1988 PLP 747 (SCMR)

ZAFFAR HUSSAIN MIRZA. J ‑‑The appellant who is a Major in the Pakistan Army, was married to Mst. Irshadi Begum respondent No.2, on 29th October, 1976. For certain differences between the parties, details of which are not relevant for the present purpose, the appellant divorced respondent No.2 by talaq which is said to have been confirmed on 21st May, 1981. In the same year respondent No.2 filed a suit claiming arrears of maintenance against the appellant, in the Court of XXIII Civil Judge and Family Court, Karachi. The appellant appeared through his counsel and obtained time for filing written statement, but as no one appeared for him on 10th April, 1982, nor the written statement was filed, the suit was proceeded ex parte against him and was decreed by judgment, dated 24th May, 1984, for a money decree granting maintenance for a period of four years and three months at the rate of Rs.500 per month. According to the appellant in 1982, the suit was dismissed in default of appearance on the part of respondent No.2 and thereafter he had received no intimation as to its restoration. However, after some time he received information through his brother that a notice had been pasted on the outer door of the residential house in which his family members resided at Karachi, in respect of execution application.

2. Pursuant to this information the appellant came over to Karachi and learnt from his Advocate that the suit had been decreed ex parte and an application for execution had been filed. On 2nd February, 1985, the appellant submitted an application for setting aside ex parte decree which was rejected by the Family Court by its order, dated 14th March, 1985. Against this order the appellant filed an appeal which was also dismissed by the Additional District Judge, Karachi East, vide order, dated 22nd September, 1985. The appellant had relied on section 3 of the Soldiers (Litigation) Act, 1925, and had contended that as he was a serving soldier under special conditions, the ex parte decree was liable to be set aside under section 10 of the said Act, if the application is made within 90 days from the date of decree. However, the learned Additional District Judge came to the conclusion that the appellant was not serving under special conditions at the relevant time and as such his application for setting aside ex parte decree was not governed by the special provisions but was governed by the general law which prescribed a period of 30 days, therefore, the application was barred by limitation.

3. As there was no further remedy against the judgment passed in appeal, the appellant filed a constitutional petition before the Sind High Court to challenge the validity of the judgment passed by the learned Additional District Judge. In support of the constitutional petition the appellant, inter alia, reiterated his contention that he was serving in the army under special conditions, as envisaged by section 3 of the Soldiers (Litigation) Act, 1925, at the relevant time and, therefore, his application for setting aside ex parte decree was governed by the 90 days period of limitation as laid down by section 10 of the said Act, consequently, the application was well within time. This contention was repelled by the learned Judge in the High Court for reasons which may be reproduced in his own words:‑ "The words 'while he was serving under any special conditions' used in subsection (1) of the section 10 of the aforesaid Act clearly indicate that in order to attract the provisions of section 10 to the case of a soldier it must be shown that the soldier was serving under special conditions (as provided in section 3) at the time of passing of the decree or order as the case may be. The period during which the petitioner is shown to be serving under special conditions as referred to by the learned District Judge in his judgment is from August, 1982 to March, 1984. This factual aspect of the case has not been contested by the petitioner. Now as admitted by the petitioner himself in the memo of the petition the date of ex parte decree in the suit against him being 24‑5‑1984 admittedly when the decree was passed against the petitioner by the learned Family Court, the petitioner was not serving under special conditions in the Army as envisaged by section 3 of the Soldiers (Litigation) Act. No doubt subsection (2) of section 10 provides for a limitation period of ninety days for setting aside a decree or order passed against a soldier which is to be reckoned either from the date of passing of the decree or in cases where the summons or notice was not duly served in the proceedings, from the date of the knowledge, but section 10, as clearly appears from its language, would be attracted only in such cases where the soldier is serving under special conditions at the time of passing of the decree or order. In the present case since admittedly the petitioner was not serving under special conditions at the relevant time, he cannot claim the benefit of section 10 of the aforesaid Act. Consequently the provisions of Rule 13 of the Family Court Rules were applicable which provide for a period of thirty days for setting aside of an ex parte decree or proceedings. Under the circumstances it has been rightly held by the learned District Judge that the application filed by the petitioner for setting aside of the decree was time‑barred." In this view of the matter learned Single Judge of the Sind High Court dismissed the constitutional petition of the appellant by his order, dated 3rd March, 1987.

