2016 PLP 2851 (YLR)

MOHAMMAD AZAM KHAN, C.J.

The titled appeal by leave of the Court arises out of the judgment of the Shariat Court, dated 18th April, 2012, whereby appeal filed, by the appellant, herein, has been dismissed.

2. Necessary facts for disposal of the appeal are that the plaintiffs, respondents, herein, filed a suit for grant of maintenance charges at the rate of Rs.5000/- per head, per month, total amounting to Rs.25,000/- per month, in the Family Court, Rawalakot, on 7th August, 2010. The defendant, appellant herein, was proceeded ex parte. The ex parte evidence was recorded on 21st January, 2011. On the same day, an application for amendment in the plaint was moved by the plaintiffs to the effect that plaintiffs Nos.2 and 3 are entitled for maintenance charges at the rate of Rs.25,000/- per month and plaintiffs Nos.1, 4 and 5 are entitled for maintenance charges at the rate of Rs.10,000/- per month. The Family Court on 24th January, 2011, passed the ex parte decree and awarded the maintenance charges to plaintiffs Nos.2 and 3 at the rate of Rs.25,000/- per head per month and plaintiffs Nos.1, 4 and 5 at the rate of Rs.10,000/- per head per month, from December, 2009. The appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir on 1st March, 2011. The appeal was dismissed being time barred, hence this appeal by leave of the Court.

3. Raja Muhammad Hanif Khan, Advocate, counsel for the appellant, submitted that the judgment of the Shariat Court is against law and the record. The plaintiffs filed a suit for maintenance charges at the rate of Rs.5000/- per head, per month for all the plaintiffs total amounting to Rs.25,000/- per month. The appellant was proceeded ex parte. Ex parte evidence was recorded on 21st January, 2011 and on the same day, an application for amendment in the plaint was filed, which was allowed and on 24th January, 2011, the ex parte decree was passed in the light of the amended plaint. The learned counsel submitted that the ex parte order has been procured by furnishing incorrect address of the appellant, herein. The amendment application was filed by the plaintiffs with mala fide intention. The appellant was not in the knowledge of ex parte decree. As soon as, the appellant acquired the knowledge, he filed appeal in the Shariat Court. The appellant also filed an application for condonation of delay and the fact of delay was duly explained. An affidavit has also been filed in support of the application for condonation of the delay. The learned counsel argued that the proclamation was published in a local newspaper of Rawalakot which is not read throughout the Azad Jammu and Kashmir. He submitted that plaintiff No.1, has not shown the income of the husband, appellant, herein and a father cannot be ordered to pay the maintenance charges more than that of his income. He relied upon the cases reported as Muhammad Aslam v. Muhammad Usman and others (2004 CLC 473), Dr. Zafer Ahmed v. Mst. Shamsa and others (PLD 2002 Karachi 524) and Ghulam Rasool v. Additional District Judge Sahiwal and another (2006 YLR 549). The learned counsel forcefully argued that when an application for amendment of plaint is filed, it is duty of the Court to seek objections from the other party. After seeking objections and providing an opportunity of hearing, the application has to be decided. He submitted that the defendant, appellant herein, was not represented before the Court, therefore, it was enjoined upon the Court to issue a notice to the defendant while allowing the amendment in the plaint. Without issuing the notice to the defendant-appellant, the judgment is bad in law. The learned counsel further submitted that the proceedings conducted by the Family Court on 21st January, 2011 and thereafter, are illegal. A decree cannot be sustained on the basis of illegal proceedings. He referred to the cases reported as Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and others [1998 SCMR 2306], Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others [PLD 2010 SC 878] and Tauqeer Ahmed Qureshi v. Additional District Judge, Lahore and 2 others (PLD 2009 SC 760). The learned counsel lastly argued that the appellant is a law abiding citizen. He is ready to pay the maintenance charges to the plaintiffs at the rate demanded by the plaintiffs in the original plaint. In the case reported as Muhammad Aslam v. Muhammad Usman and others (2004 CLC 473), it was observed by the Lahore High Court that the salary of a serving person cannot be attached beyond half of the same. In the case reported as Dr. Zafer Ahmed v. Mst. Shamsa and others [PLD 2002 Karachi 524], it was observed that the defendant has a right at or before such hearing to appear and assign good cause for his previous non-appearance. In case, the defendant assigns good cause for his previous non-appearance, the Family Court has to hear him in answer to the suit if he had appeared on a day fixed for his appearance. In the case reported as Ghulam Rasool v. Additional District Judge Sahiwal and another [2006 YLR 549], while interpreting the provisions of sections 8 and 9 of West Pakistan Family Courts Act, (XXXV of 1964), the Lahore High Court observed that bare reading of the sections reveals that in the family matters service upon the defendant is necessary. The petitioner was not served upon and further the proclamation was published for the service of the petitioner in Daily "Jahan-Nama" Lahore which is neither widely published nor reached and read in Chak No.97/6-R, Tehsil and District Sahiwal where the petitioner resides. The ex parte proceedings were set aside. In the case reported as Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and others [1998 SCMR 2306], during pendency of a petition for leave to appeal cross objections were filed in the Supreme Court of Pakistan. The proposition for exercising the inherent powers of the Supreme Court, in the case, is discussed. In the case reported as Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others [PLD 2010 SC 878], the Supreme Court of Pakistan in a land acquisition's case observed that non-appealing affected litigants were also entitled to the same treatment which had been offered by the appellate Court to the similarly placed appealing parties. In the case reported as Tauqeer Ahmed Qureshi v. Additional District Judge, Lahore and 2 others [PLD 2009 SC 760], it was observed by the Supreme Court of Pakistan that unjust enrichment of the minors could not be permitted. Awarding of 20% annual increase in the maintenance allowance granted by the Family Court, without any basis or criteria and without giving any reason for awarding said increase, was arbitrary, illegal and whimsical.

