2010 SCMR 1840 (PLP)

CH. IJAZ AHMED, J.

We intend to decide captioned appeals by one consolidated judgment having similar facts and both are depended upon each other.

2. Detailed facts have already been mentioned in the memo. of appeals/petitions and the impugned judgment. However, necessary facts out of which the aforesaid appeals/petitions arise are that respondent No.1/plaintiff solemnized marriage with appellant/defendant on 25-2-2001 in accordance with the injunctions of Islam. Respondent No.1 filed suit against appellant in the Court of Family Judge, Nowshera, for possession of half portion of House No. RH/211, Block No. VIII Serial No. 818, Hayatnagar, Muzaffargarh having estimated cost of about Rs.3,50,000, dowry articles and gifts valuing Rs. About 3,15,000 and golden ornaments weighing 30 tolas valuing about Rs. 2,00,000 on 17-11-2001. Respondent No.1 also filed suit against appellant/defendant for maintenance from July, 2001 till date of the decree of the suit at the rate of Rs. 1500 per month along with expenditure of medical check up and medicines etc. The Judge, Family Court, issued notice/summons on 17-11-2002 to the appellant/defendant through Registered A/D with copies of plaint for 11-12-2001. The notices were dispatched to the appellant/defendant as is evident from the Registered A/D which was returned with the remarks "ﻠﻴﻨﮯﺴﮯﺍﻨﻜﺎﺮﻯ". This fact is evident from the original record of Judge, Family' Court. On 11-12- 2001, Haji Wali Muhammad Khan, Advocate, appeared on behalf of the appellant/ defendant and filed memo. for appearance and secured adjournment for filing written statements on behalf of appellant/defendant. The cases were adjourned for 14-12-2001. The said Advocate appeared on 14-12-2001 on behalf of appellant/defendant, and again sought time' for filing wakalatnama/power of attorney on behalf of appellant/defendant. The cases were adjourned for 23-1-2002. The cases were fixed before Judge, Family Court on 23-1-2002 but neither the appellant/defendant had entered appearance nor anyone else had entered appearance on his behalf, therefore, ex parte orders were passed against him by the Judge, Family Court. The Judge, Family Court, after recording ex parte evidence passed ex parte decrees on 11-4-2002 in favour of respondent/plaintiff on the basis of the strength of ex parte evidence. Appellant/defendant filed applications on 14-4-2004 before the Judge, Family Court, setting aside ex parte decrees. The said applications were dismissed vide order dated 10-5-2004. The appellant/defendant being aggrieved filed appeals before the Additional District Judge, Nowshera, which were initially dismissed for non-prosecution vide order dated 29-6-2004. Thereafter, appeals were restored on the applications of the appellant/defendant. The learned Additional District Judge dismissed the appeals vide order dated 11-11-2004. Thereafter appellant/defendant being aggrieved filed Constitutional Petitions Nos. 44 and 45 of 2005 in the Peshawar High Court, Peshawar, which were dismissed vide impugned judgment dated 19-1-2005. The appellant/defendant filed C.Ps. Nos. 229-P and 230-P of 2005 before this Court which were fixed on 10-5-2006 and the following order was passed:-- "The learned counsel for the petitioner submits that service of the petitioner was not effected in terms of section 8 of the West Pakistan Family Courts Act, 1964, therefore, the application of the petitioner for setting aside the ex parte decree was not time barred but this fact was not considered by the' courts below in its true perspective. We may observe that rule 13 of the West Pakistan Family Court Rules, 1965 framed under the West Pakistan Family Courts Act, 1964, which has been the basis to dismiss the application of the petitioner as barred by time, has already been declared as ultra vires of section 9 of the said Act by this Court in Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another - (1988 SCMR 747). In this view of the matter, let in the first instance, notice be issued to the respondents for a date after two weeks...." The cases were fixed before the Court on 2-6-2006 and leave was granted in the following terms:-- "Leave is granted to consider, inter alia, the contentions noted in the order dated 10-5-2006 of this Court."

