P L D 1993 Lahore 810 (PLP)

(Mian Nazir Akhtar, J) filed within a petiod of six years under the residuary Article 120 of the I imitation Act. In support of his contentions he places reliance on the following judgments:- (1) Muhammad Nawaz v. Mst. Khursbid Begum. and 3 others PLD 1972 SC 302. (2) Rashid Ahmad Khan v. Mst Nasim. Ara and others PLD 1968 Lah. 93. (3) Ghulain Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543. (4) Muhammad Yusuf v. Mst. Nafeesa Khatoon and others 1980 SCMR

385. This Constitution petition has arisen out of a petition filed by Mst. Rukhsana Kanwal, respondent No.4 against the petitioner- on 11-2-1988 before the Chairman, Arbitration Council for grant of maintenance allowance. The petitioner appeared before the Chairman on 25-2-1988. The parties nominated their representatives whereupon the Arbitration Council was constituted. The . The record parties appeared before the Arbitration Council on 3-3-1988 and 7-4-1988 but before the Chair--. Ward 1740.84, "atqa Sanabad, no reconciliation, could be brought about between them. The Arbitration Council granted last opportunity to the parties for the purpose of reconciliation failing which they were ordered to produce their evidence on 21-4-1988. On the adjourned date the petitioner absented himself whereupon evidence of respondent No.4 was recorded in his absence and an ex parte order for grant of maintenance was passed on 28-4-1988. The petitioner challenged the said order by way of a revision petition which was dismissed by the Collector as being time-barred vide his order dated 12-10-1991. 3.The petitioner's learned counsel strenuously urged that the petitioner was condemned unheard before the Arbitration Council. He had no knowledge about the ex parte order passed by the Arbitration Council, therefore, his revision petition was within time from the date of knowledge. He further submits that respondent No. 4 had herself left the petitioner's house and was not entitled to the grant of maintenance. Lastly he submits that grant of maintenance beyond the period of 3 years is without lawful authority and of no legal effect. In this connection, he places reliance on the following judgments:-- (1)Mst. Hajiran Bibi v. Abdul Khaliq PLD 1981 Lahore 761. (2)Sheikh Abdul Karim v. Mst. Irshadunnisa. Beguin and 6 othern PLD 1977 Kar. 477. (3) Mst. Bibi Musarat v. Sarfraz 1990 CLC 1908. (4) Abdul Latif v. Mst. Bakhat Bhari 1985 CLC 1154. On the other hand, the learned counsel for the respondent No.4 submits that on 7-4-1988 the case was adjourned for 21-4-1988 in the presence of the petitioner. He had full, knowledge about the date of hearing and could not urge that notice for the said date was not served on him. He further submits that the material on the record clearly shows that respondent No.4 was turned out from the house by the petitioner and that legally she was entitled to grant of maintenance. Further submits that suit for recovery of maintenance can be filed within a period of six years under the residuary article 120 of the Limitation Act. In support of his contention he places reliance on the following judgements:-- (1) Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC302. (2) Rashid Ahmad Khan v. Mst. Nasim Ara and others PLD 1968 Lah.93. (3) Ghulam Nabi v. Muhammad Asghar and 3 others PLD SC 543. (4) Muhammad Yusuf v. Mst. Nafeesa and others 1980 SCMR 385.

4. The record clearly shows that the petitioner was duly sserved with a notice to appear before the Chairman, Ward No.84m, Halqa Samanabad, Lahore. Accordingly he appeared before him and both the parties nominated their representatives whereupon the Arbitration Council wag lawfully constituted. On 7-4-1988 the parties failed to reconcile. The Arbitration Council gave a last and final chance to them to enter into reconciliation failing which they were ordered to appear with their witnesses on 21-4-1988. The parties failed to reconcile. However, on 21-4-1988 only respondent No.4 appeared before the Arbitration Council along with her witnesses. Her ex parte evidence was recorded by the Arbitration Council and thereafter the case was adjourned for 28-4-1988. On that date the Council heard arguments and allowed the application for grant of maintenance at the rate of Rs.400 per month. Past maintenance for a period of 5 years and 8 months was also allowed. Since on 7-4-1988 the case was adjourned for 21-4-1988 in the presence of the petitioner, it was not necessary for respondent No.2 to issue another notice to him. In the revision petition filed by the petitioner the petitioner had generally alleged that all the proceedings of the Arbitration Council were conducted in his absence. He did not give full and true facts in the revision petition. As mentioned above, he had duly received a notice and had appeared before the Arbitration Council on three dates and that on 7-4-1988 the case was adjourned for 21-4-1988 in his presence. He did not specifically urge in the grounds of the revision petition that the said date was not fixed in his presence. In this view of the matter it can be safely held that the ex parte proceedings were rightly taken by the Arbitration Council. Hence no fault can be found with the impugned order on this score.

