2014 PLP 1365 (SCMR)

MIAN SAQIB NISAR, J.

Respondents Nos.3 to 5 brought a suit for the recovery of dowry articles, gold ornaments, medical expenses and the maintenance allowance against the petitioner wherein he was duly served, yet he failed to appear before the Court, and obviously did not file his written statement, therefore, his defence was struck off on 4-7-2008. Against this order, the petitioner filed a review petition, which was dismissed on 30-1-2009. These (two) orders were challenged by the petitioner in appeal, which was dismissed on 18-8-2009, on account of non-deposit of the process fee. Thereafter, the learned trial Court still issued notice to the petitioner, but he failed to appear and was proceeded ex parte vide order dated 5-11-2009. Anyhow on account of ex parte evidence of the respondent, which was recorded, the suit on 13-1-2010 was partly decreed in the terms, that the maintenance allowance was allowed to respondent No.3 as per the amount mentioned in the decree and the dowry decree was also granted, but the medical expenses and the value of the gold ornaments were declined to her. Respondent No.3, being aggrieved, filed appeal against this judgment and decree, but only to the extent of medical expenses and the improper evaluation of the gold ornaments. The petitioner in the said appeal moved cross objections, which were dismissed on 9-7-2011, however in the appeal of respondent No.3, the matter was remanded to the learned Family Court for fresh evaluation of the gold ornaments and also to adjudge, whether she is entitled to recover the medical expenses. Be that as it may, the petitioner challenged the judgments and decrees of both the courts below before the learned High Court in the constitutional jurisdiction, which has been dismissed vide the impugned judgment.

2. It has been argued by learned counsel for the petitioner, that the order dated 14-7-2008 is without lawful authority, because there is no provision either in the West Pakistan Family Courts Act, 1964 or the rules framed thereunder, which allow or empower the Family Court to strike off the defence in a case where the written statement has not been filed by the respondent of a family suit. Further submits, that respondent No.3 was not entitled to recover the arrears of the maintenance; that as per the law laid down by this Court in the case reported as Mst. Allah Rakhi v. Tanvir Iqbal and others (2004 SCMR 1739), the list of dowry articles has not been proved in accordance with law and, therefore, respondent No.3 was not entitled to the decree for the recovery of dowry articles for such a reason. Above all, that the petitioner is a driver and has a salary of about Rs.10,000 and, therefore, the maintenance allowance granted to respondent No.3 to the tune of Rs.10,000 is excessive, exorbitant and beyond the capacity of the petitioner.

3. Heard. The petitioner had never moved to the Family Judge for seeking the setting aside of the ex parte decree against him. He also did not file any appeal against such judgment and decree, therefore, the ex parte decree dated 4-7-2008 notwithstanding the question of the striking off the petitioner's defence had attained finality. As far as the institution of cross objections is concerned, suffice it to say, that cross objections are not meant for the purposes of challenging the decree as a whole or for having a decree to set aside, but those are only relevant and meant to have a finding on a particular issue, which has been decided against a party to the lis, while supporting the decree in favour of the party filing the cross objections, but this is not the position in this case; even otherwise when confronted, learned counsel for the petitioner has conceded, that the cross objections of the petitioner in the appeal, filed by the respondent, were not maintainable. As regard other pleas, all these are relating to the merits of the judgments and decrees of the Family Court and the Appellate Court, which cannot be considered in the circumstances when the petitioner never challenged and got the ex parte decree against him set aside and that decree had attained finality. We are not persuaded to hold, that the ex parte decree dated 4-7-2008 was void, for the reason that there is no provision in the West Pakistan Family Courts Act, 1964 to strike off the defence of the petitioner, when he failed to file the written statement, thus it (decree) should be ignored; suffice it to say that the Family Court is the quasi judicial forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial, thus if a defendant of a family matter, who is duly served; and especially the one who appears and disappears and also does not file his written statement within the time allowed to him by the Court, the Court shall have the inherent power and ample power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles as are enunciated by the Civil Procedure Code. In any case, such order (striking off defence) cannot be said, treated or deemed to be void, which should be ignored as nullity in the eyes of the law as argued by the learned counsel for the petitioner. If the petitioner was aggrieved of the order, he should have either got it set aside by filing an application before the Family Court or by challenging the same in appeal, which admittedly was not so done. As far as the argument, that the remand of the matter by the appellate Court is illegal and unlawful, we are not convinced, if there is any such illegality in the appellate court order, which has been upheld in the constitutional jurisdiction of the learned High Court as well. No case for the interference in the instant jurisdiction is made out. Dismissed. Leave refused. MWA/M-30/SC Petition dismissed.