2012 PLP 990 (MLD)

SALMAN HAMID, J.

It seems that Family Suit No. 103 of 2006 was filed by the respondent No.1 against petitioner for recovery of dower, additional dower and dowery articles before the 1st Civil and Family Judge, Karachi Central in which ex parte judgment and decree dated 13-7-2006 were passed and thereafter execution proceedings were initiated by the respondent No.3 to enforce such ex parte judgment and decree and such decree was transferred to Bahawalpur for its enforcement. It was mentioned by the petitioner that upon transfer of decree he for the first time came to know of the same and immediately filed an Application for setting aside ex parte judgment and decree in 2008. Vide his order dated 14-10-2008 the learned 1st Civil and Family Judge, Karachi Central dismissed such application for setting aside the judgment and decree by holding that petitioner was served through courier service (TCS). Aggrieved by the order dated 14-10-2008 the petitioner preferred Civil Appeal No.56 of 2008 which was decided by District and Sessions Judge, Karachi Central upholding the order of the Family Court by coming to the conclusion that indeed petitioner was served through delivery of TCS. It was argued by the learned counsel for petitioner that TCS delivery reports which were relied upon by two courts below shows that consignee was not petitioner but the District Judge Bahawalpur and notice was received by such District Judge or by a person other than the petitioner from the office of District Judge Bahawalpur. It was also mentioned that even bailiff's report which is available on the record at page 111 of the file shows that the petitioner could not be served for want of complete address. Even the process that was sent through registered post to Bahawalpur says that same could not be served as address was incomplete. Learned counsel for respondent No.3 vehemently opposed petition and stated that petitioner was all along aware of the proceedings but did not come forward and wants to delay the matter. It was also mentioned that application that was filed by the petitioner was beyond the limitation period as per Rule 13 of the West Pakistan Family Rules, 1965 and that it was delayed by a year and six months. Learned counsel stated that about judgment and decree the petitioner was informed by the mother of respondent No.3 in August 2006 at his residence. I have looked into the record in detail and have noted that indeed the TCS delivery report upon which two courts below relied upon and came to the conclusion that service was effected on the petitioner was not such, inasmuch as the TCS report clearly shows that consignee was District Judge Bahawalpur and not the petitioner. Coming to the objection of learned counsel for respondent No.3 that the application for setting aside ex parte decree is beyond the limitation period as provided under Rule 13 of the West Pakistan Family Rules 1965, suffice to mention that period of limitation started to run upon acquiring knowledge of ex parte judgment and decree which according to the affidavit filed in support of the application was acquired a week before filing such application and petitioner rushed to the Court and made the application which application was therefore within the period of 30 days. In view of the above stated circumstances it appears that petitioner was not served at all. The judgment and decree passed by the trial court and upheld by the appellate court are set aside and the petitioner is entitled to contest the Family Suit, preferred by the respondent No.3. Only 30 days time is allowed to the petitioner to prefer written statement in such family suit. Family Court is directed to have the Family case summoned from the record and fix it on 12-1-2012 on which date the petitioner would appear and file written statement and no notice would be required to be issued by such court for service of the Family Suit, whereafter the Family Court shall proceed further into the Family Case. This petition is disposed of accordingly. K.M.Z./M-28/K Order accordingly.