2017 PLP 200 (YLRN)

MOHAMMAD SHERAZ KAYANI, J.

This appeal has been preferred against the judgment of Civil Judge empowered as Judge Family Court No.11 Mirpur dated 31.5.2016, whereby an application for cancellation of ex parte decree dated 25.03.2016, was dismissed.

2. The facts precisely stated are that Mst.Gazala Kousar respondent, herein, filed a suit for maintenance allowance against Saclib appellant herein, before Civil Judge empowered as Judge Family Court No.11 Mirpur on 19.12.2014 wherein it is claimed that marriage of plaintiff-respondent with defendant-appellant was solemnized on 05.04.2008. After the marriage the appellant-defendant went to England and left her in house of her parents. On 12.02.2009 out of this wedlock respondent No.2 Shabaz Saqib was born. The appellant never paid maintenance allowance to the plaintiffs-respondents and their expenses were born by grand-maternal parents. He is legally bound to pay maintenance allowance, he was earning his livelihood in foreign country and was enjoying a handsome job and can easily pay the expenses the maintenance.

3. During proceedings the trial Court summoned, the appellant herein, but despite service through proclamation in the newspaper, he did not appear before the court, upon which he was proceeded ex-parte on 12.01.2015.

4. The learned Judge Family Court Mirpur after recording the ex-parte evidence and hearing arguments of learned counsel for the appellant passed an ex-parte decree against Mohammad Saqib Aslam, appellant, vide its impugned judgment dated 25.03.2016. The appellant feeling aggrieved of the aforesaid ex-parte judgment moved an application for cancellation of the same which was dismissed vide impugned judgment dated 31.05.2016, hence, this appeal.

5. Raja Babar Kamal, the learned Counsel for the appellant reiterated the arguments taken in the appeal, and vigorously argued that the learned Judge Family Court Mirpur committed grave error while passing the ex parte decree because the appellant had no knowledge about institution of the suit. The learned Counsel further contended that the appellant was not properly served because at the time of institution of suit, he was out of the country; therefore, the ex-parte decree is liable to be set-aside. The learned Counsel finally submitted that the appeal may be accepted and the ex parte decree may be set-aside.

6. On the contrary, Waseem Hussain, the learned Counsel for the respondent, vehemently contended that the learned Judge Family Court arrived at a just and proper decision and correctly passed the ex parte decree because despite service through registered post and proclamation published in the newspaper, neither the appellant nor anybody on his behalf appeared before the Court. The learned counsel also submitted that explanation given by the appellant was not sufficient whereas he did not file the application for cancellation of ex parte decree and proceedings before trial court within prescribed period of limitation i.e. 30 days. The learned Counsel defended the impugned judgment on all counts and prayed for dismissal of the appeal.

7. In the light of arguments addressed at Bar by the learned Advocates for the parties, I have gone through the record with utmost muse.

8. A thorough study of record reveals that an ex parte decree was passed against the appellant by learned Judge Family Court, No.11 Mirpur on 25.03.2015 for recovery of maintenance allowance. He filed an application for setting aside the same on 10.02.2016 after a period of more than 10 months.

9. It will not be out of place to mention here that the limitation in order to file an application for setting aside an ex parte decree is thirty (30) days, but the appellant did not file application within the prescribed period of limitation of one month. The explanation given by the appellant in this respect was not sufficient as there was a remedy available to him to file an application under Rule 13 of the Family Court Procedure Rules, 1998 for setting aside the Ex parte decree before the trial Court. The Apex Court, on the point of limitation, held in a case reported as Naveed Farid v. Raheela Razzaq 2012 CLC 1131 as under:- "We have heard the learned counsel for the parties and perused the record. It is evident from the record that the ex parte decree was passed in favour of respondent on 21st February, 2009. An application for setting aside an ex-parte decree was filed on 1st June, 2009. Under Rule 13 of the AJ&K Family Court Procedure Rules, 1998, the limitation for filing application for setting aside an ex-parte decree is 30 days. The Family Courts Act is a special law which provides limitation under the rules. There is no concept of condonation of delay under Rule 13 of the Family Courts Procedure Rules, 1998. The Rule lays down that ex parte proceedings may, for sufficient cause, be set aside by the Court on the application made to it within 30 days of passing of decree or decision. The words used are unambiguous. The limitation for setting aside the ex-parte decree is thirty days from the date of decree and not from the date of knowledge as claimed by the Counsel for the appellant. In presence of clear provisions in the special law, the provisions of section 5 of the Limitation Act are not applicable in the proceedings before the Family Court.

10. In such state of affairs, the question of having no knowledge by the appellant about institution of the suit does not arise. So the learned court below rightly placing reliance on the judgment of the Apex Court reported as 2007 CLC 281 dismissed the application as time barred. The upshot of above discussion is that the learned Judge Family Court Mirpur exercised its discretion in a legal fashion; therefore, the impugned judgment dated 31.05.2016 does not warrant any interference by this Court. Resultantly, finding no force in this appeal, it is hereby dismissed. ZC/15/Sh.C.(AJ&K) Appeal dismissed.