2016 PLP 98 (CLCN)

MUHAMMAD TARIQ ABBASI, J.

Through this writ petition judgment dated 11.1.2011, passed by the learned Additional District Judge, Multan has been called in question, whereby an appeal filed by the petitioner against the order dated 28.10.2009, passed by the learned Trial Court, through which an application moved by the petitioner for restoration of the petition, for setting side of the ex parte decree has been dismissed.

2. The precise facts are that the respondent No.3 filed a suit, against the petitioner, whereby she claimed maintenance allowance of herself as well as two daughters namely Mst. Razia Bibi, Mst. Fauzia Bibi (respondents Nos.4 and 5) and two sons namely Wajid Ali and Sajjad Hussain (respondents Nos.6 and 7). In the said suit, the petitioner appeared and requested for filing of the written statement but subsequently, became absent. Consequently, the suit was ex parte decreed on 20.1.2007. The petitioner preferred a petition on 20.2.2007, whereby he sought sitting aside of the abovementioned ex parte decree. In the said petition, the issues were framed and the evidence of the petitioner was recorded but he again became absent, hence the petition was dismissed due to non-prosecution on 5.6.2009. For restoration of the said petition, the petitioner moved an application on 21.7.2009, but the learned Trial Court had dismissed it through order dated 28.10.2009. The petitioner filed an appeal but the same was dismissed through the impugned judgment dated 11.1.2011.

3. Feeling aggrieved, the instant writ petition has been preferred with the contention and the grounds that law always favours decision of cases on merits and not on the basis of technicalities but unfortunately both the learned Courts below, while not realizing, the abovementioned proposition have knocked out the petitioner purely on the basis of technicalities and as such a great miscarriage of justice has been done with him.

4. The learned counsel for the petitioner has advanced his arguments in the abovementioned lines and grounds, whereas the learned counsel who has put appearance on behalf of the other side has vehemently opposed the petition.

5. Arguments of all the sides have been heard and the record has been perused.

6. A very strange situation has been noted. Through the plaint, the respondent No.3, has claimed maintenance for herself as well as her above-named daughters and sons. But both above-named sons of the parties who are of reasonable ages, are available in the court standing at the side of the petitioner, with the contention that prior to filing of the suit, they are residing with the petitioner and as such, their mother has wrongly claimed the maintenance allowance to their extent.

7. It has been observed that the ex-parte decree was passed on 20.1.2007, whereby the petitioner was held entitled for the maintenance allowance of the respondent No. 3 as well as her above-named daughters and sons. But as stated above, the sons have come forward with the abovementioned contention. The petition for setting aside of the ex parte decree was moved within time on 20.2.2007. In the said petition, evidence of the petitioner was recorded. In the meanwhile, the ex-parte proceedings were initiated against the respondent No.3, hence an application was moved by her to set aside the proceedings. The due proceedings in the said application were in progress, but due to the absence of the petitioner, his petition for setting aside of the ex parte decree was dismissed on the abovementioned date (05.06.2009).

8. It has been observed that the learned Trial Court, towards passing the order dated 5.6.2009, whereby during the proceeding in an application moved by the respondent No.3, for setting aside ex parte proceedings the petition for setting aside of the ex parte decree, filed by the petitioner has been dismissed, has acted harshly, Even when an application for restoration of petition for setting aside of the ex parte decree was moved, it was also turned down.

9. If the learned Trial Court was bent upon to decide the petition for setting aside of the ex parte decree, even then it should have discussed the evidence of the petitioner, available on the record and then decided the -petition on merit and not in the manner as stated above.

10. When the matter in the shape of appeal came before the learned Additional District Judge concerned, the abovementioned facts and circumstances were totally ignored and in a slipshod manner, the appeal was dismissed through the impugned judgment.

11. While considering all the bovementioned facts and circumstances, especially that two sons, maintenance of whom was also claimed and decreed ex parte are with the petitioner with the abovementioned contention, I am of the view that the decision of the matter should be made on merit in accordance with law, after recording pro and contra evidence of the parties and technicalities should be avoided. Reliance in this respect is placed upon Haji Lal Shah v. Mst. Nooran through L.Rs. and others (2012 CLC 1503), Muhammad Nazir v. Haji Zaka Ullah Khan (2002 CLD 345), Hafiz Muhammad Saeed and 3 others v. Government of the Punjab, Home Department through Secretary, Lahore and 2 others (2009 YLR 2475), Nasreen Bibi v. The State (2009 PCr.LJ 619), Mst. Safeer Begum and others v. Additional District Judge and others (PLD 2011 Lah. 14).

12. The above said view has been strengthened/fortified by the august Supreme Court of Pakistan in the case reported as Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust (2009 SCMR 574).

13. Resultantly, the instant writ petition is accepted, the impugned judgment is set aside and the petition for setting aside of the ex parte decree is restored with a direction to the learned Trial Court to decide the petition within two months on receipt of this judgment. The abovementioned shall be subject to payment of all the outstanding interim maintenance allowance fixed by the learned Trial Court in respect of above-named minor girls namely Mst. Razia Bibi and Mst. Fauzia Bibi, by the petitioner, before the learned Trial Court, within one month from today, failing which the instant writ petition shall be deemed to have been dismissed. MWA/S-54/L Petition dismissed.