Raja Fayya z Ahmed, C.J.--As both the Constitutional Petitions Nos, 74/2004 and 196/2004 arise out of a common judgment and decree dated 14.11.2003 passed by the Family Judge-II, Quetta in Family Suit No, 186 of 2003 and the appellate judgment decree dated 8.4.2004 passed by the learned Additional District Judge-V, Quetta, therefore, these Constitutional Petitions are decided by this common order.
2. The brief facts of the case are that in the month of September, 2003 the respondent lady instituted suit for dissolution of marriage, recovery of dower amount, maintenance allowance and for the custody of the minors against the petitioner, which came up for hearing before the Family Judge-II, Quetta, registered as Civil Suit No, 186 of 2003. It has been contended in the suit that the respondent was married to the petitioner about eight years back and out of wedlock four daughters took birth, out of whom one had died later on, but unfortunately the petitioner and his family members frequently maltreated her and she was leading a miserable life with the petitioner, who was also found to be an addict of narcotics and never cared to discharge his marital obligations and in order to extract money from her father she was treated with utmost cruelty and also at times blackmailed her father and never any maintenance allowance was provided to her by the petitioner nor she and the minors were properly maintained and looked-after, inasmuch as; despite demand the meagre amount of prompt dower amount of Rs, 2,000 was not paid to her.
3. After registration of the case summon was issued to the petitioner/defendant of the institution of the suit, which was served on the petitioner and on the date fixed in the summons i,e, 17.10.2003 he was absent and no one appeared on his behalf before the learned Family Court. Copy of the summons served on the petitioner has not been filed with the memo. of petition, however, order- sheet of even date shows that it was brought to the notice of the Court that the defendant has been confined in the Jail, accordingly; the learned Family Judge directed the learned counsel for the respondent to provide process-fee for issuance of the Murasila to the Jail Authorities for the production of the petitioner/defendant before the Court and the case was adjourned to 24.10.2003.
On the date fixed in the matter i,e, 24.10.2003, the defendant was produced from District Jail, Quetta in judicial custody before Court to whom copy of plaint was supplied and the case was adjourned to 3.11.2003 for filing written statement. For this date production warrant of the defendant was not issued to the Superintendent, District Jail, Quetta. On account of the, absence of the defendant when the case was taken up for hearing he was ordered to be proceeded ex parte. Accordingly, case was fixed for 10.11.2003 for ex parte evidence of the respondent/plaintiff. The sworn-in-affidavit of the plaintiff, her witnesses namely Abdullah and Nawab Khan were filed by way of ex parte evidence on 14.11.2003 and the learned Family Court in view of the affidavits filed before it, decreed the suit for dissolution of marriage on the ground of Khula' in favour of the respondent, who in consideration thereof offered to relinquish her claim of prompt dower amount, consequently; the suit to extent of recovery of dower amount was dismissed, whereas the past maintenance allowance from November, 2000 till the completion of Iddat period of the respondent, decree in her favour and the claim for the maintenance allowance of the minor daughters at the rate of Rs, 500 per month for each of the daughter till they each attain the age of puberty and remain in the custody of their mother was decreed in favour of the plaintiff.
4. The judgment and decree except to the extent of dissolution of marriage being not appealable, was assailed by the petitioner by filing appeal on 12.2.2004 in the Court, of learned District Judge, Quetta which was transferred on the file of learned Additional District Judge-V, Quetta being Family Appeal No, 12 of 2004. Alongwith the memo. of appeal a miscellaneous application seeking for condonation of delay in filing the appeal beyond the prescribed period of limitation was also filed on the ground that for the last five months he has been confined in the Jail and a close relative of the applicant a few days back informed to him in the jail about the decree passed by the learned Family Judge and with the assistance of his said relative the applicant preferred appeal without any further loss of time through his counsel, who on obtaining copies of the relevant documents and ex parte decree filed appeal within the prescribed period of limitation on acquiring knowledge about the same, as above said. Both these decrees i,e, ex parte decree for dissolution of marriage and the ex parte decree relating to the maintenance allowance of the respondent and her minor children have been assailed in the above said Constitutional Petitions.
