2015 PLP 2467 (YLR)

MUHAMMAD FARRUKH IRFAN KHAN, J.

The petitioner is aggrieved against the order dated 20-3-2014 whereby learned Additional District Judge, Sheikhupura declined to restore his appeal dismissed for non-prosecution vide order dated 20-3-2013 against ex-parte judgment and decree dated 18-5-2012 having been passed in favour of respondents Nos. 3 and 4.

2. Briefly the facts of the case are that respondent No.3 filed a suit for dissolution of Marriage and for recovery of maintenance allowance of her own as well as of her minor daughter (respondent No.4) on the grounds mentioned in the plaint. The petitioner did not appear in the Court despite applying all modes of service including publication in the newspaper. Ultimately, he was proceeded against ex parte on 3-1-2012 and ex-parte evidence of the respondent/ plaintiff was recorded. However, at a later stage, one Mr. Tariq Mahmood Kamboh, Advocate, on 23-2-2012, entered appearance on behalf of the petitioner and filed an application for setting aside the ex parte proceedings, which was accepted vide order dated 8-3-2012 by the learned trial Court and an absolute last opportunity was granted to the petitioner to file his written statement on the next date i.e. 26-3-2012. The petitioner did not file his written statement, rather changed his counsel on the next date. Thereafter, three more adjournments were granted but the petitioner failed to file his written statement. On 9-5-2012, when neither anyone on behalf of the petitioner was present nor the written statement was filed, the learned trial Court proceeded to strike off right of the petitioner to file written statement. Ultimately, suit of the respondent/plaintiff was decreed ex parte vide judgment dated 18-5-2012. The petitioner filed an appeal against the aforesaid ex parte judgment and decree but later on, again disappeared. The appeal was adjourned five times one after the other but none appeared on behalf of the petitioner. The learned Lower Appellate Court, therefore, dismissed his appeal for non-prosecution vide order dated 20-3-2013. The petitioner, thereafter, filed an application for restoration of his appeal but the same was dismissed being time barred vide the impugned order dated 20-3-2014. Hence, this writ petition.

3. Learned counsel for the petitioner contends that the impugned order is illegal and without jurisdiction; that the petitioner has been condemned unheard and ex parte decree has been passed against him which otherwise is based on misreading and non-reading of the evidence on record; that the petitioner was posted at Waziristan and it was not possible for him to appear on each and every date of hearing. Further submits that appeal of the petitioner, which was dismissed in default, should be decided on merit and that the provisions of Article 182 of the Limitation Act, 1908 cannot be made applicable to the family cases.

4. Arguments heard. Record perused.

5. The above resume of the facts clearly reflects contumacious attitude and conduct of the petitioner throughout the proceedings of the case. He has been playing hide and seek with the Court just to avoid payment of maintenance to his minor daughter. A person having such a callous attitude towards his minor daughter does not deserve any equitable relief from this Court in exercise of -its extra-ordinary jurisdiction. Reliance is placed on the case of Muhammad Arif v. Uzma Afzal and others (2011 SCMR 374) where in it has been laid down as under:-- "There is no cavil to the proposition that the "conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim "he who seeks equity must do equity." Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law under which he is claiming entitlement."

6. After delving into the record, it is manifestly clear that petitioner has been making all efforts to frustrate progress of the claim filed by the respondent. He intentionally avoided appearance before the Court and only appeared when a proclamation was issued against him in the newspaper and thereafter, he again vanished. The learned trial Court was, therefore, justified in closing his right to file written statement and thereafter, passing ex parte decree of maintenance. The petitioner after filing appeal against the ex parte decree again showed his obduracy. He neither paid any maintenance to the minor child nor appeared before the learned Lower Appellate Court. Resultantly, his appeal was' dismissed in default. The petitioner, thereafter, filed application for restoration of the appeal which was dismissed being time barred by the learned Lower Appellate Court. The contention of the learned counsel that provisions of Article 182 of the Limitation Act, 1908 are not applicable in family matters has no force. She has not been able to show any law in support of her contention despite being given an opportunity to produce dictums of the Honible Supreme Court of Pakistan in relation to the issues she has raised in this writ petition. Rather she kept on insisting that as the petitioner is a soldier in the Pakistan Army, therefore, he should be given an opportunity to defend himself. No doubt, family matters are amenable to a special law but it does not mean so as to allow the petitioner to lodge and defend the cause at his own whims and caprice. This contention of the petitioner is, therefore, untenable.

7. Even on merits, minor is the legitimate daughter of the petitioner and he is duly bound to maintain her. A soldier of Pakistan Army is trained and expected to not only possess but also demonstrate high moral character and ethics. It is only when a soldier of our Army, is equipped with these attributes, is able to defend the country and its people in a befitting manner. However, when a person, who is serving as a soldier,. is unable to discharge his basic obligation of providing fora a meager amount required to sustain the life' of his own minor daughter, how can he be trusted to defend and protect the interest of the citizens of this nation. The rate of maintenance fixed by the learned Judge Family Court is neither exorbitant nor unreasonable in this age of inflation.

8. This Court does not find any merit in this writ petition which is accordingly, dismissed in limine with a cost of Rs.25,000 (rupees twenty five thousand only) to be paid by the petitioner to the decree-holder. A copy of this order be transmitted to the learned Executing Court concerned who shall also proceed to recover the cost from the petitioner within four weeks from the date hereof. Learned Executing Court will submit a compliance report to the Deputy Registrar (Judicial) of this Court. Now to come up as a "compliance case" on 15-9-2014. ARK/S-79/L Petition dismissed.