3. Hence the present appeals.

4. The learned counsel for the appellant submits as under:-- (i) The Judge, Family Court, had no jurisdiction whatsoever to take cognizance of the matter as the nikkah was solemnized between the appellant and respondent No.1 in Multan. (ii) Respondent No.1 had filed suits before Judge, Family Court, Nowshera, as her brother Asghar Hussain Shah Bukhari, who is serving in Pak Army, is posted at Nowshera. (iii) Respondent No.1 had secured ex parte decree by playing fraud with the Court by mentioning wrong address of the appellant/defendant as respondent No.1 has mentioned the address of the appellant/defendant i.e. resident of Mohallah Hayat Nagar, Tehsil and District Muzaffargarh whereas the appellant/defendant is permanent resident of Liayyah. This fact was known to her. (iv) The Service of the appellant/defendant was not effected. Appellant/defendant had not engaged Wali Muhammad Khan, Advocate, who appeared before the Court without any power of attorney and without his instructions and this fact was also not considered by the courts below in its true prospective. (v) The appellant/defendant has been condemned unheard throughout the proceedings. All the courts have acted on presumptions and surmiseds qua the appearance of said Haji Wali Muhammad Khan, Advocate as well as qua service of the appellant/defendant. (vi) The first appellate court had also erred in law to dismiss the appeal of the appellant on technical ground in violation of the law laid down by this Court. (vii) All the courts below had decided the case against the appellant/defendant in violation of mandatory provisions of sections 6 to 9 of West Pakistan Family Courts Act, 1964.

5. The learned counsel for the respondent has supported the impugned judgment. The address of the appellant in column No.10 in nikkah nama is exactly the same which was mentioned by respondent No.1 in her suits. Appellant/defendant has also mentioned the same address in his Constitution Petitions before the High Court and Civil Petitions/Appeals before this Court. Appellant/defendant was also served with notice/summons along with copy of plaint through registered A/D and the same was returned with the remarks that the appellant/ defendant refused to accept the same. The learned counsel for the appellant has failed to point out any infirmity or illegality in the impugned judgment.

6. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is better and appropriate to reproduce the operative parts of the applications filed by the appellant/defendant for setting aside the decree before the Judge, Family Court and relevant facts in chronological order to resolve the controversy between the parties:-- (a) Respondent No.1 filed two suits. First for possession of house, dowry and gift articles and golden ornaments and the second for maintenance etc. (b) Judge, Family Court, sent notices/summons to the appellant/ defendant on 17-11-2001 along with copies of plaint through registered A/D for 11-12-2001. (c) Registered A/Ds received back with the following remarks:-- ﻠﻴﻨﮯﺴﮯﺍﻨﻜﺎﺮﻯ" (d) On 11-12-2001 Haji Wali Muhammad Khan, Advocate, entered appearance on behalf of appellant/defendant and got adjournment for filing written statement. The case was adjourned for 14-12-2001. (e) The said Advocate again appeared and sought adjournment for filing proper wakalatnama. The case was adjourned for 23-1-2002. (f) On 23-1-2002 neither the said Advocate had entered appearance nor anybody else appeared on behalf of the appellant/defendant. Ex parte order was passed against appellant/defendant. (g) The Judge, Family Court, recorded the ex parte evidence of the respondent/plaintiff. (h) The Judge, Family Court, passed ex parte decree on 11-4-2002 in favour of respondent No.1/plaintiff. (i) Appellant/defendant filed application for setting aside ex parte decree mainly on the following grounds which are reproduced hereunder:-- (j) The said applications were dismissed by the Judge, Family Court, vide orders dated 10-5-2004. (k) The appellant/defendant filed appeals before the learned Additional District Judge who dismissed the same vide orders dated 11-11-2004. (l) The appellant/defendant filed Constitution Petitions Nos. 44 and 45 of 2005 which were dismissed by the High Court vide impugned judgment dated 19-1-2005.

