2003 PLP 2206 (YLR)

The brief facts of the case as disclosed in the petition are that the petitioner's son was married with respondent No. 1 and petitioner's daughter married with brother of respondent No.

1. After some time of marriage relations between parties became strained therefore respondent No. 1 filed suit for dissolution of marriage whereas petitioner's son tiled suit for restitution of conjugal rights. The suit for restitution of conjugal rights was dismissed due to non appearance of the petitioner's son and suit for dissolution of marriage filed by respondent No.1 was decreed. After dissolution of marriage respondent No.1 filed suit for recovery of dowry articles against her ex- husband respondent No.2 Zubair Ahmed and petitioners. The suit was decreed by the trial Court and appeal was also dismissed by the Appellate Court by impugned judgment dated 31-10-2001. I have heard Mr. Ali Gohar Soomro learned counsel appearing on behalf of the petitioners and Mr. Raja Aftab Ahmed Khan learned counsel appearing on behalf of the respondent No.

1. The perusal of material placed on record shows that on 20-5-2000 when matter came up for recording further evidence of petitioners' side and petitioner No.2 Mst. Khushnudi Begum was present and respondent No. 1 was absent, the trial Court without recording evidence of petitioner No.2 closed the side of the petitioners for want of their counsel. The order in question is reproduced herein-below in extenso:-- "Case called.

None is present on behalf of plaintiff' while defendants Nos.2 and 3 are present but their counsel called absent. No any intimation/application has been received as yet. It is 1'O clock, which indicated defendant has no interest to proceed the matter. Therefore in view of above circumstances side of defendant to lead their evidence is hereby closed. (Sd.) 20-5-2000 (Mrs. Asma Memon) Xth Civil and Family Judge, Karachi Central." On the same date i.e. 20-5-2000 the petitioner moved application for recalling the order reproduced hereinabove and to examine the petitioner No.2. The trial Court dismissed the application on 22-5-2000 and decreed suit in favour of respondent on 29-5-2000. The petitioners urged this ground in paragraph 4 of the memo. of appeal. It is also evident from the impugned judgment that this aspect of matter was argued by the counsel appearing on behalf of the petitioners before the Appellate Court but no reasons whatsoever have been given/assigned by the Appellate Court for not accepting or rejecting this contention. The impugned judgment is silent on this aspect of matter. The non- examination of petitioner No.2 particularly when she was present, and deciding matter against her tantamounts to, condemning her without hearing. It is well settled that no man should be condemned unheard. The principle of audi alteram partem is enshrined in our judicial system. The apex Court has held time and again that the order affecting the right of a party cannot be passed without providing opportunity of hearing to that party. I am fortified to this view by the case of Ghulam Mustafa Jatoi v. Returning Officer and others reported in 1994 SCMR 1299 wherein it was held by the Honourable Supreme Court that the maxim audi alteram partem embodies one of the settled principles of law and such a principle will be read into the relevant law unless its application excluded by express words. Again in the case of Shaukat Ali v. The State reported in 1980 PCr.LJ 718 it was observed by the Honourable Supreme Court of Azad Jammu and Kashmir as under:-- "The Latin maxim, audi alteram partem which in fact, stems out from the principle of Islamic Law. This Court has already observed in Muhammad Shafique v. The State PLD 1977 SC (AJ&K) 1 that 'thus' from what has been said therefore, it would appear that this rule of natural justice stems from Islamic Jurisprudence. In a Muslim Society it is to be complied with as a command like any other 'Quaranic Laws'. We reiterate the above view and hold that an order passed by any Court without complying with this principle is liable to cause miscarriage of justice." The upshot of the above discussion is that the impugned judgments passed by two Courts below are set aside and the prayer of the petitioners stands allowed. The trial Court is directed to examine petitioner No.2 and after affording proper and reasonable opportunity of hearing to both the parties decide the case afresh according to law. The petition stands disposed of alongwith listed application in terms stated hereinabove with no order as to costs. H.B.T./A-448/K Order accordingly.