P L D 199(1 Lahore 263 (PLP)

3. Respondent No. 3 thereafter filed an execution application in which, the executing Court initiated proceedings. The details of these proceedings are given in the impugned judgment of the learned District Judge and need not be repeated here.

4. The petitioner on 11‑4‑1987 filed an application for recalling the ex parte decree passed against him. This application was resisted by respondent No. 3.

5. The learned trial Court after framing issues on the pleadings of the parties conducted the trial and ultimately by its order dated 13‑4‑1989 accepted the application and recalled the ex parte decree.

6. Respondent No. 3 felt aggrieved of the aforementioned order of the learned trial Court and preferred an appeal before the learned District Judge who by his judgment dated 1‑10‑1989 accepted the appeal, reversed the order of the Trial Court and restored the ex parte decree.

7. The petitioner is dissatisfied with the aforementioned judgment dated 1‑10‑1989 passed by the learned District Judge Attock in the appeal before him and has come up to this Court against the same in the present constitutional petition.

8. The learned counsel for the petitioner raised the following two contentions only:‑‑ (i) that the finding of the learned lower appellate Court that the application of the petitioner was barred by time as it could be filed within one month by virtue of the rule which prescribes the limitation for such an application is erroneous in law in that the said rule has been held to be ultra vires of the Act itself vide Mehrban Khan v. Mst. Fayyaz Begum and another reported as PLD 1984 Lah. 202; and (ii) that the law leans in favour of adjudication of disputes on merits and not by disposing them of on technicalities.

9. On the other hand, the learned counsel for the contesting respondent contended that the refusal to receive summons in the main suit had been duly established by the evidence on record and therefore, the petitioner had no case to seek cancellation of the ex parte decree passed against him lawfully. It was urged by the learned counsel for respondent No. 3 that equity also leans in favour of respondent No. 3 as it is apparent from the proceedings on record that the petitioner had been using dilatory tactics for keeping the decree in abeyance so as to deprive the said respondent of her legitimate rights.

10. Having given consideration to the controversy, I am of the view that the contentions raised on behalf of the petitioner have no force. The learned District Judge, in his judgment, has in minute details, gone into, all the circumstances leading to the passing of the ex parte decree and even of happenings thereafter. It has been correctly pointed out in the said judgment that the petitioner had twice refused to receive summons once per report of the postman and second time per report of the process‑server. It may be observed that the refusal by the petitioner to receive summons issued for 31‑5‑1986 on which date ex parte decree was passed against him stands abundantly established by the report on summons Ex. R/2 proved by the process‑server Muhammad Hayat whose testimony could not in any manner be discredited through cross‑examination. Not only that this witness in cross‑examination has further stated that he again went to the petitioner on 4‑10‑1986 and informed him abut the proceedings and yet the application was filed by him after more than six months i.e. on 11‑4‑1987. Coupled with the above position the testimony of other witness of the respondent and her own statement also establish that the petitioner had knowledge about the proceedings all along. Needless to mention here that the evidence of the petitioner in this A regard has been rightly rejected by the learned District Judge on the ground that it does not inspire confidence especially when the plea of the petitioner that he was serving at Multan during those days could not be established by him and he even failed to name his employer at Multan.

11. The above discussion legitimately leads to the conclusion that the application filed by the petitioner for annulment of the ex parte decree against him was not only not filed within reasonable time but had definitely been instituted very belatedly and without explaining the reasons of such belated filing. Even if Rule 13 of the West Pakistan Family Courts Rules, 1965 be held to be not applicable to such an application, the same would be hit by the principle of laches and will also be in disregard of the basic provision of the Act viz. section 9(6) of the West Pakistan Family Courts Act, 1964 which provides that the application could be filed within a reasonable time to be adjudged by the Family Court keeping in view the facts and circumstances of each case. The learned District Judge had through his detailed judgment come to the conclusion that the application had not been filed within reasonable time. This finding is not only valid and unexceptionable on merits but is also not such which could be questioned in the constitutional jurisdiction of this Court.

12. As regards the second contention of the learned counsel for the petitioner, I suffice by observing that though the law should lean in favour of adjudication of causes on merits but then this principle cannot be allowed to be g exploited by litigants by keeping the proceedings in abeyance through hide and seek reversal thereof and further prolong the proceedings. The principle aforementioned that the court should lean in favour of adjudication of causes on merits to my mind appears to be available for invocation only when the person relying on it himself comes to the court with coean hands and equitable consideration also lie in his facour. In the case in hand, the details given above do show that no equitable considerations are shown to be existing in favor of the petitioner and this being the established principle also that constitutional jurisdiction is not to be exercised in a manner which may perpetuate the miseries of one party on account or exploitation of technicalities by the other party, the petitioner has no case for being entertained in the constitutional jurisdiction? of this court. ? In view of the foregoing discussion, I find no merit in this petition which is accordingly dismissed with costs. M>B>A/K-246/L????????? petition dismissed