1. ORDER HAFIZ ABDUL REHMAN ANSARI, J.---The petitioner Muhammad Shafique Akhtar has filed the instant constitutional petition praying that the order, dated 30-10-2008 passed by learned Family Judge Sahiwal, order of the lower appellate Court dated 6-4-2009 and order dated 1-11-1999 of ex parte decree passed by respondent No.2 be declared illegal, void without jurisdiction and ineffective on the right of the petitioner. The petitioner has further prayed that he may be allowed to defend the suit.
2. Pithily, the facts giving rise to the instant petition are that Mst. Sajida Sarwar, respondent No.3, filed a suit for recovery of maintenance allowance which was ex parte decreed by the learned Judge Family Court on 1-11-1999. On 2-1-1998 respondent filed a suit for recovery of Rs.2,90,000 against the petitioner/ defendant which was dismissed on 22-3-2000 and in that suit the respondent did not mention regarding her suit for recovery of dower. Therefore, ex parte decree dated 1-11-1999 is collusive and has wrongly been passed by the learned Judge Family Court. The dower of respondent was fixed as Rs.80,000 which according to column No.15 of Nikah Nama has been paid in the shape of gold ornaments. Service of the petitioner was not effected. Petitioner came to know about the execution petition on 6-6-2000 and on 8-6-2000 moved an application for setting aside ex parte decree. On 15-9-2000 the application filed by the petitioner was dismissed due to non-prosecution and then petitioner moved second application on 18-9-2000.
2. On 15-3-2001 petitioner's second application was dismissed due to non-prosecution. Petitioner moved an application on 17-3-2001 for the restoration of the petitioner dated 18-9-2000. The petitioner's application was dismissed on merit on 15-2-2006 by learned Judge Family Court, Shaiwal. Aggrieved by order, dated 15-2-2006 the petitioner filed appeal in the Court of learned District Judge, Sahiwal which was entrusted to the learned Additional District Judge who on 17-6- 2006 set aside the order and remanded the case and restored the petition dated 18-9-2000.
3. Respondent No.3 constituted petition and filed reply. The learned Judge Family Court framed issues. Petitioner appeared as A. W.1 and stated that he took knowledge of execution petition and gave application for setting aside the judgment and decree. Learned Judge Family Court dismissed the application of the petitioner for setting said judgment and decree, dated 30-10- 2008. Aggrieved by the said order, the petitioner filed appeal which too was dismissed by the learned Additional District Judge, Sahiwal on 6-4-2009. Hence, and this writ petition.
4. Learned counsel for the petitioner contends that the application filed by the petitioner in the Court of Judge Family Court for setting aside the ex pane decree was within time because no sooner did the petitioner come to know about the ex parte decree, he immediately filed the application, therefore, there was no need to file an application, under section 5 of the Limitation Act. He further contends that no copy of ex parte decree was transmitted to the petitioner/defendant which was mandatory. He further contends that service of petitioner/defendant was never effected and ex parte decree has been passed collusively. Further contends that when the petitioner/defendant came to know about the ex parte decree, he submitted an application for setting aside the same but that application was dismissed by the learned Judge Family Court wrongly. Learned counsel for Me petitioner/ defendant has emphasized that law appreciates the decisions of cases on merit and not on technicalities. He has lastly prayed for acceptance of writ petition by setting aside the assailed orders.
5. Learned counsel for the respondent by controverting the contentions of learned counsel for the petitioner contends that in fact the petitioner is a cunning person and wants to heave the respondent in litigation. Further contends that the petitioner firstly moved an application on 6-6- 2000 for setting aside ex parte judgment and decree dated 1-11-1999 which was dismissed in default and instead of submitting an application to restore that application he submitted another application which was time-barred, therefore, the petition may be dismissed.
6. I have heard the arguments of learned counsel for the parties and perused the record carefully.
7. The learned Judge Family Court adopted all possible means provided under the law to effect the service of present petitioner but he did not appear in the trial Court, on account of which, suit for recovery of dower amount was ex parte decreed. Perusal of record transpires that filing of suit by the respondent was in well knowledge of the' petitioner but he intentionally did not appear in the learned trial Court and thus ex parte decree was passed against him. Record shows that the petitioner filed an application for setting aside the ex parte judgment and decree dated 1-11-1999 but the same too was dismissed due to non-prosecution. The petitioner instead of filing an application for restoration of the first petition moved another petition on 18-9-2000 for setting aside the ex parte judgment and decree dated 1-11-1999 which was hopelessly time barred. In fact, the petitioner should have filed an application for restoration of the petition for setting aside the ex parte judgment and decree, dated 1-11-1999 which was dismissed due to non-prosecution but he filed another application for setting aside the same which is not permissible under the law and the second application moved in the Court of learned Judge Family Court is patently time-barred.
8. The upshot of the above discussion leads to the conclusion that there is no illegality or irregularity in the orders assailed by the petitioner. This writ petition having no force is dismissed.