2022 PLP 479 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Through this single judgment, I intend to decide the instant writ petition as well as connected Civil Revision No.1150-P/2012 titled "Mst. Gul Shad Akhtar v. Mst. Asmat Ara", as in both these petitions common questions of law and facts are involved.

2. Brief facts of these cases are that marriage between respondent No.1 and respondent No.2 (both of Writ Petition No.1163/2011), was solemnized on 29.04.2006 and they resided for some time with each other but thereafter respondent No.2 went abroad and left respondent No.1 at the mercy of his parents but due to cruel and rough treatment with her by his parents, she left the house of her in-laws, stayed in the house of her parents and filed a family Suit No.417/FC on 17.04.2008 against respondent No.2 for dissolution of marriage, recovery of dower, maintenance allowance, recovery of possession of 04-Kanals property situated in the revenue estate of Haryana, a constructed house of 01-Kanal at Garhi Sohbat Khan, Pajagi Road, Tehsil and District, Peshawar and dowry articles. On 30.09.2008, when the petitioner did not appear despite the fact that in his presence on 15.09.2008, the case was adjourned for 30.09.2008, therefore, he was proceeded against ex-parte and the case was posted for recording of ex-parte evidence. On 24.10.2008, evidence of respondent No.1 was recorded, however, after recording of ex parte evidence, the petitioner appeared through his counsel and submitted an application for setting aside of ex parte proceedings, notice whereof was issued to respondent/decree holder. On the date fixed i.e., 11.11.2008, learned counsel for the plaintiff/respondent No.1 appeared before the learned trial Court and at the margin of order sheet, he endorsed his no objection for setting aside of ex parte proceedings, thus, the application filed by the petitioner was accepted and the case was fixed for written statement and adjourned to 29.11.2008. Written statement was submitted on 02.12.2008 and the case was fixed for pre-trial reconciliation and adjourned to 18.12.2008. On the date fixed, no one appeared for petitioner and ultimately he was once again proceeded ex parte, therefore, the case was adjourned to 09.01.2009 and on 09.01.2009 on the basis of evidence already recorded, ex-parte decree was passed in favour of respondent No.1 against petitioner, where-after, he submitted an application for setting aside of ex-parte decree on 02.02.2009 and on 09.03.2010, once again the application for setting aside of ex-parte decree was dismissed for non-prosecution. It is worthwhile to mention that an application bearing No.28/1 was submitted by the petitioner for restoration of application for setting aside of ex-parte decree, which was dismissed on 07.10.2010. It is pertinent to mention that the order dated 09.01.2009 vide which the suit filed by respondent No.1 was partially decreed was assailed by her and after hearing both the parties on 15.05.2009, the appeal of respondent No.1 was allowed and the petitioner feeling himself aggrieved filed Writ Petition No.1864/2009 before this Court, which was dismissed on 26.11.2009 in limine. Being not satisfied from the order of this Court, the petitioner has filed Civil Petition No.155-P of 2010 for leave to appeal before the apex Court wherein on 26.08.2010, learned counsel for the petitioner stated that an application for setting aside ex-parte decree is pending before the trial Court as such, on his request, the matter was adjourned and thereafter, when application for setting aside of ex-parte decree was decided and Civil Petition referred to above was also dismissed and leave was declined on 14.03.2011. Through instant petition, the petitioner has assailed the order of learned trial Court when he was proceeded ex-parte and on his application ex-parte proceedings were set aside and the suit was decreed on 09.01.2009, being illegal, unwarranted, unjust, not in consonance with law and procedure, arbitrary and void-ab-initio.

3. Learned counsel for the petitioner contended that once ex-parte proceedings were set aside, the petitioner was given an opportunity to submit written statement and he in compliance with the directions of learned trial Court has filed written statement but thereafter, could not appear due to which, not only once again he was proceeded ex-parte but on the basis of evidence already recorded, suit filed by respondent No.1 was decreed, which according to him, is illegal and against the law on the grounds: (i) That the date on which the petitioner was proceeded against ex-parte was not the date of hearing; (ii) That learned trial Court was bound to issue a notice to him, before proceeding ahead and giving any verdict against him; (iii) That the judgment and decree passed against the petitioner does not reflect the version of petitioner; (iv) That on the basis of evidence already recorded no decision / decree could have been passed; (v) That the findings rendered by this Court in Writ Petition No.1864/2009 and by the apex Court in Civil Petition No.155 dated 14.03.2011 are per-in-curiam.

4. In support of his contention, he placed reliance on PLD 2014 Balochistan 71, 2014 SCMR 914, 2014 SCMR 907, 2017 SCMR 1, 2020 SCMR 490, PLD 2005 SC 337 and 2015 SCMR 166.