4. While controverting the arguments, Sardar Karam Dad Khan, Advocate, counsel for the respondents, submitted that the ex parte proceedings have been conducted while keeping in view the provisions contained in sections 8 and 9 of the Family Courts Act. 1993. The appellant was aware of the decree. No sufficient cause has been shown for condonation of delay. The learned counsel submitted that it is discretion of the Court to grant maintenance charges. It was not necessary to issue fresh notice after allowing the amendment in the plaint. He relied upon the cases reported as Naveed Farid v. Raheela Razzaq 2012 CLC 1131, Muhammad Waseem alias Khushi Muhammad v. Ali Ahmed and others [2004 SCMR 858], Manzoor Ahmed v. Hamad Raza and others [2003 SCMR 1836] and Muhammad Arshad Khan v. Muhammad Kaleem Khan and 7 others [PLD 2007 SC (AJ&K) 114]. He submitted that the judgment of the Shariat Court is perfectly legal. The appeal may be dismissed. In the case reported as Naveed Farid v. Raheela Razzaq 2012 CLC 1131, this Court observed that under Rule 13 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, the limitation for filing application for setting aside an ex-parte decree is 30 days. The provisions of section 5 of the Limitation Act, 1908 are not applicable in the proceedings before the Family Court. In the case reported as Muhammad Waseem alias Khushi Muhammad v. Ali Ahmed and others [2004 SCMR 858], it was observed by the Supreme Court of Pakistan that the concurrent findings recorded by the Courts below that the father has sufficient means of income and was under obligation to make payment of maintenance to each of the children at the rate of Rs.2000 per month, cannot be disturbed by the Supreme Court. In the case reported as Manzoor Ahmed v. Hamad Raza and others [2003 SCMR 1836], the Supreme Court of Pakistan observed that Family Court decreed the suit at the rate of Rs.2,000/- per month per child. The father had produced salary slip regarding his financial status showing that his monthly income was Rs.22,072 per month, and after deduction, he was taking home Rs.16,000 per month. The decretal amount was neither exorbitant nor disproportionate to father's earning sources. In the case reported as Muhammad Arshad Khan v. Muhammad Kaleem Khan and 7 others PLD 2007 SC (AJ&K) 114, this Court observed that under Rule 13 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, the limitation for filing the application for setting aside the ex parte decree is 30 days from the date of decree and not from the date of knowledge.

5. We have heard the learned counsel for the parties and perused the record. The record transpires that the Family Court, Rawalakot passed the ex parte decree on 24th January, 2011. The appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir on 1st March, 2011, after a period of 40 days. In the memorandum of appeal, the appellant explained the delay that he is permanent resident of Pak-Gali and was residing in the house of his father at Rawalakot which was destroyed in the devastating earthquake of 2005. Thereafter, he is residing at district Muzaffarabad in connection with his employment and he is discharging his responsibilities in relation to his service at District Neelum. He claimed that the plaintiff-respondents resided with him at Muzaffarabad till they separated in the last week of December, 2009. He claimed that the plaintiff-respondents while filing the suit in the Family Court furnished his address that of Mirpur. He never resided at Mirpur. By furnishing incorrect address, the plaintiffs got ex parte order and decree from the Family Court. He was never informed about filing of suit for grant of maintenance charges. He alleged in para 5 of the memorandum of appeal that on 25th February, 2011 when he came back to Islamabad, he was intimated on telephone regarding the passing of ex-parte decree for payment of maintenance charges. He applied for the copies of the judgment and decree of the Family Court on 26th February, 2011. The copies were supplied to him on 28th February, 2011 and he filed appeal on 1st March, 2011, as such the appeal from the date of knowledge is within time. He also filed an application for condonation of the delay which is supported by an affidavit. The appellant also filed a certification dated 28th February 2011, issued by a company based at Rawalpindi, whereby it is certified that the appellant is a permanent employee of the company for the last 2 years. He is working with the organization of the company as Area Manager Muzaffarabad Zone from December, 2008. During the last 5 months, he was assigned to supervise the ongoing construction work in the area of District Neelum. After the completion of work assigned by the company in District Neelum, he came back on 25th February, 2011 and reported at Islamabad Office.