5. The learned counsel for the petitioner as well as Mr. Iftikhar-ul-Haq, Advocate for the Respondent No, 1 have been heard. The learned counsel for the petitioner contended that immediately after institution of the suit by the respondent against the petitioner written complaint was filed on 21.9.2003 by the respondent with the S.H.O./P.S. Industrial Area, Quetta under Sections 107/151, Cr.P.C. pursuant to which the petitioner was arrested and committed to judicial lock-up and on 22.9.2003 in the light of the report, complaint was forwarded by the S.H.O. of the Police Station bearing No, 104/06-3 under Sections 107/151, Cr.P.C. to the Court of learned Judicial Magistrate of the area, but due to weak financial position the petitioner failed to furnish the requisite surety, as such; he remained confined in the prison even quite sometime after the filing of appeal, hence; in such circumstances as he was not in contact with any person, relative or friend outside the Jail nor any person during this period visited the Jail to see him, hence; during this period' throughout he remained precluded to defend the family suit filed against him nor he was even ordered to be produced before the Family Court for filing the written statement and had he been ordered to be produced; he must have contested the same or at least to have made statement on oath to controvert the allegation of facts, hence; the ex parte order and the decree consequently passed by the learned Family Court on the basis of ex parte evidence is a nullity in the eye of law.
Moreover; it was obligatory on the part of the learned Judge to have provided opportunity to the petitioner to defend the proceedings but such right has been denied to him, although; on the first date of hearing he was ordered to be produced before the Court from Jail but on this date, only copy of the plaint was supplied to him and being an illiterate could not on his own foresee the consequences of the launched proceedings, remained under the impression that he will again be produced before the Court, but for want of production warrant issued by the Family Judge, he was not produced before Court with the result that proceedings were drawn ex parte and eventually the impugned decree was passed. Further the learned counsel submitted that as one of the relatives of the petitioner sometime after passing of the ex parte decree came to see him in the jail and informed to him about the ex parte decree, he without any loss of time requested to him to appoint an Advocate on his behalf and to challenge the decree, who did so and appeal after obtaining copies of the impugned order was preferred but the same was dismissed on the point of limitation, although; delay in filing the appeal was condonable as on obtaining copy of the impugned decree the same as filed within the prescribed period of limitation and no time was wasted on receipt of information about the ex parte decree for obtaining copies of the relevant documents, but the learned Appellate Court without taking into consideration the material and relevant facts dismissed the appeal nor the learned Appellate Court examined the validity and legality of the order for taking ex-parte proceedings and the decree eventually passed as a result of such proceeding, hence; the impugned decrees are liable to be set aside.
6. On the other hand, the learned counsel for the respondent by controverting the arguments put forth on behalf of the petitioner submitted that since the petitioner/defendant in the suit was served with the summon issued by the Family Court and he was also produced before the Court therefore, in case he wanted to contest the suit could have easily filed his written statement through the Superintendent of the Jail but such permissible course was since not followed, being obviously not interested to defend the proceedings hence, he has been precluded to question the validity and legality of the ex parte and appellate decree passed on the basis of the ex parte evidence, which remained unrebutted and for such reason the impugned appellate judgment/decree is also unexceptionable as the delay in filing the appeal beyond the prescribed period of limitation was not condonable, however; the learned counsel conceded that till sometime after the filing of appeal the petitioner was in custody in the District Jail, Quetta in .connection with the report lodged by the respondent under Section 107, Cr.P.C.
7. The arguments put forth on behalf of the parties have been considered in the light of the documents including order-sheets of the case, maintained by the learned Family Court. It is an admitted position that summon for the first date fixed for filing of written statement i,e, 17.10.2003 was served on the defendant through the Superintendent of the Jail, but as warrant for his production was not issued therefore, obviously he could not have been present before the Court unless produced. In the ordinary course within the meaning of Section 9(1) of the Family Courts Act, 1964 the defendant in a family suit is supposed to appear in person and to file his written statement. The order-sheet of even date i,e, 17.10.2003 indicates that the learned Family Judge was conscious of the provisions of the sub-section (1) of Section 9 of the Act, therefore, directed that Murasila be issued to the Superintendent of the Jail to produce the defendant/petitioner on 24.10.2004 before the Court and pursuant to the Murasila so sent to the Superintendent of the Jail, the petitioner was produced before the learned Family Court on 24.10.2003 to whom copy of the plaint as supplied, but he was not asked as to whether he wants to file written statement and intends to contest the suit or has any defence to make nor he was allowed any opportunity to go through the plaint or was apprised of the claim, made in the suit, as such; the object and the purpose to file his written statement to provide opportunity to the party