5. As against that, learned counsel for respondent No.1 contended that no doubt, the petitioner appeared before the learned trial court and submitted application for setting aside of ex-parte proceedings which was not objected by the respondent No.1 and he was provided an opportunity of being heard and to submit his stance through written statement. He added that after filing of written statement when once again, respondent disappeared and evidence of petitioner was already recorded therefore, the learned trial court acted in accordance with law when petitioner was proceeded against ex-parte and ex-parte decree was passed on 09.01.2009. He went on to say that all these questions, as urged by learned counsel for the petitioner were settled by this Court against which, Civil Petition for leave to appeal was filed before the Hon'ble Supreme Court of Pakistan and the same was turned down and the leave was refused and the findings of the Hon'ble Supreme Court are still intact, which once again cannot be agitated before this Court.

6. Arguments heard and record perused.

7. A specific mechanism was provided in the West Pakistan Family Courts Act, 1964 for settlement of dispute relating to the marriage and family affairs and also other ancillary matters connected therewith. The basic object of the Act, 1964 was to facilitate the parties seeking their rights and to provide expeditious justice and to curtail insufficient delay in legal and procedural formalities as this Act did not intend to create hurdles, problems and difficulties for spouses or for the Courts dealing with their matters. Section 9(5) of the Act, 1964 envisages that when the defendant did not appear on the date fixed by the Court, he would be proceeded ex parte. Before appreciating the controversy as urged by the learned counsel for the petitioner, it would be appropriate to reproduce section 9(5), which reads as: "Section 9 (5) If the defendant fails to appear on the date fixed by Family Court for his appearance, then: (a) if it is proved that the summons or notice was duly served on the defendant, the Family Court may proceed ex parte. Provided that where the Family Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such term as the Family Court directs, be heard in answer to the suit as if he had appeared on the day fixed for his appearance; and (b) if it is not proved that the defendant was duly served as provided in subsection (4) of Section 8, the Family Court shall issue fresh summons and notices to the defendant and cause the same to be served in the manner provided in clauses (b) and (c) of subsection (1) of Section 8".

8. A look at the above reproduced provision makes it abundantly clear that in case when the defendant was proceeded ex-parte and on showing or assigning good cause or reasons for his non-appearance, ex-parte proceedings are set aside. Likewise, section 9(6) provides the period within which, the application for setting aside of ex-parte decree could be filed and when it was proved that either the defendant was not served properly or he was prevented by sufficient cause from appearing, when the suit was heard or called for hearing, the Court shall set aside the ex-parte decree. When earlier, the petitioner was proceeded ex-parte and he submitted an application, and on acceptance of his application, he was allowed to join the proceedings and to submit the written statement. Record also reflects that during the period when he was proceeded ex parte, the evidence of respondent No.1 has already been recorded. When written statement was filed, learned trial Court has fixed the case for pre-trial reconciliation and in his presence, it was adjourned for the next date of hearing. Order sheet of the learned trial Court of 02.12.2008 reads as under:- "Counsel for plaintiff present while defendant through Clerk of counsel present. Written statement submitted today and placed on file. To come up on 18.12.2008 for pre-trial reconciliation."

9. The term "date of hearing" has not been defined in Family Courts Act, 1964 and Family Courts Rules, 1965, however, the term "date of hearing" would mean the date on which, the cause proceeds ahead, a step taken in the proceedings. The term "reconciliation" is in fact a progress of suit when in presence of the parties even the suit can be disposed of on such terms and conditions as settled between them, therefore, what I mean to say that the date fixed for reconciliation is a date of hearing and when this date was fixed in presence of the petitioner or his counsel then on the next date of hearing, his non-appearance would be termed as deliberate or intentional unless proved otherwise. On 18.12.2008, when none appeared for defendant, he was rightly proceeded ex-parte and even he did not bother to keep himself aware from the proceedings of the suit and ultimately on 09.01.2009, ex-parte decree was passed against him.

10. Furthermore, no doubt, the petitioner has submitted his written statement by controverting the allegations, however, when he did not appear and he was proceeded ex-parte and the evidence of the petitioner, which was already recorded, was sufficient to decide the suit pending before the Court. Learned trial Court was not bound to record a fresh evidence and similarly, the respondent was not required to produce her witnesses or to appear herself in person and corroborate the stance taken by her. When the evidence was available, the learned trial Court was justified, unless respondent No.1 requested for producing further evidence, to give verdict and to decide the matter pending before it. The contention of the worthy counsel for the petitioner that on the basis of evidence already recorded, after submission of the written statement, the Court could not decide the fate of the suit, has no force at all.

