2007 PLP 1807 (MLD)
MUHAMMAD ZAHEER — Petitioner Versus SHUMAILA ZAIB and another — Respondents
| Citation | 2007 PLP 1807 (MLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | MUHAMMAD ZAHEER — Petitioner Versus SHUMAILA ZAIB and another — Respondents |
| Primary Law | West Pakistan Family Courts Act (XXXV of 1964) |
Q1: What are the key laws and sections cited in 2007 PLP 1807 (MLD)?
This judgment primarily cites: West Pakistan Family Courts Act (XXXV of 1964) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2007 PLP 1807 (MLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2007 PLP 1807 (MLD) (MUHAMMAD ZAHEER — Petitioner Versus SHUMAILA ZAIB and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Agha Abdul Hassan Arif for Petitioner.
Headnotes / Summary
S.5, Sched. & S.9(6)
Constitution of Pakistan (1973), Art.199
Constitutional petition
Suit for recovery of dowry articles
Ex parte decree, setting aside of
Case for recovery of dowry articles, having been decreed ex parte, petitioner had filed application under S.9(6) of West Pakistan Family Courts Act, 1964 for setting aside the same
Family Court stayed the execution proceedings directing petitioner to furnish Bank guarantee of decretal amount
Section 9(6) of the West Pakistan Family Courts Act, 1964 was explicit and clear and had ordained that "aggrieved" party could make such application and plead reasons for his absence
If the applicant was able to persuade the court by showing that his non-appearance was neither contumacious nor deliberate, he could be granted relief prayed for
No condition having been attached .in that behalf, imposition of condition of Bank guarantee upon petitioner was not in consonance with law
Constitutional petition was allowed, impugned order was set aside, with direction to Family Court to decide application under S. 9(6) of West Pakistan Family Courts Act, 1964 filed by the petitioner in accordance with law on merits expeditiously.
Judgment & Decree
SYED ASGHAR HAIDER, J.
The respondent No.1 filed a Suit for Recovery of Dowry Articles, wherein the petitioner/defendant was proceeded against ex parte on 19-1-2005, whereafter the evidence of the plaintiff/respondent No.1 was recorded and the suit decreed. The respondent No.1 filed an execution petition, the petitioner entered appearance, pursuant to issuing of his non-boilable warrants. He thereafter filed an application under section 9(6) of the West, Pakistan Family Courts Act, 1964, praying-that the ex parte decree, dated 18-5-2005, be set aside, while entertaining the application; the respondent No.2 directed the petitioner to provide a bank guarantee in the decretal amount and an injunctive order was issued. The respondent No.1 was directed to file reply, later the petitioner prayed that his application be decided on merits and as he was not in a position to furnish bank guarantee. The injunctive order was vacated on 4-3-2006, and execution proceedings commenced.
2. The learned counsel for the petitioner contended that, the direction to furnish bank guarantee is violative of the principle enunciated in "Abdullah v. Mst. Zubeda Begum and others" 1988 CLC 1631, even otherwise, the proceedings under section 9(6) of the West Pakistan Family Courts Act, 1964, grant an unabridged right to the aggrieved party to file such application, and it is to be decided without imposition of conditions.
3. Despite service, the respondent No.1 did not enter appearance, she therefore was proceeded against ex parte.
4. I have heard the learned counsel for the petitioner and perused the order sheet. The petitioner filed an application under section 9(61 of the West Pakistan Family Court Act, 1964, seeking the setting aside of the ex parte decree. The Family Court, stayed the execution proceedings directing the .petitioner to furnish bank guarantee of decretal amount.
5. Section 9(6) of the West Pakistan Family Courts Act, 1964, is explicit and clear and ordains that the "aggrieved" party can make such application and plead reasons for .absence, in case, the applicant is able to persuade the Court, by praying that his non-appearance was neither contumacious nor deliberate, he can be granted the relief prayed for. There is no condition attached in this context, therefore, the imposition of the condition of bank guarantee upon the petitioner by the. .respondent No. 2, was not in consonance with law and violative of the principle settled is 1988. CLC 1631 "Abdullah v. Mst. Zubeda Begum etc." Therefore, this petition is allowed, the impugned order, is set aside, the Family Court is directed to decide the application under section 9(6) of the West Pakistan Family Courts Act, 1964, tiled by the petitioner in accordance with law on merits expeditiously. H.B.T./M-450/L Case remanded.