1. ' IFTIKHAR HUSSAIN BUTT, J.---The above titled appeal has been directed against the decision' of learned Senior Civil Judge Kotli empowered as Judge Family Court passed on 9-8-2011 whereby an application for setting aside the ex parte decision dated 27- 3-2009 was dismissed.
2. ' The necessary facts forming the background of the instant appeal are that appellant, Muhammad Shakeel filed an application on 17-12-2009 for setting aside the decision and decree passed by Senior Civil Judge Kotli empowered as Judge Family Court on 27-3-2009. The appellant averred that the parents of respondent No,1 got registered a false case against him and he is detained in the lock up for the last one year. Meanwhile the respondent filed a sun for dissolution of her marriage in his absence and without notice and information and also obtained an ex parte decision in an arbitrary manner, which is liable to be set aside. According to the appellant he came to know about proceedings of the case on 15-12-2009, thereupon he filed an application for obtaining copies on 16-12-2009 and on the next day he presented an application for setting aside the aforesaid decision and decree.
3. ' Mst. Shaheen, respondent herein, filed his written objections and submitted that the appellant has got no cause of action and the present application has been filed after expiry of period of limitation therefore, it is not maintainable and liable to be dismissed. She further contended that she has obtained the decree for dissolution of marriage at her own and she does not want to live with a criminal.
4. ' In the light of the pleadings of the parties the learned Judge Family Court framed four issues.
5. ' The appellant appeared in the witness box and produced Aurangzeb and Muhammad Riaz as his witnesses. He also produced copies of decision and decree Exh.PA. On the other hand, Mst.
6. Shaheen. Akhtar, entered the witness box and produced F.I.R.No,305 of 2008 Exh.DA. The learned Judge Family Court after hearing both parties, dismissed the application for setting aside the impugned decision and decree vide its decision dated 9-8-2011, it is the aforesaid decision which has been assailed through the instant appeal.
7. ' Mirza Abdul Aziz Ratalvi, the learned counsel appearing on behalf of the appellant argued that when the case of dissolution of marriage was instituted against the appellant, he was detained in District Jail Kotli therefore, neither the summon was served upon him in the Jail nor he could be informed about the case through publication of a proclamation in the Newspaper. The learned counsel further contended that appellant has been asking Superintendent District Jail Kotli time and again about the case but his request was refused therefore, the case may be remanded and appellant may be provided an opportunity to appear before the Court and plead his case.
8. ' Raja Imtiaz Ahmad Khan, the learned counsel for the respondent controverted the arguments raised by the learned counsel for the appellant and submitted that the appellant was served upon through registered letter and also through a proclamation published in the Newspaper but he failed to appear before the Court to plead his case, therefore, ex parte decree was passed against him on 27-3-2009. The learned counsel pressed into service the submission that under rule 13 of The Azad Jammu Kashmir Family Courts Procedure Rules 199$, the period of limitation for setting aside the ex parte decree has been provided up to thirty days of the passing of the decree but the appellant approached the Court below after nine months of the passing of the impugned decision and decree therefore, aforesaid application was hopelessly time-barred which was rightly dismissed by the Court below. In support of the arguments reliance was placed upon PLD 2007 SC AJ&K.14.
9. ' I have given my earnest consideration to the arguments addressed at Bar and examined the record carefully.
10. It is admitted position on the record that ex parte decision and decree was passed on 27-3-2009 but the same was challenged after period of nine months. According to Rule 13 of The Azad Jammu and Kashmir Family Courts Procedure Rules 1998, the period of limitation for setting aside an ex parte decree has been provided up to thirty days of the passing of decree therefore, it is hopelessly time-barred because the period of limitation runs from the date of decree and not from the date of knowledge. The aforesaid view finds support from the case-law cited by the learned counsel for the respondent reported as Muhammad Arshad Khan v. Muhammad Kaleem Khan and 7 others (PLD 2007 SC (AJ&K) 14) wherein the following principle was enunciated at page 17 of the report:- "The aforesaid rule clearly contains limitation of 30 days from the date of decree or decision.
11. Therefore, no question about the date of knowledge arises at all. In this case the limitation shall start from the date of decree. In the instant case the decree was passed on 21-7-2000 while the application for setting aside the ex parte decree was moved on 25-6-2002 after about two years, therefore, it was hopelessly time-barred. As far the contention of the learned counsel for the appellant that an application for condonation of delay was moved and it was enjoined upon the lower Court to condone the delay on the ground, that the appellant could not gain the knowledge about the institution of suit and the decree is concerned, it has no substance for the reason that the Family Court has no jurisdiction to condone the limitation under section. 5 of the Limitation Act.
12. It would not be out of place to mention here that in the instant case the limitation for setting aside the ex parte decree was provided through a special law, i,e, the Rules of 1998. Section 13 of the said Rules clearly contains that the application should be moved within the period of 30 days."
13. The argument of the learned counsel for the appellant is not tenable that the appellant was not served upon and he could not get information about the presentation of the suit. It has been rightly held by the Court below that even after issuing registered letter and also after publishing a proclamation in the Newspaper, the appellant did not opt to defend the suit filed for dissolution of marriage by the respondent No,
1. The learned counsel for the appellant has rightly pointed out that according to statement of Muhammad Shakeel, appellant, after 5/6 months of his arrest, he was told by Ghafoor about institution of suit. Thus, even after obtaining knowledge of the institution of the suit he did not approach the Court below. In this, manner, the findings of the Court below are neither based on misreading and non-reading of the evidence nor leading to miscarriage of justice. On this account, no legal error has been found in the impugned decision which has to be maintained.
14. ' For the reasons listed above, finding no force in this appeal, it is hereby dismissed with Costs.