1. MUHAMMAD AFZAL ZULLAH, J.-This petition for special leave to appeal arises out of an order passed by the Lahore High Court at Lahore on 7-5-1979, dismissing the petitioner's revision under section 115, C. P. C, calling in question the refusal by a Family Court to set aside an ex parte order of maintenance for the minor daughter of the petitioner and its affirmation by the appellate Court in appeal under section 14 of the West Pakistan Family Courts Act, 1964 (West Pakistan Act No. XXXV of 1964).
2. According to the facts stated in the petition the maintenance case was fixed before the learned Family Judge, Gujrat on 3-9-1974. The petitioner was present but the respondent was absent. The case was adjourned to 19-10-1974. It may be mentioned here that earlier the matter was pending before another Court and it had been transferred to the learned Family Court at Gujrat by an order of the District Court, 19th and 20th were declared public holidays. On 21st of October 1974 the petitioner did not attend the Court and ex parte proceedings were then taken against him.
3. Ultimately, on 18-2-1975 an ex parte decree in favour of the respondent, was passed.
4. The petitioner did not challenge the ex parte decree before the next appellate forum, i.e. The District Court under section 14 of the Act. He filed a writ petition directly in the High Court wherein he raised several points includ--ing the legality and propriety of the ex parte proceedings, as also the merits of the ex parte decree and the conduct of the proceedings before the learned Family Court. By an elaborate order, a learned Single Judge, considered the points of law and merits and dismissed the writ petition in limine on 26-4-1976. The petitioner did not call in question the said order of the High Court any further. Instead he filed an application before the learned Family Court for setting aside the original ex parte proceedings and decree which was dismissed on 20th March, 1978. He then filed an appeal before the District Court under section 14 of the Act which was dismissed on 4-4- 1979. The decision of the learned trial Court was affirmed. 1n the appellate judgment particular reference was made to the observations o the High Court on the merits of the explanation furnished by the petitioner for his non-appearance on 21st October 1974, the date next after the Eidul-Azha holiday. Not satisfied by the aforenoted proceedings in the High Court on the writ side as also under the Act and Rules, for seeking the setting aside of the ex parte proceedings and decree; the petitioner again moved the High Court, this time under a different jurisdiction namely section 115 of the Code of Civil Procedure. A learned Single Judge by the impugned order dismissed the revision petition both on merits and on law. It has also been observed in para. 3 of the impugned order that the revision petition was not competent since the appellate order of the learned Additional District Judge had attained finality under section 14 of the Family Court Act.
5. The petitioner has himself argued his case. He has orally reiterated the points taken in the main petition. On factual side he has added that after his earlier failure to secure the custody of the minor daughter, he now again intends making application for her custody on the grounds that his divorced wife has remarried and that she had issues from ha second wed---lock. Notwithstanding the so expressed intention of the petitioner to seek a remedy, wherein if relief is granted. To him, he might be able to avoid the payment of the maintenance to his daughter in future, he has pressed this petition against the earlier final order of maintenance passed in favour of his daughter, so as to avoid payment thereunder.
6. The petitioner had while arguing his writ petition in the High Court, submitted an explanation for his non-appearance on 21st of October, 1974, which in the context of the present proceedings it is necessary to notice. He had explained that he was a Government employee and could not get have frequent enough to attend the proceedings. This, it was observed by the learned Judge who decided the writ petition (not the same who passed the impugned order) was "too fluffy to be accepted as satisfactory". He could have at least engaged a counsel. It will be noticed that the order of maintenance was not passed till 18-2-1975. Even if be was unable to appear before the Family Court on 21-10-1974, he could have at the earliest opportunity visited the Court to find out what had happened to his case. He did not care to do so. He cannot now complain that he had been condemned unheard. He had all the opportunity to defend the proceedings". The other learned Judge who dismissed the petitioner's revision petition made similar observations in so far as the merits of the case are concerned; namely, " . . . . . . . . . . . . The petitioner is himself to blame since he did not put in appearance before the Court on 21st October, 1974, soon after the Court opened after the public holidays. He conceded that according to the rules on the civil side it is not necessary to send any notice and the parties have to appear on the next opening day if the case is fixed on some date which is declared a public holiday . . . . . . . . . This petition is liable to be dismissed". The learned Judge in addition observed that this petition is also not competent since the appellate order of the learned Additional District Judge has attained finality under section 14 of the Family Courts Act".
