court. As shown above, despite attempts to serve the defendant in accordance with ordinary modes of service by sending summons in ordinary forms and through registered cover, service could not be made and as a last resort, defendant was served through citation in the press. Copies of summons and the returns made thereon including those sent through registered covers were not made part of this Court's records to show that proper case was not made out for ordering substituted service. Therefore, it cannot be successfully urged that service upon the defendant was either insufficient or inadequate and he had no knowledge of the proceedings taken against him. It is admitted and is otherwise proved from the records in connected writ petition (W.P. 340 of 1987) that ever since the date of his birth, Arshad Mahmood was not paid a single penny by the petitioner. On 28‑6‑1982, when the maintenance case was instituted, Arshad Mahmood was a lad of seven years. Under Islamic law, a father is obliged to maintain his son until he has attained the age of puberty . The fact that son is in the custody of his mother during his infancy is not a valid ground for the father to withhold maintenance. It is not the case that Arshad Mahmood was in affluent circumstances and was capable of being maintained from his own,' resources. In failing to provide maintenance to his son, petitioner has failed to discharge his clear obligation In the litigation, the only sufferer was the minor child. There was no justification for the petitioner to make his son suffer because of some alleged dispute with his wife. In the suggested remand for a trial de novo except for prolonging the suffering and agony of the minor, no purpose shall be served. Minor has already suffered enough. Nothing should be done to add to his sufferings. Mst. Nasreen Begum is dead and left behind her surviving her real mother, father and Arshad Mahmood her minor son. There is no dispute that she was also entitled to maintenance for her iddat period. Defendant has no defence to make in respect of this claim. Having regard. to the ever‑rising prices of necessaries of life, rate of monthly maintenance does not seem to be excessive. Jurisdiction under Article 199 of the Constitution is essentially a discretionary jurisdiction and in its exercise, the Court shall surely aid the cause of justice rather than promote injustice and perpetuate it. Remand of the case shall be no justice. In view of above, it is not a fit case for causing interference with the impugned orders. Writ petition fails and is dismissed. As the respondents have not appeared, I make no order as to costs. A. A./M‑1000/L Petition dismissed.