1991 PLP 1408 (CLC)

Nemo for Respondent No‑

1. Muhammad Aslam Chatta for Respondent No.2‑ Date of hearing: 31st March, 1991. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a suit for dissolution of marriage riled by Mst. Qamarun Nisa respondent No.2 against the petitioner in which she sought the dissolution of her marriage on the grounds of cruelty, bad character of the respondent, Khula and disparity in ages. It was alleged that though the petitioner was 55 years old, respondent No.2 was aged only 24 years. The suit was contested by the respondent and after its trial was dismissed by the Family Court vide its judgment and decree dated 21st of September, 1988.

2. Aggrieved by this decision respondent No.2 riled an appeal which was dismissed by the Additional District Judge on 11th of January, 1989 in the absence of the said respondent and her counsel. However, on an application riled by her the appeal was re‑heard and accepted by the same Additional District Judge on 21st of October, 1989. This judgment of the Additional District Judge has been assailed by the petitioner by riling this Constitutional petition.

3. Mr. M.D. Tahir, Advocate for the petitioner' contended that as the appeal had been dismissed on merits by the learned Additional District Judge himself on 11th January, 1989. It could not have been re‑heard or accepted by him subsequently and the impugned judgment and decree, dated 21st October, 1988 are illegal. The learned counsel has placed reliance upon various precedents including Fateh Muhammad v. Abdul Ghani and another (P L D 1981 SC 371 and Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan, Lahore and another (P L 9 1964 SC 829) to contend that there was no power of review vested in the, Additional District Judge while hearing appeals under the Punjab Family Courts Act, 1964. This contention of the learned counsel is without any force. It is clear from the record that the appeal was dismissed in the absence of and without hearing respondent No.2 or her counsel on 11th of January, 1989. She thereupon riled an application for restoration of the appeal and its re‑hearing on the ground that wrong date of hearing had been noted by her counsel. This application was initially contested by the petitioner but later on, on 30th of April, 1989 his learned counsel stated that lie had no objection if the appeal was re‑admitted subject to payment of costs. The Addl. District Judge thereupon directed the re‑admission of the appeal and its re‑hearing subject to payment of Rs.300. The costs were duly received by the petitioner. That being so, it is not clearly open to the petitioner to raise any objection in this behalf.

4. Be that as it may, admittedly the appeal was dismissed by the Addl. District Judge on 11th of January, 1989 in the absence of the petitioner and her counsel. Although it is correct, that the Addl. District Judge also went into the merits and found the amount of the trial Court to be unexceptionable but the fact remains that that decision was rendered in the absence of respondent No.2 and could therefore be recalled on sufficient cause being shown as to her absence. The argument of the learned counsel fails to draw distinction between review and re‑hearing of a cause decided in absence of a party. This distinction if I may say so with respect was succinctly brought about by the Full Bench of this Court in the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (P L D 1972 Lahore 603). A similar question, fell for consideration in Abdul Aziz Khan and 3 others v. Noor Muhammad and 5 others (19,95 C L C 583), wherein it was held that an appeal even if decided on merits in the absence of a party, is liable to be re‑heard, if there was sufficient cause for the absence, of that party. The precedents relied upon by the learned counsel have no applicability as what was held therein, is in the absence of a specific provision, and order passed by an authority cannot be reviewed. However, as already indicated in the present case the earlier order was passed in the absence of the respondent and as such re hearing of the appeal does not amount to review of the above decision. Furthermore the petitioner having himself agreed to the re‑hearing and having received cost, is clearly estopped from re‑agitating the matter now. Petition has no force. It is accordingly dismissed. H.B.T./M‑2906/L Petition dismissed.