6. An appeal from the decision or decree of the Family Court lies in the Shariat Court of Azad Jammu and Kashmir under section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993. In the light of the provisions contained in section 22 of the Family Courts Act, 1993, the Government has power to make rules. The Azad Jammu and Kashmir Family Courts Procedure Rules were framed by the Government on 21st November, 1998, Rule 22 of the said Rules, deals with the appeal which is reproduced as under:-- "22. (1) An appeal under section 14 shall be preferred within thirty days of the passing of the decree or decision, excluding the time requisite for obtaining copies thereof. Provided that the appellate Court may, for sufficient cause, extend the said period. (2) The appeal shall be in writing, shall set out the grounds on which the appellant seeks to change the decree or decision, shall contain the names description and address of the parties and bear the signatures of the appellant or his counsel. (3) A certified copy of the decree and decision of the Court where a decree is passed, and a copy of the decision where only an order is passed shall be attached with the appeal. (4) Any order passed by the appellate Court shall, as soon as may be, communicated to the trial Court which shall modify or amend the decree or decision accordingly and shall also make necessary entries to that effect in the appropriate column of the register of decrees." A bare reading of the rule shows that in the light of the provisions of section 14 of the Family Courts Act, 1993, an appeal in the Shariat Court shall be preferred within a period of 30 days of passing of the decree or decision excluding the time requisite for obtaining the copies. A proviso has been attached to the rule that the appellate Court may for sufficient cause extend the period of limitation. The effect of proviso is that it carves out a special situation from the main provision. The main provision says that the appeal has to be filed within a period of 30 days from passing of the decree or decision. Of course, the time requisite for obtaining the copies has to be excluded but the proviso has vested the power in the Court that it may extend the time for sufficient cause. What is "sufficient cause". It varies from case to case. Generally, the sufficient cause is such a cause which is beyond the control of a party. The matter of sufficient cause came under consideration of this Court in a number of cases. While explaining the term "sufficient cause" it was observed by this Court in the case reported as Muhammad Sharif v. Muhammad Zaman and others [PLD 2015 SC (AJ&K)] as under:-- " The sufficient cause is such a cause, which is beyond the control of a party " In another case reported as Muhammad Kabir Khan v. Mst. Anees Begum [2005 SCR 23], it was observed by this Court as under:-- " Sufficient cause as is laid down by all the superior Courts of Sub-Continent is one which is beyond the control of a party..." Again in the case reported as Muhammad Habib Khan v. Nasiri Khatoon and 11 others [2006 SCR 22], it was observed by this Court as under:-- "The term 'sufficient cause' is such a cause which is beyond the control of a party, therefore, the Courts have not given any premium to a party which is found negligent, indifferent and careless." Similarly, in the case reported as Superintendent of Police v. Mallick Hussain Shah [2008 SCR 401], it was observed by this Court as under:-- "It is the fundamental duty of the party or his counsel, whose cause has been dismissed for default of appearance or against whom an ex parte proceeding has been ordered, to show sufficient cause as to why the cause was not prosecuted on the relevant date. Where the Court finds that the circumstances were beyond the control of a party or his counsel, then the same has always been considered to be a sufficient cause for the restoration of case or appeal as the case may be..." The plaintiff, respondent No.1, herein, also filed a counter affidavit in the Shariat Court stating therein that she had filed the suit against the appellant on 7th August, 2010. The appellant along with his elder brother Farooq Kiyani, approached the counsel for the plaintiffs and tried to negotiate for reduction in the demanded maintenance charges. The defendant-appellant also procured the copy of the plaint. He was aware of filing of the suit. She also alleged that the appellant resides with her brother and mother at Mirpur. He has got no other residence.

7. A perusal of plaint, reveals that the plaintiffs alleged that the marriage was solemnized between plaintiff No. 1 and the defendant, appellant, herein. Four children were born out of the wedlock. Plaintiff No.1, has not stated that where she resided with the defendant and wherefrom the separation took place. Even in the affidavit filed in the Shariat Court, she never claimed that she remained with the husband at Mirpur. She has only claimed in the affidavit that the appellant procured a copy of the plaint. She has not alleged in the affidavit that the defendant was in knowledge of the decree of the Family Court. Whereas the defendant, appellant herein, specifically alleged the date of knowledge i.e. 25th February, 2011. For the sake of arguments, if it is admitted that the appellant was in knowledge of the suit, he negotiated for payment of maintenance charges and also procured a copy of the plaint, then too it cannot be assumed that the defendant had the knowledge of the decree. In such circumstances, the version of the appellant that the decree came to his knowledge on 25th February, 2011, and thereafter, he filed the appeal on 1st March, 2011 appears to be plausible. The cause shown by the appellant for filing the appeal beyond the period of limitation has sufficiently been explained by the appellant, he is entitled for condonation of the delay. After condoning the delay the appeal in the Shariat Court was filed within the limitation, from the date of knowledge.