7. Although the petitioner took the position before the High Court that ha was conscious that, according to the rules, it was necessary for the parties to appear on the next working day, if the case is fixed on a date which is declared a public holiday, yet he has taken a different plea in the petition that he was "not aware about the law regarding attending the Court on the day following an incidental holiday, and secondly, lived in a far away place in District Campbellpur". Ignoring the divergent pleas taken before the High Court, in writ petition and the revision petition, we asked the petitioner as to why he failed to enquire about the fate of the application for maintenance which was fixed for 19-10-1974 (which was declared z public holiday) for nearly l I years. According to his assertion in the petition. He became aware of the ex parte decree on examination of the file on 8- 4-1976. He gave a frank and candid reply that : (i) he was dejected on account of attitude of some Courts in not attending to his pleas including those relating to the alleged bias of the Presiding Judge/s; and (it) due to the realisation that the case against him was v about any force and that it must have been dismissed on account of what he stated, clear position of law laid down by the Supreme Court in Mst. Hamida Begun v. Sjvd Mashaf Hussain Shah (1).
8. The learned Family Judge as also the learned Additional District Judge exercising the powers of an appellate Court, as a result of proceedings conducted on the petitioner's application and after affording him enough opportunity did not find sufficient cause for setting aside the ex parse decree. The explanation offered by the petitioner for his non-appearance on 21-10-1974 and subsequent thereto for a considerable time offered before the learned lover Courts or the explanation offered in this Court cannot be considered as enough for setting aside the ex parse decree. A party cannot be permitted to prejudge the issues pending before a Court of law in his own mind and boycott the proceedings on his own assumptions. He cannot be a Judge on his own pleas. If the petitioner wanted to get relief on basis of a ruling of this Court in support of his assumption that there was no case for the grant of maintenance to the respondent, he should have (1) PLD 1958 SC (Pak.) 284 put up appearance and thus should have assisted the Court by placing his point of view before the same. The mere fact that the petitioner, as, explained by him now formed au adverse opinion about the conduct of proceedings by a Judge presiding on the Family Court, did not entitle him to disassociate himself from the proceedings. ' He had a remedy of approaching competent forum in proper proceedings for seeking the redress qua the alleged bias.
9. After hearing the petitioner at a considerable length, we agree with the learned Single Judge in the High Court that the petitioner is himself to be blamed for his non-appearance before the learned Family Judge and for the consequential ex parte proceedings and decree. Although it was possible for this Court to decide the petition on purely legal grounds including those which partly prevailed with the learned lower Courts in the two rounds of litigation, yet we considered it necessary, in view of the arguments addressed by the petitioner, to deal with the question of the refusal of the learned lower Courts to set aside the ex parte proceeding and decree. This, however, would not mean that we have not endorsed the view of the High Court that the revision was not competent nor would it imply that after agitating the questions of merits in the High Court in its B writ jurisdiction, the petitioner was at liberty to reagitate the same before the lower forums once again.
10. We also do not consider it a fit case for going into the question o the strength of the original application from the respondents side for maintenance. Firstly, in view of our decision on the question of the setting aside of the ex parte proceedings and decree it is not necessary and secondly, any comment made by this Court in this behalf might prejudice the case of the either party in the proceedings which the petitioner, according to hi statement, intents to launch afresh for securing the custody of the minor. With the above observation we find no merit in this petition and the same is dismissed.