to admit, deny or partially admit the claim of the plaintiff, as the case may be; stood frustrated as the learned Court simpliciter adjourned the case for filing of written statement to 3.11.2003 on which date on account of absence of the petitioner/defendant he was ordered to be proceeded ex parte. In the instant case the petitioner could not have been marked as 'absent' for the obvious reason that such attributed act on his part cannot be termed as 'voluntary' in view of the fact that his movements were physically restricted having been confined in the Jail nor at his option he could have been produced before the Family Court on the above said date for which he was not directed to be produce nor as above said, the Court inquired from the defendant when he was produced in the Court to whom copy of plaint was supplied, if he wants to contest the same or otherwise. Secondly, it is pertinent to note that copy of the plaint was not appended with the summon issued to him initially by the Family Court otherwise there as no occasion to supply him the copy of the plaint for the second time when he was produced in the Court pursuant to the production warrant, hence, for this reason as well even without being asked by the Court, the petitioner on his own could not have and by stretch of any probability abruptly submitted in Court, expressing his intention to defend the suit or as the case may be, hence; in such eventuality it was obligatory for the Court to have not acted in a manner or taken the proceedings likely to result in depriving the defendant to answer the claim which in view of the admitted facts as per order-sheets maintained in the case referred to above was, declined to him despite of the fact that a defendant in the suit/case is entitled to be provided reasonable opportunity to answer the claim under the law. Even without directing the Superintendent of the Jail to produce the defendant before the Court on 7.11.2003 enabling him to file written statement, the learned Judge Family Court could have adopted the easiest permissible course by informing the defendant that he could file his written statement by delivering the same to the Superintendent of the Jail or to any other concerned Officer of the jail for onward transmission to the Court, but it is astonishing to note that none of the permissible course was resorted to by the learned Court and being fully conscious of the fact that physical movements of the defendant were restricted to Jail, yet; with a very narrow compass and subjective approach to the provisions of sub-section (1) of ' Section 9 of the Family Courts Act, physical non-appearance of the defendant on the date fixed for the filing the written statement was treated as 'voluntary absence' of the defendant on account of which he was ordered to be proceeded ex parte, pursuant to which ex parte evidence was produced as a consequence whereof ex parte decree was passed, which obviously resulted into defeating the object and the statutory provisions of the law by not providing fair and reasonable opportunity to the defendant to answer the claim, hence; in our considered view the order dated 7.11.2003 for taking ex parte proceedings against the defendant and the ex parte decree passed in consequence thereof is a nullity in the eye of law. As admittedly at the time of the passing of the ex parte decree the defendant was confined in jail therefore, even in the civil proceedings, if any; order, be a final or interlocutory adverse to the interest of any party concerning his rights in person or in rem has been passed and if be such person in jail has to be informed accordingly; through the Superintendent of Jail, but in this case, no such information was conveyed to the defendant in respect of the impugned decree, therefore, it cannot be assumed in absence of any other material that he had active knowledge of the ex parte decree passed against him nor even the application submitted before the Appellate Court seeking for-condonation of the delay in filing the appeal beyond the prescribed period of limitation was contested by the respondent by filing counter affidavit, therefore, the grounds urged in the application for condonation of the delay remained unrebutted, but such aspect of the case germane to the question of limitation was not attended to by the learned Appellate Court nor the validity and legality of the impugned decree based upon the proceedings ordered to be taken ex parte were taken into consideration by the appellate Court, which consequently render the impugned appellate judgment and decree as not sustainable. Moreover as hereinabove discussed the order dated 7.11.2003 passed by the Family Judge whereby the defendant was ordered to be proceeded ex parte is a nullity in the eye of law, void and without jurisdiction, consequently; the subsequent proceedings taken in the case and the ex parte decree passed in consequence thereof also are without any legal effect and this being so, makes the question of limitation pertaining to the filing of appeal as worthless and to no credence.
Thus; for the above reasons, the impugned ex parte decree passed by the learned Family Court and the learned Appellate Court being illegal, void and without jurisdiction are set aside and declared to be of no legal effect. The result is that the suit instituted by the respondent against the petitioner (Family Suit No, 186 of 2003) shall be expeditiously decided as provided by law after hearing the parties, however; subject to the final decision .by the learned Family Court, the petitioner is directed to deposit with the Family Court interim maintenance at the rate of Rs, 1,200 per month on monthly basis with effect from 1st November, 2004 for the three minor daughters of the spouses/parties presently in the custody of their mother (Respondent No, 1). Both the Constitutional petitions stand disposed of in the above terms, leaving the parties to bear their own costs.