1989 PLP 3825 (MLD)

Meharban Khan v. Fayyaz Begum P L D 1984 Lah. 202 ref. Mian Irshad Ali Qureshi for Petitioner. Karam Hussain Jawa for Respondents. Date of hearing: 31st January, 1989. Through this constitutional petition, the petitioner has challenged the orders dated 18‑5‑1985 and 13‑1‑1986 passed by the Judge, Family Court, Lodhran and Additional District Judge, Multan, respectively.

2. The brief facts of the case are that the petitioner filed a suit for jactitation of marriage against respondent No. 1 on 12‑10‑1976 before the Judge, Family Court, Lodhran. Respondent No. 1 appeared in the Court on 12‑11‑1976 and the next date of hearing was fixed in his presence. On the next date of hearing, respondent No. 1 absented himself and an ex parte decree was passed in favour of the petitioner on 18‑11‑1976. Thereafter, the petitioner is said to have married one Muhammad Afzal in the year, 1981. It is stated that she has given birth to a few children out of the said wed‑lock. The factual position was not controverted by respondent No.1 by filing a written statement. As no written statement has been filed, therefore, the factual averments contained in the writ petition and supported by an affidavit would be deemed to be true.

3. Respondent No.1 also filed a suit for restitution of conjugal rights in the Family Court, which was dismissed for non‑prosecution on 20‑6‑1981. 'The application for its restoration was also dismissed on 23‑9‑1981. Thereafter he filed another suit in the beginning of the year, 1982, in which Mst. Nooran Mai, the present petitioner entered appearance and filed her written statement in the Court on 17‑2‑1982. She stated therein that her suit for jactitation of marriage had already been decreed on 18‑11‑1976 and that she had contracted another marriage. Muhammad Shafi, respondent No. 1 Filed an application on 17‑3‑1982 for setting aside the ex parte decree for jactitation of marriage. The said application was opposed by the petitioner but after framing the necessary issues and recording the evidence, the Family Court accepted the application and set aside the ex parte decree vide order dated 18‑5‑1985. The petitioner challenged the said order by way of an appeal, which was dismissed by the learned Additional District Judge, Multan, vide order dated 13‑1‑1986. Hence, this petition.

4. The learned counsel for the petitioner contends that the application for setting aside the ex parte decree was hopelessly barred by time .and no satisfactory explanation for the delay was given by respondent No.

1. He submits that under rule 13 of the West Pakistan Family Courts Rules, 1965, the said application ought to have been filed within a period of 30 days. Even after the date on which respondent No. 1 claims to have learnt about the ex parte decree (17‑2‑1982), the application though drafted on 23‑2‑1982 was actually presented in the Court on 17th of March, 1982. Hence, according to the learned counsel, respondent No. 1 was guilty of delay and his application merited dismissal on this score alone. On the other hand, the learned counsel for respondent No. 1 contends that the limitation was governed by the provisions of subsection (6) of section 9 of the West Pakistan Family Courts Act and the rule which prescribed limitation of 30 days was ultra vires the provisions of the parent Act, He has placed reliance on "Meharban Khan v. Fayyaz Begum" (P L D 1984 Lahore 202). There is substance in the submissions made by the learned counsel for respondent No.

1. It is open to a person to file an application under subsection (6) of section 9 of the West Pakistan Family Courts Act for setting aside an ex parte decree within a reasonable time. Of course, he has to show sufficient cause within the meaning of the law. Rule 13 of the West Pakistan Family Courts Rules, 1965, which prescribes a period of limitation of 30 days is in conflict with the provisions of section 9 of the parent Act and has to yield to the said provisions of the Act. Consequently, the applicant for getting the ex parte decree set aside has to approach the Court within a reasonable time. What is reasonable time depends upon the peculiar facts of each case. In the present case, though the application filed by respondent No. 1 cannot be held to be barred by limitation, but the same suffers from laches. Respondent No. 1 had entered appearance in the suit for jactitation of marriage on 12‑11‑1976 and thereafter failed to appear on 18‑11‑1976 when the ex parte decree was passed against him. He was supposed to ascertain the fate of the case within a reasonable time. However, it appears that he acted with gross negligence and did not make any effort to find out as to what had finally happened in the suit for jactitation of marriage. He was not supposed to wait for more than 5 years for filing the application for setting aside the ex parte decree. As mentioned above, no written statement has been filed in the present case, therefore, the facts narrated in the petition have to be presumed to be correct. Hence, respondent No. 1's application was filed with unreasonable delay and did not merit acceptance. Even otherwise, now, there is no point in re opening the question of jactitation of marriage as the petitioner has since married, given birth to children and is happily living with her husband. In this view of the matter, this writ petition is accepted, the impugned orders dated 18‑5‑1985 and 13‑1‑1986 passed by the Judge, Family Court, Lodhran, and Additional District Judge, Multan, respectively are set aside. The parties are left to bear their own costs. H.B.T./N‑270/L Petition accepted.