5. However, the question whether past maintenance for a period beyond three years could be allowed by the Arbitration Council requires deeper examination. It is batted law that a Muslim husband is under a legal obligation to maintain his wife and if she is forced to live away from him for no fault on her part, even then he has to provide maintenance allowance, to her. In such a case the wife can claim past maintenance as held in the following judgments-- (1) Rashid Ahmad Khan v. Mst. Nasim Ara and others (PLD 1968 Lahore (2) Muhammad Yusuf v. Mst. Nafeesa Khatoon and others (1980 SCMR 385). (3) Ghulam Nabi v. Muhammad Asghar and 3 others (PLD 1991 SC 543). (4) ShabihurRaza v. Mst. Sartaj Fatima and 2 others (PLD 1975Lahore 690). (5) Mst. Hajiran Bibi v. Abdul Khaliq (PLD 1981 Lahore 761). (6) Sheikh Abdul Karim v. Mst. Irshadunnisa Begum and 6 others (PLD 1977 Karachi 477). (7) Muhammad Najeeb v. Talat Shahnaz and 2 others (1985 CLC 649). No doubt, in section 278 of Muhammadan Law (by D.F. Mullah-- 1 1967 Edition) it has been stated that a wife is not entitled to a decree for past maintenance unless the claim is based on a specific agreement or a decree for past maintenance has been passed in her favour under section 488 of the Cr.P.C. This view was not upheld by the superior Courts of this country and was specifically dissented from in the case of Mst. Bibi Musarat v. Sarfaraz 1990 CLC 1908. In Rashid Ahmad Khan's case, a Division Bench of this Court had, held that past maintenance could be granted subject to limitation. In the said case the wife was granted maintenance for a period from 10-2-1965 up to 15-4-1966. However, it was not specifically mentioned as to whether the period of limitation was three years or six years.

6. In the various judgments cited by the learned counsel for parties in some cases it has been emphasised that a wife could recover past maintenance for a period of three years while in others past maintenance for a period exceeding three years has been allowed. In the case of Muhammad Nawaz relied upon by the respondent's learned counsel the Hon'ble Supreme Court was pleased to uphold the view of the High Court that the claim for past maintenance was governed by Article 120 of the Limitation Act and that the Arbitration Council had rightly allowed maintenance for a period from May 1962 to February, 1968. The argument of the petitioner's counsel that before the Arbitration Council an application is made under section 9 of the Muslim Family Laws Ordinance for grant of maintenance therefore, the limitation is to be governed by the residual Article 181 relating to applications, thou apparently attractive, is devoid of force. Article 181 of thus Limitation Act relates to applications filed under the provision of C.P.C. It was so held by the Privy Council in the case of Hansraj Gupta and others v. Official Liquidators of Dehra Dun etc. Company 54 Allahabad 1067 (PC). The same view was expressed by the Hon'ble Supreme Court in the case of Naem Finance Ltd. and another v. Bashir Ahmad Rafiquie Administrator, Muslim ,Insurance Company Ltd. and another PLD 1971 SC

8. The said judgment followed in the case of Jam Khurshid Khan v. The Province of West Pakistan P L D 1973 Lah.

131. Thus Article 181 of the Limitation Act applies to applications under the C.P.C. and would be attracted in all proceedings under the special or local laws to which the provisions of the C.P.C. have been made specifically applicable. So far as the proceedings before the Arbitration Council are concerned, the provisions of the C.P.C. have not been made applicable to the same. The said proceedings are governed -by the rules framed under the Muslim Family Laws Ordinance. Hence, the limitation provided under Article 181 of the Act has no relevancy in relation to applications for grant of maintenance under section 9 of the Ordinance. The petitioner's learned counsel stressed that the petition under section 9 of the Ordinance for grant of maintenance cannot be equated with a suit so as to attract the provisions of residual Article 120 of the Limitation Act. The case of Muhammad Nawaz referred to above is a complete answer to the arguments of the petitioner's learned counsel. Respectively following the law laid down by the Hon'ble Supreme Court in the said case, I hold that the respondent No.4 is entitled to claim past maintenance for a period of six years.

7. The material on the record shows that Mst. Rukhsana Kanwal respondent No.4 was turned out of the house by the petitioner on 15th of August, 1982. The ex parte evidence produced by. the respondent No.4 remained unrebutted. Therefore, the Arbitration Council is justified to award past maintenance to respondent No.4 from 15-8 1982 tin the date of the order i *c. 28-4-1988. The petitioner's learned counsel laid great stress on the fact that in the application (Annex. Q submitted by the petitioner before the D.S.P. it was stated by the petitioner that his wife Mst. Rukhsana Kanwal had left his house without -informing him. The contents of the application cannot be looked into at this stage because the petitioner had opted not to appear before the Arbitration Council and produce his evidence to rebut the claim of respondent No.4 that she was actually turned out by the petitioner from his house on 15th of August, 1982.

8. For the foregoing discussion, I do not find any merit in this petition which is dismissed leaving the parties to bear their own costs. AA./M-1161/L PETITION DISMISSED