2017 PLP 2466 (YLR)

SADAQAT HUSSAIN RAJA, J.

This appeal has been filed against the judgment and decree dated 30.09.2015 and order dated 26.09.2016 passed by the learned Civil Judge/Judge Family Court Sehnsa. Precise facts of the case are that respondents, herein, filed a suit for payment of maintenance allowance against Khizar Badshah, appellant herein, in the Court of Civil Judge/Judge Family Court Sehnsa on 24.08.2015. Vide order dated 22.09.2015 the learned trial Court proceeded ex-parte against the defendant/appellant, herein, and after recording evidence of the plaintiff and hearing ex-parte arguments decreed the suit vide ex-parte judgment and decree dated 30.09.2015. On 17.05.2016, appellant herein, filed application for setting-aside ex-parte decree dated 30.09.2015 stating therein that the applicant is living abroad and seldom comes to Pakistan. It was further stated that non-applicants in his absence filed suit for maintenance and obtained decree in their favour. It was alleged that as the applicant is living abroad, hence, has no knowledge about the institution of the suit and the proclamation has been published in the newspaper which is not of wide circulation and is not read abroad, hence, ex-parte decree may be set-aside. The non-applicants filed objections on the application stating therein that applicant deliberately remained absent and the application is time barred. The learned trial Court rejected the application vide order dated 26.09.2016, hence, the captioned appeal. I have heard the learned counsel for the parties and gone through the record of the case. It may be stated that the applicant/appellant categorically stated in his application that he has not been served and the judgment and decree dated 30.09.2015 has been obtained in his absence without service. It is further stated by him that proclamation has been published in a newspaper which is not of wide circulation and is not read in abroad. The learned Court below rejected the application filed by appellant herein on the ground that the same has not been filed within the period of 30 days of the passing of the decree by relying upon Rule 13 of the Family Courts Procedure Rules, 1998. The same like controversy came under consideration of the Lahore High Court in case titled Mst. Nasreen v. Additional District Judge with power of Guardian Judge, Alipur and others (PLD 2007 Lahore 576). In that case respondent, therein, filed an application before Guardian Judge against the petitioner, therein, for custody of minor children. The learned Guardian Judge allowed the application ex parte vide order dated 20.04.2005. On 10.06.2006, petitioner, therein, filed application for recalling ex-parte order. The learned Guardian Judge dismissed the application on the ground that the same is barred by limitation. Revision against the order was also dismissed by learned Additional District Judge on 01.12.2006. Petitioner, therein, filed writ petition before the High Court against the order. The Lahore High Court while relying upon PLD 2004 SC 154, accepted the writ petition and set-aside the orders impugned before him and at page 580 of the report observed as under:-- "It is established principle of law that court should always lean in favour of adjudication of causes on merits and nobody to be non-suited on technical grounds." In the instant case the learned trial Court neither framed issues nor provided the parties an opportunity to lead evidence in support of their claim and rejected the application in summary manner. It is admitted by the plaintiff/respondents that appellant is living abroad and seldom comes back to Pakistan. It is also not denied by the plaintiff/respondents in her objections that she did not know the address of the appellant at England, however, she deliberately did not enter the same address in the suit. The newspaper in which proclamation was published is also not of wide circulation, therefore, it cannot be said that defendant/appellant was served properly. No doubt, the provisions of Code of Civil Procedure are not applicable in the proceedings before the Family Court, however, the general principle of the Civil Procedure Code are applicable, as has been held in 2013 SCR 1119, therefore, rejection of the application by the trial Court filed for cancellation of ex parte decree was not justified without framing issues, providing the parties an opportunity to lead evidence in support of their claim, especially so, when defendant/appellant categorically stated that he is living abroad and has not been served and the plaintiff admitted the fact that he is living abroad. In view of above, the appeal stands accepted, order dated 26.09.2016 as well as ex-pate judgment and decree dated 30.09.2015 stand set-aside. The suit filed by Tayyaba Fatima and others, respondents, herein, would be deemed pending. The learned trial Court shall decided the controversy after providing the parties an opportunity to lead evidence in accordance with law. ZC/23/Sh.C(AJ&K) Appeal allowed.