2000 PLP 2523 (YLR)

(2) Save as may otherwise be prescribed, the plaintiff shall also, within the time specified in subsection (1), cause notice to be published in Newspaper approved by the Family Court of the fact of his having filed the plaint.

9. Written statement. ‑‑‑Within fifteen days of the service of notice upon him by registered post or the appearance of a notice in a Newspaper, whichever is earlier, the defendant shall appear in Court and tile his written statement. (2) . (a) . (b) . (3) (4) If the defendant fails to appear within the time specified in subsection (1). The Family Court may proceed against him ex parte. " Subsection (1) of section 8 of the said Act envisages that the plaintiff at the time of presentation of his/her plaint is required to intimate the defendant through registered post about the institution of the suit within three days and is also required to send a copy of plaint, list of witnesses and copies of all the documents appended and relied upon by the, plaintiff. Subsection (2) of the said provision shows that in absence of any other law the plaintiff is also required to cause a notice through proclamation in some Newspaper approved by the Family Court within three days from the presentation of the plaint. As in Azad Jammu and Kashmir nothing has been otherwise prescribed by the rules under the Act, therefore, the plaintiff is required to do two things simultaneously within three days:‑‑‑ (a) to intimate the defendant through registered post about the institution of the suit; and (b) to cause a notice to each defendants through a proclamation in a Newspaper approved by the Family Court. The word 'shall' has been used in the above referred provision of law but no consequences are provided for non compliance of the said provision of law. It means that this provision of law is not mandatory but directory in nature as no‑penal clause is provided to this provision of law. It is settled principle of law that where no penal clause has been provided to a certain ,p provision of law, then it deems to be directory in nature. Thus, under this provision of law, a plaintiff may intimate the defendant/defendants even after the expiry of three days time‑limit. Subsection (1) of section 9 of the Act provides that within 15 days from service through registered post or through notice in the Newspaper whichever is earlier the defendant shall appear in the Court and file his written statement. It means that maximum time‑limit is 15 days for his appearance and any action against him on the part of the Court before expiry of time‑limit is not warranted under law. Subsection (4) of section 9 of the said Act envisages that if the defendant fails to appear within 15 days, the Court may proceed against him ex parte. It implies that the Court may or may not proceed ex parte and it is left to the discretion of the Court to proceed ex parte or whet wise even after the expiry of 15 days from service. It further shows that to proceed ex parte against a defendant before expiry of time limit is contrary to law. Therefore, the Trial Court in the instant case initiated the ex parte proceedings before expiry of 15 days as time‑limit specified for appearance of the defendant and this act of the Court was not in accordance with law. The position which emerges out from the perusal of the relevant provision of law is that when the Court may abstain its hands to proceed ex parte even after the expiry of 15 days, then to proceed ex parte before the expiry of said time‑limit definitely amounts to subversion to the intent and purposes of the legislation. Testing the case of the respondent on the above criteria, the Trial Court has rightly set aside the ex parte decree as the same was recorded on the basis of ex parte proceedings i.e., before expiry of time‑limit specified in subsection (1) of section 9 of "The Family Court Act". Even otherwise the appellant has brought a suit for jactitation of marriage and the nature of the suit requires its disposal on its merits for the reason that the ex part decree in such‑like case may not leave a positive effect while living in a Muslim society. Thus, in the light of above observation, the appeal being devoid of force is hereby dismissed and the impugned order is allowed to stand. The Trial Court is directed to decide the case on merits at its earliest. H.B.T, 4/Sh.C.(AJ&K) Appeal dismissed.