2006 PLP 852 (CLC)

MUHAMMAD NAWAZ BHATTI, J.

Brief facts leading to this writ petition are that the petitioner filed three suits, (1) suit for maintenance allowance, (2) suit for recovery of dower and (3) suit for recovery dowry articles, against respondent No.1 before the learned Family Judge, Muzaffargarh, who decreed two suits, one for recovery of maintenance allowance and the other for recovery of dower but dismissed the suit for recovery of dowry articles vide his judgment, dated 17-4-2004. The petitioner challenged the vires of the judgment dated 17-4-2001 passed by the learned Judge, Family Court, Muzaffargarh, whereby a suit for recovery of dowry articles was dismissed. The appeal was also dismissed by the learned District Judge, Muzaffargarh, vide his judgment dated 1-6-2002. Against the said judgment, the petitioner has filed this writ petition.

2. Learned counsel for the petitioner has contended that the written statement to the suit for recovery of dowry articles was not filed by the respondent/defendant Jaffar Hussain himself but was filed by the special attorney of the respondent, as such the same did not deserve consideration and reliance in this behalf is placed on Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah. 495 and that the appeal before the learned District Judge, Muzaffargarh was within time as the copies of the decree sheets of the judgment and decrees were delivered to the petitioner on 4-7-2001 but if it is admitted for the time being that the appeal was barred by time, even otherwise limitation would not run against void order and in this behalf reliance is placed on Mustajab Hassan and others v. Director Trade Organisations and others 1996 CLC 1725 and, therefore, the impugned judgment, dated 17-4-2001 passed by the learned Judge, Family Court, Muzaffargarh and the judgment, dated 1-6-2002 passed by the learned District Judge, Muzaffargarh are illegal, void ab initio and against well-settled principles of equity and law.

3. Arguments heard. Record perused.

4. Perusal of the written statement to the suit for recovery of dowry articles filed by the respondent itself shows that it was filed by Jam Ghulam Rasool special attorney of the respondent/defendant Jaffar Hussain and not filed by the respondent himself. Under section 9 of the West Pakistan Family Courts Act, 1964, a defendant is bound to appear in the Family Court himself for the purpose of filing a written statement and his attendance cannot be dispensed with. Therefore, the written statement filed by the special attorney of the respondent/defendant Jaffar Hussain did not deserve consideration in the eye of law. On this proposition, I am supported by the authority cited by learned counsel for the petitioner i.e. Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah. 495. 4-A. As far as the limitation is concerned, learned counsel for the petitioner has stated that as the decree-sheet of the decree, dated 17-4-2001 was not prepared well in time, the Copying Agency did not deliver the copy to the petitioner on 18-6-2001 and the copy of the decree-sheet of the decree, dated 17-4-2001 was delivered to the petitioner on 4-7-2001 when it was prepared. If it is admitted that the appeal before the learned District Judge, Muzaffargarh was barred by time, even though limitation would not run against the void order. Reliance in this behalf is placed on Mustajab Hasan and others v. Director Trade Organisations and others 1996 CLC 1725. The judgment dated 17-4-2001 was passed by the learned Judge Family Court, Muzaffargarh without the written statement of the respondent/defendant Jaffar Hussain, therefore, it was void and illegal. As the judgment dated 17-4-2001 was illegal and void, limitation would not run against the same order.

5. In view of the above circumstances, this writ petition is accepted, the judgment, dated 17-4-2001 passed by the learned Judge Family Court, Muzaffargarh and the judgment, dated 1-6-2002 passed by the learned District Judge, Muzaffargarh are set aside and the case is remanded back to the learned District Judge, Muzaffargarh to pass a fresh order after hearing both the parties and considering the observations made above. H.B.T./S-42/L Case remanded