P L D 1984 Lahore 202 (PLP)

The facts giving rise to this writ petition are that respondent No. 1 Mst. Fayyaz Begum, hereinafter referred to as the respondent, filed a suit for maintenance, against the petitioner, Mebrban Khan. In the said suit, substituted service was effected on the petitioner as he was reported to be living abroad. He did not enter appearance despite service as aforesaid and, therefore, the Family Court, which was seized of the suit, ordered that he shall be proceeded against ex parts. The learned Family Court then recorded the respondent's evidence and decreed her suit on 9th October, 1980. On 22nd December, 1980, the petitioner made an application for setting aside the ex parts decree. That application was dismissed on 20th April, 1981 for the reason that it was not filed by a duly authorised person. The petitioner then submitted two more applications, for the purpose, one on 28th May, 1981 and the other on 5th January, 1982, out of which the first was dismissed on 3rd December, 1981 as having been withdrawn for the reason that it was not made by a duly authorised person, and the second was dismissed on 16th January, 1982 on the ground of limitation. The petitioner assailed the Family Court's order dated the 16th January, 1982, by means of a revision petition but the same was dismissed by an Addi tional District Judge by his order, dated the 8th February, 1982. He has, therefore, invoked the Constitutional jurisdiction of this Court.

2. The learned Family Court relied on rule 13 of the West Pakistan Family Courts Rules, 1965, for taking the view that the application, dated the 5th January, 1982, for setting aisde the ex parts decree was barred by time as it was submitted after 30 days of the passing thereof. Accord ing to that rule, such an application is required to be made within 30 days of the granting of the ex parts decree. It has, however, been laid down in subsection (6) of section 9 of the West Pakistan Family Courts Act, 1964,1 that application for setting aside an ex parte decree can be made within reasonable time of the passing thereof. What is reasonable time is to be: adjudged by the Family Court keeping in view the facts and circumstances of each case. By restricting the period of limitation to 30 days the rule making authority has precluded the Family Court from determining the reasonableness of the time taken by a defendant in making application for setting aside an ex parse decree. In this view of the matter, rule 13 of the said Rules; which is subordinate legislation, is ultra vires of the prin cipal legislation, namely, subsection (6) of section 9 of the said Act. I may mention here that in Mst. Kaneez Fatima v. Mumtaz Khan and 2 others (1983 S C M R 569) it was observed by the Supreme Court that rule 13 "could be chal lenged as ultra vises". That aspect of the matter was, however, not examined by the Supreme Court because in view of the facts of the case before the Supreme Court, it was not necessary to do so. It is too well‑known that if there is any conflict between the principal legislation and the subordinate 6 legislation, it is the former which is to prevail. The question of limitation in respect of the petitioner's application for setting aside the ex parte decree was, therefore, to be decided in accordance with the provisions of sub section (6) of section 9 and not on the basis of rule

13. This was, however, not done by the learned Family Court or the learned Additional District Judge while making the orders under review. These orders being in‑ disregard of the statutory provisions contained in subsection (6) of section 9, therefore, call for interference by this Court.

3. In result, I accept this petition, set aside order, dated the 16th January, 1982, passed by the learned Family Court and order, dated the 8th February, 1982, made by the learned Additional District Judge, and direct that the Family Court shall redecide the petitioner's application, dated the 5th January, 1982, for setting aside the ex pane decree, within two months. With a view to obviating the necessity of any order of remand, the learned Family Court shall not only decide the question of limitation afresh but shall also adjudicate upon the merits of the application. Needless to say that while redeciding the question of limitation the learned Family Court shall determine, keeping in view the facts and circumstances of the instant case, whether the application was made within reasonable time as contemplated by subsection (6) of section

9. There shall be no order as to costs.

4. The petitioner shall appear before the learned Family Court on 25th February, 1984. M.Z.M. Petition accepted.