2014 PLP 1737 (CLC)

ATIR MAHMOOD, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the legality of judgment and decree dated 7-4-2011 passed by learned Additional District Judge, Jhang who dismissed appeal of the petitioner and upheld order dated 17-2-2011 passed by learned Judge Family Court, Jhang whereby application of the petitioner for setting aside ex parte proceedings dated 18-10-2010 and judgment and decree dated 2-11-2010 was dismissed.

2. Brief facts of the case are that respondent No.1 namely Farah Hussain (the respondent) filed a suit for recovery of haq mahar and dowry articles with the assertions that she was married with the petitioner Babar Hussain on 3-12-2008, however, rukhsati took place on 2-4-2009; that out of this wedlock, minor girl Sajal Fatima was born; that relations between the parties remained cordial in the beginning, however, afterwards, the relations became strained ultimately, the petitioner expelled the respondent from his house after causing physical torture just after one month of the marriage whereafter the respondent settled in the house of her parents; that the respondent was given dowry articles worth Rs.4,44,000 which were lying with the petitioner; that the defendant wrote in the nikahnama that he will give dower Rs.10,000 and land measuring 26 kanals and 14 marlas to the plaintiff which he has not given yet.

3. The petitioner filed contesting written statement. Out of divergent pleadings of the parties, issues were framed and the parties were directed to produce their respective evidence. During the course of evidence of the plaintiffs the petitioner-defendant gave up to pursue the case, therefore, ex parte proceedings were initiated against the petitioner on 18-10-2010 and remaining evidence of the plaintiffs was recorded against ex parte.

4. After recording evidence of the plaintiff, the learned Judge Family Court, Jhang vide judgment and decree dated 2-11-2010 decreed the suit of the respondent-plaintiff in the terms that she is entitled to receive Rs.10,000 as Haq Mehar and dowry articles as per list Exh.P.1 or in the alternative price Rs.300,000.

5. On 20-12-2010, the petitioner moved an application for setting aside ex parte proceedings as well as ex parte judgment and decree dated 2-11-2010 which was dismissed vide order dated 17-2-2011. Feeling aggrieved, the petitioner preferred appeal which also met with the same fate vide judgment dated 7-4-2011. Hence this writ petition.

6. Learned counsel for the petitioner inter alia contends that the impugned order and judgment and decree of learned family court and judgment of learned lower appellate court are against law and fact; that there was sufficient reason given in the application for setting aside ex parte proceedings and ex parte judgment and decree that the petitioner was struck off in flood at Khanda Kot and situation was beyond his control but this was not taken into consideration by learned courts below: that the petitioner has been condemned unheard; that it is settled principle of law that the cases should be decided on merit ignoring the technicalities, therefore, the impugned orders and judgment and decree passed by learned family court and judgment passed by learned lower appellate court be set aside and the case be remanded for decision afresh.

7. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and fully supported the impugned orders and judgments and decree.

8. Arguments heard. Record perused.

9. Scanning of record reflects that the petitioner was pursuing the case in the beginning by engaging his counsel whereafter he suddenly without any information to the court stopped pursuing the case. The only ground raised by the petitioner in application for setting aside ex parte proceedings and ex parte judgment and decree is that due to flood in his mother's village, he went to help his relatives at Khanda Kot and due to this reason neither he could attend the Court nor contact his counsel. This point has rightly been addressed by both the learned courts below stating that even if the petitioner was not available, his counsel being present in the kutchery could appear before the court to pursue the case. Furthermore, in this modern age, telephone and mobile facilities are available everywhere including the villages and none can take plea that he being in a village was unable to contact even his counsel in the city. The ground taken by the petitioner is unconvincing. The impugned ex parte order and ex parte judgment and decree of learned Family Court as well as impugned judgment of learned lower appellate court are in accordance with law. I see no illegality therein.

10. As a result of above discussion, this writ petition is without any force which is accordingly dismissed. MWA/B-26/L Petition dismisse