7. It is pertinent to mention here that Family Court had dismissed the applications for setting aside ex parte decree on merits as well being time-barred as is evident from the orders dated 10-5-2004. Similarly first appellate court had dismissed the appeals vide orders dated 11-11-2004 on merits. The concurrent conclusions arrived by the courts below were upheld by the learned High Court vide impugned judgments. It is also admitted fact that provisions of Evidence Act and Code of Civil Procedure are not applicable qua the proceedings before the Judge, Family Court, in terms of section 17 of West Pakistan Family Courts Act, 1964, therefore, under West Pakistan Family Courts Act, 1964, the Family Court has to regulate its own proceedings in accordance with the provisions of this Act and in doing so it has to proceed on the premises that every procedure is permissible unless clear prohibition is found in law meaning thereby that the Family Court can exercise its own powers to prevent the course of justice being deflected from the path. Keeping in view the circumstances of the case in hand the learned Judge, Family Court, had rightly come to the conclusion that service of the appellant/defendant was effected in view of the remarks on the registered A/D which was sent by the Family Court to the appellant/defendant. The finding is based on logic. It is also in consonance with Order V, Rule 17 of C.P.C. As mentioned above C.P.C. is not applicable but the Judge, Family Court, is not debarred to follow the principle of C.P.C. coupled with the fact that Haji Wali Muhammad Khan, Advocate, had appeared before the Court twice who could not appear unless and until he had received instructions on behalf of appellant/defendant either directly or through his agent which is also in consonance with Order III, Rule 4(5), C.P.C. There is, no conflict between Order III, Rule 4(5), C.P.C. and provisions of West Pakistan Family Courts Act, 1964. The purpose and object to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith as is evident from the preamble of the said Act. It is settled principle of law that Act be read as a whole then it is crystal clear that what the Family Courts Act has done is that it has changed the forum, changed the method of trial and empowered the court to grant better remedies. See Ghulam Murtaza's case (1999 CLC 81). The contention of the learned counsel for the appellant that Judge, Family Court at Nowshera had no territorial jurisdiction is not valid attack in view of proviso of Rule 6 West Pakistan Family Courts Rules, 1965 wherein it is specifically provided that the Court within the local limits of which wife ordinarily resides shall also have jurisdiction. The said rule had been interpreted in various pronouncements by the superior courts and laid down a law that the Family Court within the local limits of which the wife ordinarily resides has jurisdiction to take cognizance of the matter See: (i) Mahboob ahmad's case PLD 1976 Kar. 978 (ii) Bibi Anwar Khatoon's case PLD 1988 Kar. 602 (iii) Muhammad Iqbal's case PLD 2005 SC 22 Apart from the concurrent findings of all the courts below the appellant could not advance any reason to dislodge the presumption attached to the document i.e. nikahnama as being public document and the execution of which was verified by Nikah Registrar who is public officer and even a certificate may be produced in proof of its content and in the absence of any rebuttal the same holds the ground. See Mst. Zubaida Bibi's case (1994 SCMR 1978). As mentioned in the narration of facts the address of the appellant/defendant is mentioned by the respondent/plaintiff in her plaints which is consonance qua the address of the appellant/defendant mentioned in Column No.10 of nikahnama. The same address was also mentioned by the appellant himself before High Court as well as before this Court. Even otherwise respondent No.1 along with her son filed a suit against appellant/defendant before the Judge, Family Court, Multan, with the same address i.e. Mohallah Hayat Nagar, Tehsil and District Muzaffargarh. The service of the appellant/defendant had been effected in the said case on the same address, therefore, 'remarks on the registered A/D with regard to refusal of the appellant/defendant clearly showed that appellant was not misled in view of the address mentioned by respondent/plaintiff in her plaints, therefore, trial court was justified to pass ex parte decree against the appellant/defendant. See Mst. Ismat Khanum Toor's case (1978 SCMR 335). It is an admitted fact that twice the said Advocate appeared before the Judge, Family Court, and secured adjournment coupled with the fact that the appellant/defendant had not raised objection to jurisdiction in his application filed by him for setting aside ex pare decree as is evident from the contents of the application which have reproduced herein above. It is settled principle of law that parties are bound by their pleadings as law laid down by this Court in Murad Begum's case (PLD 1974 SC 322). This Court generally does not allow any party to raise fresh points or pleas which were not raised before the courts below. There are various pronouncements of this Court. See: (a) Ashfaqur Rehman Khan 's case (PLD 1971 SC 766); (b) John E. Brownlee 's case (AIR 1940 PC 219); (c) Sardar Muhammad Ayub's case (1969 SCMR 96(2); and (d) Ghulam Muhammad's case (1980 SCMR 933). It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Trustees of the Port of Karachi's case (1994 SCMR 2213) and Gulzar Khan's case (1982 SCMR 843). The facts of the case, i.e. Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another (1988 SCMR 747) relied upon by the learned counsel for the appellant, are not relevant to decide the controversy in the case in hand in view of its own facts where Major Matloob is in the service of Pakistan Army. Notice had been pasted on the outer door of residential house in which his family members resided at Karachi who had relied on section 37 of the Soldiers (Litigation) Act, 1925 and had contended that as he was a serving soldier, under special conditions, the ex parte decree was liable to be set aside under section 10 of the said Act. The said case was decided only on ground of limitation where the case in hand had decided on merits as mentioned hereinabove. It is also settled principle of law that constitutional petition is not maintainable qua finding of facts recorded by the courts below as law laid down by this Court in Khuda Bukhsh's case (1974 SCMR 279), Muhammad Sharif's case (PLD 1981 SC 246) and Sultan's case (PLD 1981 SC 522). It is settled principle of law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. In view of the conduct of the appellant/defendant we are not inclined to exercise our discretion in favour of the appellant/defendant as law laid down by this Court in various pronouncements. See:-- (a) Wali Muhammad's case (PLD 1974 SC 106) (b) Nawab Syed Raunaq Ali's case (PLD 1973 SC 236) (c) Rana Muhammad Arshad's case (1998 SCMR 1462) and (d) G.M. Malik's case (1990 CLC 1783)

8. In view of what has been discussed above we do not find any merit in these appeals and the same are dismissed with no order as to costs. M.H./A-78/SC Appeal dismissed.