Malik Saeed Ahmad has filed the instant civil revision against Mst. Asma Bibi under the provisions of Section 115 C.P.0 challenging the judgment and decree of the learned Additional District Judge-I, D.I.Khan dated 21.2.2006 vide which the appeal filed by respondent-plaintiff Mst. Asma Bibi, against the order dated 08.9.2005 of learned Civil Judge-II, D.I.Khan, was accepted and decree for golden ornaments twenty tolas at the rate of the then market value total amounting to Rs, 1,54,000/- was passed in her favour.
2. Briefly narrated the facts of the case are that Mst. Asma Bibi plaintiff-respondent filed a suit for recovery of twenty tolas golden ornaments or in the alternative the price of the same which suit was initially filed before the learned Civil Judge-III, D.I.Khan which was registered as Family Suit No, 124/FC of 1998. Besides the other reliefs claimed in that suit, the instant relief for recovery of golden ornaments was turned down on the only ground that the plaintiff-respondent had admitted that the golden ornaments were handed over to her but subsequently it were snatched from her. The appeal filed by the present petitioner before the District Judge. D.I.Khan came for hearing before the learned Additional District Judge-I, D.I.Khan and was registered as F.C.A. No, 23/2000 which was dismissed but the judgment and decree qua the recovery of golden ornaments was modified and the plaintiff-respondent was directed to file a suit before the Civil Court as, according to the verdict of the appellate Court, the plaintiff-respondent had admitted that once the golden ornaments were handed over to her and subsequently snatched away by the petitioner which had become a civil liability for which the plaintiff-respondent should seek her remedy before the Civil Court.
Pursuant to the direction by the learned appellate Court, Mst. Asma Bibi respondent filed a suit for the recovery of golden ornaments or the price then prevailing in the market. Mr. Hidayatullah Khan, Civil Judge-III, D.I.Khan, vide Suit No, 292/1 of 2002 decided on 28.7.2003, passed an exparte decree in favour of the respondent for twenty tolas golden ornaments valuing Rs, 7,700/- per tola and thus, a total decree for Rs, 1,54,000/- was passed in her favour. As this was an ex-parte decree, thus, the petitioner filed an application for setting aside the same before the trial Court and the learned trial Court, after scanning of the record, came to the conclusion that the petitioner-defendant had not been duly served in the case and thus, vide order dated 08.9.2005 set-aside the ex-parte decree.
3. Mst. Asma Bibi respondent filed an appeal before the learned District Judge. D.I.Khan which came for hearing before the learned Additional District Judge-I, D.I.Khan and the learned appellate Court, vide MCA No, 50/2005 decided on 21.2.2006, after hearing learned counsel for the parties and perusing the data available on record, came to the conclusion that the petitioner had knowledge of the ex-parte decree and he moved the application for setting aside the same on 07.10.2004, thus, the application was not within the stipulated period of thirty days from the date of the decree and hence, accepted the appeal, set-aside the impugned order and restored the decree in favour of Mst. Asma Bibi respondent. The petitioner Malik Saeed Ahmad has now come to this Court challenging the said order.
4. Malik Muhammad Asad, learned counsel appearing for the petitioner submitted that the petitioner had not been duly served by the learned Civil Judge and thus, for no valid reasons, had rejected the application for setting aside the ex-parte decree. It was also submitted that the civil Judge was bereft of jurisdiction as the matter was exclusively triable by the Family Court in view of the recent amendment introduced in the West Pakistan Family Courts Act that even the personal belongings, if claimed by the wife, will be exclusively triable by he Family Court. Reliance in this respect was placed on Muhammad Tariq, Vs. Mst. Shaheen and others (PLD 2006 Peshawar 189).
6. As against this, Mr. Sultan Shehryar Khan Marwat, learned counsel appearing for the respondent submitted that the petitioner had the knowledge of ex-parte decree and he was intentionally not appearing before the Court. Firstly, the respondent filed a suit before the Family Court and on the direction of the District Appeal Court, she filed suit before the Civil, Court. It was also submitted that the application of the petitioner for setting aside the ex-parte decree was not within time and thus, the learned appellate Court has rightly accepted the appeal of the respondent and granted the impugned decree in her favour.
7. I have given my anxious consideration, to the facts of the case and considered the arguments of learned counsel for the parties.
8. At the outset it is pertinent to point out that the revision petition is time barred by two days and no cogent reason has been given for condonation of delay in CM. No, 124/2006.
9. Perusal, of the record reveals that the petitioner had entered into wedlock with the respondent and certain articles were given to her as per Nikan Nama Ex.P.W.1/1 and Kabin Nama Ex.P.W.2/2.
Unfortunately the relations between the parties became strained and the wife was constrained to file a suit before the Family Court for the recovery of the dowry articles etc but the learned appeal Court, on appeal filed by the petitioner, partially accepted the same and directed the respondent to move the Civil Court for the recovery of twenty tolas golden ornaments or its value and pursuant to this direction, she filed the suit. Perusal of the record further reveals that the petitioner had been duly served- and he was in the know of the proceedings because parties were locked into litigation for sufficiently long time. The ex-parte decree was passed on 28.7.2003 while the application forgetting aside the same was moved by the petitioner on 07.10.2004 which was not within the stipulated period of thirty days as envisaged under Article 164 of the Limitation Act. Thus, the learned appellate Court has rightly held that the ex-parte decree was passed strictly in accordance with law.
10. The second contention of the learned counsel for the petitioner is also without any substance insofar as the amendment in the schedule annexed to the West Pakistan Family Courts Act, 1964 was brought through amendment in the year 2002 and the present lis is much prior to coining into force of the said amendment. Secondly; that the suit was filed on the directions of the District appeal Court. The case law cited by learned counsel for the petitioner has got no nexus with the facts of the instant case.
11. The learned appellate Court has fully scanned the record and has arrived at correct conclusion to which no exception can be taken and the same is maintained.
12. Before parting with this judgment, it is pertinent to note that on the date of announcement of the judgment, Malik Muhammad Asad, Advocate appeared before the Court and submitted a cross- cheque dated 16.02.2009 Bearing No, 2782213 of UBL, UBL Building, Jinah Avenue, Islamabad in the name of Aasma Majeed Alizai amounting to Rs, 1,54,000/- for onward delivery to her. Thus, in a way he has admitted the correctness of the decree passed against him. The same was handed over to the Additional Registrar of this Court. for onward delivery to the respondent on demand after proper receipt to be placed on file.
13. In view of the facts and circumstances of the case narrated above, this civil revision fails both on merits as well as being time barred which is dismissed alongwith CM. No, 124/2006 for condonation of delay and C.M. No, 131/2006 for staying the execution proceedings.
14. Above are the reasons for my short user of even date.