2020 PLP 261 (YLR)

SARDAR MUHAMMAD EJAZ KHAN, J.

The above captioned appeal has been directed against the judgment of Judge Family Court, Muzaffarabad, dated 30.12.2017, whereby, an application for setting-aside ex-parte judgment and decree dated 21.04.2016 was dismissed.

2. Brief facts of the case are that plaintiffs-respondents, herein, filed a suit for maintenance allowance and recovery of dower in the Court of Civil Judge/Judge Family Court No.III, Muzaffarabad, against defendant-appellant, herein, on 22.04.2016. The learned trial Court while consolidating both the cases decreed the suit of maintenance allowance and dismissed the suit for recovery of dower for want of proof vide impugned judgment and decrees dated 21.11.2016. It has been contended that the appellant was informed by somebody with regard to ex-parte decrees dated 21.11.2016 and warrant of arrest in wedding ceremony at Peelo-Pagla-Rajpothi, and when the matter came into the knowledge of the appellant, then he applied for obtaining certified copies of the judgment and decrees along-with other relevant record. It has been stated that after obtaining the said record, appellant promptly approached the competent Court of law for cancellation of said warrant and filed application for setting-aside ex-parte decree dated 21.11.2016 stating therein that plaintiff-respondent No.1, herein, wrongly mentioned the address of the appellant in the title of suit so that a service upon the appellant could not be effected and the appellant was summoned through substituted service i.e. proclamation, which is not a national newspaper of Azad Jammu and Kashmir and is not well reputed daily news, hence, all the proceedings initiated against appellant in hasty manner, therefore, the ex-parte judgment and decree may be set-aside. The learned Court below after hearing the parties dismissed the application on the point of limitation vide impugned judgment dated 30.12.2017, hence, this appeal.

3. Raja Asif Bashir, the learned counsel for appellant, more or less, reiterated the grounds of appeal and argued that plaintiff-respondent No.1, is clever lady who deliberately mentioned the address of the appellant in the memorandum of plaints so that she may obtain ex-parte decree. The learned counsel emphasized that one hand the plaintiff-respondent No.1 herself admitted in the suit that she after 'Rukhsat' went to Kharian with the appellant but on the other hand she mentioned wrong address of the appellant i.e. Mohallah Akarghar Tehsil and District Rawalpindi, presently at Rajpothi, near Attana Danna Kacheeli "Wandering Goatherd" ( ). The learned counsel pressed into service that plaintiff-respondent No.1 has knowledge with regard to the original address of the appellant according to his C.N.I.C. i.e. Kotli Kahori, Muzaffarabad, but the learned Court below failed to consider this important aspect of the matter. The learned counsel added that the proclamation was issued in a newspaper 'Daily Ausaf', which is not circulated in all parts of Azad Jammu and Kashmir and the proclamation and A.D. post clearly show that the address of the appellant was deliberately given as "Wandering Goatherd" ( ), which is not a permanent address of the appellant and how service upon him could be effected. The learned counsel finally prayed for acceptance of appeal.

4. Mr. Muhammad Aslam Raza, the learned counsel for respondents while controverting the arguments of the learned counsel for appellant defended the impugned order on all counts and prayed for dismissal of appeal.

5. I have heard the learned counsel for the parties and gone through the record of the case with my utmost care.

6. It is to be seen as to whether the impugned judgment passed by the learned Additional District Judge/Judge Family Court, Muzaffarabad, on 30.12.2017 is in accordance with law or not? It is relevant to mention here that under the Azad Jammu and Kashmir Family Courts Act, 1993 the following mode has been defined for intimation to the defendant:- "Intimation to defendants:

(1) Within three days of the presentation of the plaint to a Family Court the plaintiff shall send to each defendant by registered post, a copy of the plaint together with a copy of the schedule as mentioned in section 7(2) and copies of all documents mentioned in Section 7(3) (2) Save as may otherwise be prescribed, the plaintiff shall also, within the time specified in subsection (1), cause notice to the published in newspapers approved by the Family Court of the fact of his having filed the plaint."

7. In view of above quoted provisions of law, the learned trial Court vide order dated 22.04.2016 while adopting due process in both the suits directed the plaintiffs-respondents, herein, to deposit the requisite fee for summoning defendant-appellant, herein, through A.D. post and proclamation within three days and the case was posted to 07.05.2016 and on the said date the Court has passed the following order:-