11. More importantly, perusal of record reveals that respondent No.1 has filed an appeal against the judgment and decree of learned Judge Family Court dated 09.01.2009 wherein, on 15.05.2009, the petitioner appeared through Miss Farhana Marwat, Advocate, contested the appeal and the appeal was allowed on 15.05.2009 by learned Additional District Judge-V, Peshawar. Interestingly, the findings of the learned appellate Court were challenged by the present petitioner along with Jah-e-Man wife of Akhtar Munir before this Court through Writ Petition No.1814/2009. It is pertinent to mention that on 16.10.2009 when learned counsel representing the petitioners (as then they were) namely Miss Farhana Marwat, Advocate appeared and, on her request, this Court adjourned the proceedings in the following manner: "Stated that application was made before District Appeal Court with a prayer to stay proceedings till disposal of the application of the petitioners seeking setting aside ex-parte decree but was not adhered to. The petitioners are directed to file the attested copy of that application and replication, if any, submitted by the other side, where-after, this petition be relisted. Adjourned."

12. Thereafter, on 26.11.2009, this Court decided the petition filed by the petitioners, the operative part of the findings of this Court for convenience is reproduced as under: "

5. The Legislature has drastically amended various provisions of the Family Court Act and has made the proceedings before Family Court entirely summary in nature, therefore, the husband cannot be given that much latitude. In this case, the petitioner was placed ex-parte for the second time albeit he had appointed an attorney who engaged a counsel to contest the case but both disappeared for which no plausible reason has been shown to justify such conduct thus, the only legitimate inference would be that the petitioner wanted to thwart the progress of the trial and to delay the same for indefinite period. The amended provisions of the Family Court Act in no manner permit such conduct nor it can be approved in the given circumstances and when he himself has forfeited his right of defence through his own conduct then he was blamed himself and no one else "

13. The writ petition filed by the then petitioners was dismissed in limine, against which, the petitioners approached to the apex Court through Civil Petition No.155-P of 2010 when it was fixed for 26.08.2010, learned counsel for the petitioners stated before the apex Court that an application for setting aside of ex-parte decree is pending before the Family Court and is fixed for 04.09.2010, whereby, the apex Court has directed the Family Court to decide the application on the next date of hearing and the petition was adjourned.

14. Record reveals that the application of petitioner was dismissed by the learned Judge Family Court/Civil Judge-VIII, Peshawar on 07.10.2010. After dismissal of application for setting aside of ex-parte decree, Civil Petition No.155-P of 2010 was fixed before the Hon'ble Supreme Court on 14.03.2011 and in presence of the present petitioner, who was represented by Mr. M. Ajmal Khan, ASC and the Civil Petition filed by him was dismissed. The operative part of the judgment of the apex Court is reproduced as under: "

4. We have learnt that the application moved by the petitioner for setting aside the ex-parte decree has been dismissed by the trial as well as the appellate Courts on the ground that the High Court had already given decision on merits. Apart from this, the petitioner had not pursued the case with due diligence. This was the second time that he was proceeded ex-parte. Even the application for setting aside the ex-parte proceedings were filed after the evidence was recorded and during this period the petitioner remained unrepresented.

5. As to the merits of the case, the learned counsel for the petitioners had not disputed the respondent's claim to the cash of Rs.10,000/- twenty-five Tolas of gold ornaments as part of the dower and five Kanals land. Upon perusal of the Nikahnama, we found that it does mention five Kanals of lands as dower. There is no mention of a house. However, the respondent in her plaint had expressly stated that five Kanals of land was spilt into four Kanals of un-built land and a house constructed on the one Kanal. The petitioners in their written statement did not expressly deny the construction of house on the land mentioned in the Nikahnama as dower. The respondent had further in her testimony explained that the house given to her as dower was the one where she had lived with her husband after the marriage."

15. Moreso, execution petition No.39/10 was filed before the executing Court on 8-7-2009, however, on 27-4-2011, the proceedings to the extent of recovery of possession of the house was stayed by this Court. The validity of the decree of the learned trial Court on 09.01.2009 remained the subject matter of appeal and decided in his presence, thereafter, by this Court in Writ Petition No.1864/2009 dated 26.11.2009 and ultimately the Hon'ble Supreme Court dismissed Civil Petition for leave to appeal on 14.03.2011 as reproduced (supra).

