MUHAMMAD MUZAMMAL KHAN, J.--- Instant Constitutional petition assailed order dated 8.6.2004 passed by the learned Judge Family Court (respondent No. 1), whereby defence of the petitioner was closed and prayed for its adjudgment.
2. Succinctly, relevant facts are that respondent No. 2 filed a suit for recovery of dowry articles, wherein petitioner being defendant was served through citation in newspaper daily "Soort-e-Hall" and on account of his failure to appear before the Court, he was proceeded against ex parte vide order dated 19.2.2004. Petitioner on the same day, appeared before the learned Judge Family Court and moved an application for setting aside ex parte order dated 19.2.2004. It appears that on 8.5.2004 respondent No. 2 conceded to the application for setting aside the ex parte proceedings and the same were set aside subject to payment of costs of Rs. 500/-. Case was adjourned for filing of written statement on 8.6.2004. On this date, petitioner was reportedly sick and did not appear before respondent No. 1 but his counsel attempted to file written statement on his behalf without paying costs of Rs. 500/-. A request for payment of costs on the next date was made which was declined and petitioner's defence was struck. Case was adjourned for recording of ex parte evidence of respondent No. 2. Petitioner aggrieved of order dated 8.6.2004 striking down his defence, filed instant Constitutional petition with the prayer noted above. Respondent No. 2 in response to notice by this Court has appeared and is represented through her counsel.
3. I have heard the learned counsel for the parties and have examined the record, appended herewith. No doubt, order of setting aside of ex parte proceedings against the petitioner dated 19.2.2004 was conditioned by payment of costs of Rs. 500/- but respondent No. 1 acted in haste in striking of defence of the petitioner inspite of the fact that his counsel was ready with filing of written statement which, as a matter of fact, was attempted to be filed. Request of the learned counsel for the petitioner for payment of costs of Rs. 5,000/- on the next date of hearing was incorrectly turned down, though he had stated at the Bar that the petitioner was sick and in his absence he was not in a position to pay the awarded costs which shall be paid on the next date of hearing. This statement of the counsel should have been believed and by entertaining the written statement on behalf of the petitioner for which purpose the suit was fixed, payment of costs should have been deferred. This treatment should have been meted out in order to dispense justice between the parties, especially when there was nothing on the file to doubt statement of the learned counsel for the petitioner, made at the Bar. Learned counsel for respondent No. 2 could not point out any prejudice to the rights of his client had the case been adjourned or adjudicated upon, in the manner noted above. Law regarding procedural matters is firmly settled by this time and there is no cavil about the proposition that disputes among the parties should be attempted to be determined/decided on merits instead of knocking out any of them on technicalities. It goes without saying that the impugned order was not only harsh but also took away a vested right to contest the suit of respondent No. 2 and that too without any just/fair cause. Record also revealed that petitioner's defence was struck on 8.6.2004, which was the first date fixed for filing the written statement, hence in this manner as well, petitioner was not given fair opportunity to comply with the orders dated 8.5.2004.
4. For the reasons noted above, impugned order dated 8.6.2004 suffered from serious illegalities and being contrary to settled principles of law, is not sustainable. This petition is accordingly allowed and impugned order dated 8.6.2004 is declared to be void, illegal and of no legal consequence with the result that the order dated 8.5.2004 passed by respondent No. 1 stands revived whereunder the petitioner shall be granted one final opportunity of filing written statement subject to payment of the awarded costs of Rs. 500/-. There will be no order as to costs.