8. It appears from bare reading of the above order that it has been mentioned that the address of defendant-appellant, herein, mentioned in the title of suits was incorrect and the learned counsel for the plaintiffs-respondents, herein, was directed to submit fresh address of the aforesaid defendant-appellant and on very next date i.e. 20.05.2015 last opportunity was provided to the learned counsel for plaintiff-respondents, herein, for submission of fresh address of defendant-appellant, herein. After availing last opportunity the needful was not done and trial Court, vide order dated 23.05.2016 again directed for submission of fresh address so that a service upon the defendant-appellant, herein, may be procured and the case was fixed for the purpose on 07.06.2016. On the said date the learned counsel for plaintiff-respondents, herein, filed two separate applications one for struck off the words "Wandering Goatherd" ( ) from para No.1 of the suits and second for furnishing fresh address of defendant-appellant i.e. "R/o District Gilgit, Tehsil Astor, Police Station Mini Marg" and it has also been stated in the said application that defendant-appellant, herein, is "Wandering Goatherd" ( ) who is migrating one place to another during summer season and now it came into the knowledge of plaintiff-respondents, herein, that he migrated to Gilgit side and his service can be effected through Police Station, Mini Marg, therefore, defendant-appellant, herein, may be summoned on the given address in both the suits. In such like situation, the learned trial Court was not competent to proceed ex-parte against the defendant-appellant, herein, vide order dated 07.06.2016. For proper appreciation of the matter, it is relevant to reproduce the said order, which reads as under:-

9. At the very outset, when this matter came into the knowledge of the Court below with regard to submission of fresh address of defendant-appellant, herein, which is so apparent on the surface of file, therefore, it was enjoined upon the learned trial Court to summon the defendant-appellant on the given address in accordance with the relevant provisions of law whereas the learned trial Court allowed the application for struck off the words "Wandering Goatherd" ( ) from para No.1 of the plaints and the application for submission of fresh address of defendant-appellant, herein, was wrongly dismissed as withdrawn on the statement of plaintiff-respondent No.1, herein, that a service upon the defendant-appellant, herein, was effected through proclamation previously, therefore, he may be proceeded ex-parte. As the Court was fully aware with the fact that fresh address of defendant-appellant, herein, was submitted then he could have been summoned on the address mentioned above, hence, the ex-parte proceedings were wrongly initiated against the defendant-appellant, herein. My this view is fortified with the proposition resolved by the apex Court in a case titled Syed Mehar Ali Shah v. Syeda Nudrat Bibi and another [2018 SCR 9], wherein, it has been opined as under:- "According to the celebrated principle of law the question of limitation is not a pure question of law rather it is a mixed question of facts and law which requires proof. So far as the contention of the learned counsel for the respondent that the limitation starts running from the date of judgment and decree is concerned, it appears to be misconceived. The provisions of section 18 of the Limitation Act, 1908 are not excluded to the proceeding before the Family Court rather the same are applicable. In this context, in a full Court judgment reported as Muhammad Iqbal Khan v. Parveen Shakir [2013 SCR 85] this Court held that if a particular case is covered by section 18 of the Limitation Act based on fraud and a party successfully proves that he was precluded from filing application, appeal, suit by means of fraud being kept away from the knowledge of such right, the Court can consider that what is effect of such fraud on application, appeal or suit."

10. Admittedly, the defendant-appellant, herein, was not summoned properly, hence, the ex-parte proceedings initiated against him in both the suits vide order dated 07.06.2016 are against law because it seems that the plaintiff-respondent No.1, herein, fully aware about the presence of defendant-appellant, herein, at Tehsil Astor, District Gilgit and deliberately had not pressed the application for submission of fresh address of defendant-appellant, herein. The learned trial Court also failed to follow the statutory provisions of law while initiating ex-parte proceedings against defendant-appellant, herein, vide order dated 07.06.2016. In this backdrop, the Court cannot close the eye with the fact which is so apparent on the face of record. The law is well settled that nobody should be condemned unheard and before passing any adverse order without adopting due procedure, the same is against the maxim of natural justice and audi-alteram-partem which is one of the most cherished and sacrosanct principles of law.

11. So when, admittedly, the defendant-appellant, herein, was not properly summoned which shows that plaintiff-respondent No.1, herein, deliberately did not want to summon on the fresh address. The learned trial Court without scrutinizing the record and considering the fact of the matter, wrongly concluded that the aforesaid application was filed beyond the prescribed period of limitation as provided in Rule 13 of the Azad Jammu and Kashmir Family Court Procedure Rules, 1998. So, in such like circumstances, I am of the considered view that the learned trial Court while passing the impugned order dated 30.12.2017 committed grave illegality and infirmity, which is against the norms of natural justice and right of hearing is a recognized principle of law and such right cannot be snatched on the will of any litigant party just to protect its ill-gotten-gains.

12. The outcome of above foregoing reasons is that while setting-aside the impugned judgment dated 30.12.2017, the application for setting-aside ex-parte decree dated 21.11.2016 is allowed and the case is remanded back to the trial Court for decision afresh on merits within a period of three months from the date of receipt of this judgment in accordance with law. The appeal stands accepted with the observations as indicated herein-above. ZC/5/HC(AJ&K) Case remanded.