8. The ex parte proceedings were ordered by the Family Court. The plaintiffs-respondents produced ex parte evidence on 21st January, 2011. On the same day, the plaintiffs filed an application for amendment of the pleadings and demanded the maintenance charges to the tune of Rs.25,000 per month for respondents Nos.2 and 3 and Rs.10,000 per month for respondents Nos.1, 4 and

5. The Family Court allowed the application on the same day and without summoning the defendant, passed the ex parte decree after hearing the arguments on 24th January, 2011. It was forcefully argued by Raja Muhammad Hanif Khan, Advocate, counsel for the appellant that when the plaint is amended, a notice is mandatory to be issued to the defendant and it is mandatory to provide an opportunity for filing the written statement.

9. The Shariat Court has observed that under section 17 of the Family Courts Act, 1993, the Civil Procedure Code is not applicable in the proceedings before the Family Court, therefore, it was not necessary to seek the written statement.

10. The Courts are governed under law. There is no concept of arbitrariness in the law. The right of hearing is a constitutionally guaranteed fundamental right of every citizen. No order or decree can be passed against a person without providing an opportunity of hearing to him. Section 17 of the Family Courts Act, 1993, provides that the provisions of Qanun-e-Shahadat and Code of Civil Procedure shall not apply to the proceedings before any Family Court. The purpose of exclusion of Civil Procedure and Qanun-e-Shahadat is that the family matters be disposed of expeditiously and the cases shall not be prolonged unnecessarily. No specific procedure for proceedings before the Family Court has been laid down in the Family Courts Act and the provisions of Qanun-e-Shahadat and Civil Procedure Code are not applicable in the proceedings before the Family court but the guidance may be had from Civil Procedure Code in such like proceedings to meet the ends of justice. The matter came under consideration of this Court in the case reported as Fozia Javed Qureshi v. Zulfiqar Ali and another [2011 SCR 371], wherein it was observed as under:-- "Although Section 17 of the Act provides that the C.P.C. is not applicable in the proceedings before the Family Court, but the general principles of procedure are applicable." It was further observed in the case reported as Wajid Hussain v. Senior Civil Judge Mirpur, AJ&K and another 2012 MLD 1697 as under:- " Although the provisions of the Code of Civil Procedure are not applicable in the proceedings before the Family Court, but it may be stated that there always exists an implied and inherent power in every Court to pass a suitable order to meet the ends of justice and the requirements of principle of natural justice. A guideline may be sought from the general provisions of C.P.C." Again in the case reported as Naveed Farid v. Raheela Razzaq 2012 CLC 1131, it was observed in para 8 of the judgment as under:-- "

8. We have also considered the argument of the learned counsel for the appellant that the service was not properly effected upon the defendant-appellant as laid down in Order V, Rule 5 of C.P.C. It is correct that C.P.C. is not applicable in the proceedings before the Family court, but guidance can be taken from the general principles of C.P.C ." Thus, it was mandatory for the Family Court that after allowing the amendment application, a notice should have to be served upon the defendant and he should have been provided an opportunity to file the written statement, Without seeking written statement and issuance of notice to the defendant in the amended suit, the decree for maintenance charges claimed in the amended plaint cannot be passed and is not maintainable.

11. Raja Muhammad Hanif Khan, Advocate, counsel for the appellant in the open Court stated that the appellant is ready to pay the maintenance charges claimed in the original plaint. The financial position or income of the appellant is not such that he can pay Rs.80,000/- per month as maintenance charges.

12. We should have ourselves resolved the question of maintenance charges demanded in the amended plaint but, as we have drawn the conclusion that the decree cannot be passed without issuing notice, without providing an opportunity of hearing and without seeking written statement from the defendant, therefore, we are constrained to remand the case with heavy heart. Resultantly, the appeal is accepted. The case is remanded to the Family Court, Rawalakot, for decision after seeking written statement from the defendant and recording the evidence in accordance with law. The defendant may raise the question of his income/financial position in the Family Court. The parties are litigating in the Family Court since August, 2010 therefore, we direct the Family Court Rawalakot to decide the matter within a period of two months from the receipt of record from this Court. The parties are directed to appear before the Family Court Rawalakot on 4-12-2015. ZC/8/SC(AJ&K) Case remanded.