16. The term "per-in-curiam" is defined as "when the Court has acted in ignorance of previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case, it must decide, which case to follow or when it has acted in ignorance". In legal parlance, it may be defined as "through lack of care". The Hon'ble Supreme Court in PLD 2019 SC 749 in the matter of "Moinuddin and others v. The State and others" has held the "judgment per-in-curiam" as "therefore, if a judgment or decision of this Court which is found to be per incuriam, it shall be the duty of this Court to correct such wrong verdict and to set the law right. And the Court should not shun from such a duty". It was held by the Hon'ble Larger Bench that "if any law which has been invalidly pronounced and declared by this Court, which in particular is based upon ignorance of any provisions of the Constitution and / or is founded on gross and grave misinterpretation thereof, the provisions of the relevant law have been ignored, misread and misapplied, the law already enunciated and settled by this Court on a specific subject, has not been taken into account, all this, inter-alia, shall constitute a given judgment(s) as per incuriam, and inconsistent / conflicting decision of this Court shall fall in that category", therefore, keeping the basic definition of per-in-curiam and while taking guidance from the principle enunciated by the apex Court in the case (supra) neither this Court can declare the findings rendered by the apex Court in Civil Petition No.155-P dated 26.08.2010 nor on the touch stone of the principle of the judgment of the apex Court, the earlier decision rendered by this Court in Writ Petition No. 1864/2009 dated 26.11.2009 and that of the apex Court dated 26.08.2010 in Civil Petition No.155-P of 2010 was the result of ignorance of law rather while hearing both the parties, appreciating the facts, a decision was given, thus, this argument too is misconceived.

17. Turning to Civil Revision No.1150-P/2012 titled "Mst. Gul Shad Akhtar v. Mst. Asmat Ara and another", in which, the sister of respondent No.2 (Nijat Ali) petitioner of the Writ Petition No.1163/2011 has filed an application/objection petition for releasing of foreign currency (GBP) Account No.5511009 alongwith Lockers etc. in the Bank of Khyber, Saddar Road Branch, Peshawar Cantt., before executing Court with the contention that on 11.07.2011 account of judgment debtor bearing 40817 US Dollar alongwith Lockers were attached. The application was contested and the learned executing Court framed five (5) issues and evidence was recorded, after completion of evidence, the learned Judge Family Court on 14.07.2012 dismissed the objection petition, against which, Civil Appeal No.88/13 was filed before the learned District Judge, which was entrusted to the learned Additional District Judge-VI, Peshawar and the same was dismissed on 24.09.2012. Learned executing Court in its decision observed that:- "In rebuttal the respondent appeared as RW-1 and she fully denied the contentions of the objector in her statement. After going through the above-mentioned facts and evidence in the light of the available record it appears that the objector totally deviated from her previous assertion which she has taken in the objection petition. She has not mentioned in her objection petition that her father-in-law had brought Rs.60,00,000/- from abroad which was given to her in lieu of dower by her husband. She also failed to prove that the said amount was given to her husband out of the legacy of his father and he was waived of his share in favour of his brothers and sisters in another property of his father. Nothing in black and white is produced by the objector in this respect. Moreover, in her entire evidence she stressed that the account in question is her sole ownership and she has not mentioned the locker in her statement. As far her source of income is concerned her entire evidence suggests that she belong to a middle-class family and her total monthly income is Rs. 20,000/-. She has four children and she along with her husband is incurring the household expenditure and education expenditure of their children. She stated that she had sponsored her brother Nijat Ali for education in England vide EXPW 1/6 which was executed in year 2008, whereas the evidence suggests that her brother Nijat Ali had gone to England in the year 2004. She is not financially so sound to sponsor her brother for education abroad, therefore, the EXPW 1/6 is afterthought document. She miserably failed to prove that the amount in the account in question belong to her as she has meager source of income and she is not able to maintain a heavy foreign currency account. On the other hand, the evidence positively suggests that her brother Nijat Ali resided in England since 2004 and the account in question belong to him as the same is pound sterling account. The objector also failed to bring any evidence from the concerned Bank to prove that the account in question is joint account and she was authorized to operate the same ".

18. The petitioner could not prove his locus standi, cause of action, source of income as such, her stance was turned down. This petition was filed by Mr. Naqeeb Ahmad Takkar, Advocate, however, later-on, Mr. Javed Iqbal Gulbela, Advocate has submitted his power of attorney for petitioner. Today, Mr. Tahir Khan, Advocate on behalf of Mr. Javed Iqbal Gulbela, Advocate appeared and heard.

19. It appears that even the instant petition is in fact was filed by the petitioner in order to frustrate the execution petition filed by respondent No.1 and which is pending since 2011. As in earlier round of litigation, respondent No.2 tried to get set aside the decree passed against him, but when failed even from the Hon'ble Supreme Court, in second round, his sister (petitioner) filed the objection petition. Respondent No.2 in person and Mr. Saifullah Khan Khalil, Advocate supported the contention of petitioner, however, both the Courts below have rightly turned down the objection petition and that too after recording of pro and contra evidence.

20. No misreading and non-reading, misapplication of law, or legal infirmity was pointed out by the petitioner, therefore, for the reasons discussed above, this writ petition with C.M. No.94-P/2012 as well as connected Civil Revision No.1150-P/2012 with C.M. No.1018-P/2012 being misconceived, are hereby dismissed with no order as to cost. SA/156/P Petitions dismissed.