' MUHAMMAD NAWAZ BHATTI, J.---This writ petition is directed against the judgment dated 27-7- 2004 passed by the learned Additional District Judge, Sahiwal, whereby the application filed by the petitioner for setting aside the ex parte judgment and decree dated 19-4-2000 was dismissed.
2. Brief facts leading to this writ petition are that Mst. Rukhsana Kausar respondent No.2 was married to the petitioner Ghulam Rasool and at the time of her marriage, she was given dowry articles valuing Rs.1,42,400. On 14-8-1995 the petitioner divorced the respondent by snatching dowry articles. Thus the respondent filed a suit for recovery of dowry articles which was dismissed by the learned Judge Family Court Sahiwal on 3-6-1999. Feeling aggrieved by the order date 3-6- 1999, respondent No.2 filed an appeal before the learned Additional District Judge, Sahiwal, which was accepted on 19-2-2000 and the petitioner was proceeded ex parte. The petitioner after getting the knowledge of the impugned decree dated 19-4-2000 passed by the learned Additional District Judge, Sahiwal, filed an application for setting aside the same, which was dismissed by the learned Additional District Judge, Sahiwal vide his judgment dated 27-7-2004, on the ground that the application was time-barred. Hence this writ petition.
3. It is contended by learned counsel for the petitioner that the learned Additional District Judge before proceeding ex parte against the petitioner had not complied with the mandatory requirements of the law as provided in section 8 of the Family Courts Act, 1964; that the learned Additional District Judge without adverting to the provision of section 9(6) of the Family Courts Act, 1964, had held the application of the petitioner for setting aside the ex parte decree as time-barred and that the valuable rights of the petitioner are attached and the same required that the appeal of the petitioner may be decided on merits. In support of his contentions, learned counsel for the petitioners has relied upon Manager, Jammu and Kashmr, State Property in Pakistan versus Khuda Yar and another (PLD 1975 SC 678), Muhammad Afzal v. Small Business Finance Corporation and 4 others (1997 CLC 1080), Mst. Khurshid Begum v. Majeed Ahmad Khan through Legal Heirs and others (2001 YLR 2612), Metropolitan Corporation of Lahore through Administrator and another v. Lease Pak Limited (2001 CLC 200) and Pakistan Burmah Shell Ltd. v. Tariq Brothers (1997 CLC 761).
4. On the other hand, learned counsel for the respondent has supported the impugned decree and has submitted that the petitioner deliberately had not appeared and contested the suit though having full knowledge that same had been filed against him and had deliberately refuse to receive the summons from the Process Server and thereafter the publication in the newspaper as mode of service was sufficient for he requirement of service on petitioner and as the same had been fully done in this case therefore, there was no justification to accept the application which even otherwise suffered from inordinate delay of about eleven months. In this behalf, reliance was placed upon Messers Ahmad Autos and another v. Allied Bank of Pakistan Limited (PLD 1990 SC 497) and Mirza Shahid Baig v. Mst. Lubna Riaz and 2 others (2004 CLC 1545).
5. I have heard learned counsel for he parties and gone through the impugned decree as well as the record.
5-A. In this writ petition, two points are to be determined.
(1) Whether the service was effected on the petitioner or not?
(2) Whether the application for setting aside the ex parte decree was time-barred or not?
' First of all it is necessary to reproduce section 8 of the Family Courts Act 1964, which is as under:-- "Intimation to defendant.---(1)
' Where a plaint is presented to a Family Court it:--
(a) may fix a date ordinarily of not more than thirty days for the appearance of the defendant;
(b) shall issue summons to the defendant to appear on a date specified therein;
(c) shall within three days of the presentation of the plaint, send:--
(i) to each defendant, by registered post, acknowledgement due, a notice of the suit, together with a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7 and copies of the documents and a list of documents referred to in subsection (3) of the said section; and
(ii) to the Chairman of the Union Council within whose jurisdiction the defendant or defendants, as the case may be, reside, and where the defendants reside within the jurisdiction of difference Union Councils, to the Chairman of every such Union Council, a notice of the plaint having been presented.
(2) Every summons issued under clause (b) of subsection (1) shall be accompanied by a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7, and copies of the documents and list of documents referred to in subsection (3) of the, said section.
(3) On receipt of the notice under clause (c) of subsection (1), the Chairman shall display the notice on the Notice Board of the Union Council for a period of seven consecutive days, and shall, as soon as may be, after the expiry of the said period, inform the Family Court of the notice having been so displayed.
(4) Service of the plaint and its accompaniments in the manner provided in clause (b) or clause
(c) or subsection (1) shall be deemed to be due service of the plaint upon the dependant.
(5) Every notice and its accompaniments under clause (c) of subsection (1) shall be served at the expense of the plaintiff. The postal charges for such service shall be deposited by the plaintiff at the time of filing the plaint.
(6) Summons issued under clause (b) of subsection (1) shall be served in the manner provided in the Code of Civil Procedure, 1908 Order V, rules 9, 10, 11, 16, 17, 18, 19, 21, 23, 24, 26, 27, 28, and 29. The cost of summons shall be assessed and paid as for summons issued under the Code of Civil Procedure, 1908.
' Explanation.---For the purposes of this section, the expression "Union Council" means a Union Council, Town Committee or Union Committee constituted under section 57 of the Electoral College Act, 1964 (IV of 1964)".
It appears from a bare reading of the said section that service in family matters is very necessary.
In this case, the petitioner was neither served at learned lower Court nor at learned appellate Court.
Further the proclamation was published for the service of the petitioner in Daily `Japan Numa'
Lahore which is neither widely published nor reached and read in Chak No.97/6-R Tehsil and District Sahiwal where the petitioner resides. Furthermore no summons for the service of the petitioner was sent to the Chairman of the Union Council where he resides. Therefore, it is held that the learned Additional District Judge before proceeding ex parte against the petitioner had not complied with the mandatory requirements of the law as provided in section 8 of the Family Courts Act 1964.
6. So far as the question of delay in filing the application for setting aside the ex parte decree, it is necessary to reproduce section 9(6) of the Family Courts Act, 1964, which is as under:- ' SECTION 9(6): "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, 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 defendant also."
' According to the said section, application can be filed within reasonable time of passing of ex parte decree. In this case, ex parte order was passed on 18-2-2000 and the petitioner came to know about the said order on 23-2-2001 and thereafter he filed an application for setting it aside on 13-3-2001. Therefore, it is held that the application for setting aside the ex - parte decree was filed within a reasonable time. Even otherwise it has been observed in the authorities cited by learned counsel for the petitioner that lis should not be knocked out on technical grounds but endeavours of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non-suited on mere technical grounds.
7. Relying upon the authorities cited by learned counsel for the petitioner as well as sections 8 and 9(6) of the Family Courts Act, 1964, I am of the considered view that the learned Additional District Judge was wrong in proceeding ex parte against the petitioner. Therefore, this writ petition is accepted, the impugned order dated 27-7-2004 is set aside and the application of the petitioner for setting aside the judgment and decree dated 19-4-2000 is allowed. The case is remanded to the learned Additional District Judge, Sahiwal who is directed to decide the appeal filed by respondent No.2 Mst. Rukhsana Kausar on merits.