4. Being aggrieved the appellant filed a petition for leave to appeal which was granted by this Court to consider the contention "that the learned Judge in the High Court erred in taking the view that a period of limitation was prescribed for making an application for setting aside an ex parte judgment of a Family Court Judge when the provisions of section 9(6) of the Family Courts Act. 1964, are clearly to the effect that an application for setting aside an ex parte decree can be made within 'reasonable time' and no fixed time limitation has been prescribed".

5. We have heard the appellant who has appeared in person and Mrs. Rashida Patel, learned counsel for the respondent. The appellant has argued that after the restoration of the suit he was required to be served with notice but the same was not duly served and in this connection he has once again invoked the provisions of the Soldiers (Litigation) Act, 1925, and according to him the application for setting aside the ex parte decree was within time computed from the date of the knowledge. On the other hand it was argued on behalf of the respondent that the appellant is deemed to have had notice of the ex parte decree from 25th October, 1984, when wakalatnama on his behalf was filed in the execution proceedings. Since the application for setting aside ex parte decree was filed with a further delay on 2nd February, 1985, according to the learned counsel even if the 90 days period is applied, the application was barred by limitation. The appellant repudiated this argument by submitting that the wakalatnama earlier filed by the Advocate was without his authority and does not bear his signature. However, we feel that it is not necessary to go into this controversy in this appeal, for it can be disposed of on a short point of law already noted in the leave granting order.

6. It will be noticed from the passage of the impugned judgment reproduced above that the learned Additional District Judge as well as the learned Judge in the High Court took the view that the application for setting aside ex parte decree passed by the Family Court was to be made within 30 days of the passing of the decree as provided by rule 13 of the West Pakistan Family Courts Rules, 1965, which reads as follows:‑ "Ex parte decree or proceedings may, for sufficient cause shown, be set aside by the Court on application made to it within 30 days of the passing of the decree or decision." However, subsection (6) of section 9 of the Family Courts Act, 1964, provides as under:‑ "In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within reasonable time of the passing thereof to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, on such terms as to cost as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also." The plain reading of the aforesaid provisions makes it clear that the statute provided no time limitation for making application for setting aside an ex parte decree passed by a Family Court. The point to be noted is that this is not a case where the statute is silent with regard to the period of limitation for making an application of this nature, but a positive provision has been made permitting the making of such application "within reasonable time of the passing" of the ex parte decree. The question is whether in the face of such statutory provisions, the rule making authority could frame a rule in any way limiting the period of limitation to a fixed period. The rule making power has been vested in the Government under section 26 of the Family Courts Act for making rules to carry into effect the provisions of the Act. When the Act itself provides for making the application within reasonable time, apparently fixing a period of limitation for general application to all cases cannot be in consonance with the provisions of the Act and cannot be said to carry into effect the provisions of the Act. See Ch. Altaf Hussain v. The Chief Settlement Commissioner and others P L D 1965 S C

68. The reason is that the question of what constitutes reasonable time would obviously depend upon the facts of each particular case and it will not be possible to lay down a rule of thumb that in all cases the fixed period of 30 days would be reasonable time. Subsection (2) of section 26 clearly expresses the legislative intent that the rules made thereunder shall not be inconsistent with the provisions of the Act. It is well‑established that the subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute. Clearly, therefore, rule 13 is ultra vires the power of the rule‑making authority. The learned additional District Judge and the High Court did not examine the plea of the appellant on merits and disposed of the case on the ground that his application was barred by limitation, which vas clearly against the express provisions of the statute. The order of the Additional District Judge was, therefore, passed in excess of jurisdiction and without lawful authority and was, therefore, liable to be declared as such. It seems that this aspect of the matter was not brought to notice of the ,learned Judge in the High Court.

7. In the result this appeal is allowed and the judgment of the High Court is set aside. The consequence is that the constitutional petition of the appellant is hereby accepted and the judgment of the learned Additional District Judge (Karachi East) dated 22nd September, 1985, is quashed. Since the question whether the application was made within reasonable time of the passing of the ex parte decree and whether the appellant was duly served or was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, was not considered, the case shall be remanded to the learned Additional District Judge for fresh decision of the appellant's appeal in the light of this judgment and according to law, within the period of three months from the date of receipt of the copy of this judgment and records of the case. In the circumstances of the case there will be no order as to costs. M.B.A./M‑368 Appeal allowed.