' MUHAMMAD AZAM KHAN, C.J.--- The captioned appeal with the leave of the Court is addressed against the judgment of the Shariat Court dated 26th March, 2011, whereby the appeal from the order of the Judge Family Court Kotli dated 9th July, 2010 has been dismissed.
2. The facts necessary for the disposal of instant appeal are that the plaintiff-respondent filed two suits in the Family Court Kotli on 12th A August, 2008; one for recovery of prompt dower of golden ornaments weighing 32 tolas and deferred dower amount of two million rupees, while the 'other for recovery of maintenance allowance. As the defendant-appellant did not appear before the trial Court, therefore, ex parte proceedings were ordered. After recording evidence, ex parte decree was passed in favour of Raheela Razzaq on 21st January, 2009 for dower amounting to 32 tolas golden ornaments and two million rupees in cash. A decree of Rs,6000/- for maintenance charges till the expiry of period of Iddat was also passed in favour of plaintiff-respondent. The defendant- appellant filed an application for setting aside the ex parte decree in the Family Court on 1st June, 2009 in both the cases. The Judge Family Court through consolidated order dated 9th July, 2010 dismissed both the applications declaring to have been filed beyond the period of limitation. The appellant challenged the order of Judge Family Court by way of appeal in the Shariat Court. A learned Single Judge in the Shariat Court dismissed the appeal vide impugned judgment on 26th March, 2011.
3. Mr. Khalid Rasheed Chaudhry, the learned counsel for the appellant, argued that the judgment of the Shariat Court is not maintainable. The learned Single Judge in the Shariat Court has- not considered that it is not proved from the record that the service was duly effected upon the appellant. The appellant was not in knowledge of filing of suit. Had the service been effected on the appellant, he must have appeared in the Court and defended the case because heavy amount of about five million rupees in'the shape of dower was involved in the case. The learned counsel tried to distinguish the facts of the case, titled Muhammad Arshad Khan vs. Muhammad Kaleem Khan [PLD 2007 SC(AJ&K) 14] in which this Court held that the limitation for filing the application for setting aside, an ex .Parte decree is 30 days. He argued that in the referred case 'the application for setting aside an ex parte decree was filed after the period of two years, while in the present case the application for setting aside ex parte decree has been filed after 3-1/2 months and the appellant is entitled for condonation of delay. The learned counsel further argued that if the application of Limitation Act is not expressly excluded in a special law, then the Court has power to condone the limitation while applying the provisions of the Limitation Act. In the Family Courts Act, there is no express provision for exclusion of Limitation Act. He referred to cases reported as Syed Lal hussain Shah v. Lal Muhammad and 6 others 2005 CLC 107 and Syed Tanveer Hussain Shah v.
Mst. Perveen Akhtar and 2 others [1999 MLD 216 (Lah.)]. Lastly he argued that the service upon the appellant has not been effected as laid down under Order V, Rule 15 of the Code. He referred to a case reported as Mst. Zareena Begum v. Nisar Hussain and another [1996 SCR 82].
4. While, controverting the arguments Malik Muhammad Zarait Khan, the learned counsel for the plaintiff-respondent, argued that the judgment of the Shariat Court is perfectly legal. The limitation for filing the application for setting aside all ex parte decree is thirty days. The appellant filed application after the period of 3-1/2 months. It was hopelessly time-barred. The trial Court correctly dismissed the application in the light of judgment of this Court titled. Muhammad. Arshad Khan v.
Muhammad Kaleem Khan [PLD 2007 SC (AJ&K) 14]. He argued that the Family Courts Act is a special law and the limitation for setting aside an ex parte decree is specifically provided in it.
When limitation is provided in a special law, the Limitation Act is not applicable. The judgment of the trial Court as well as the Shariat Court is perfectly legal. He requested that the appeal may be dismissed with costs.
5. We have heard the learned counsel for the parties and perused the record. It is evident from the record that the ex parte decree was passed in favour of respondent on 21st February, 2009. An application for setting aside an ex parte decree was filed on 1st June, 2009. Under Rule 13 of the AJ&K Family Court Procedure Rules, 1998, the limitation for filing application for setting aside an ex parte decree is 30 days. The Family Court Act is a special, law which provides limitation under the rules. There is no concept of condonation of delay under rule 13 of the Family Court Procedure Rules, 1998. The rule lays down that ex parte proceedings may, for sufficient cause, be Set aside by the Court on the application made to it within 30 days of passing of decree or the decision. The words used are unambiguous. The limitation for setting aside the ex parte decree is thirty days from the date of decree and not from the date of knowledge as claimed by the counsel for the appellant. In presence of clear provisions in the special law, the provisions of section 5 of the Limitation Act are not applicable in the proceedings before the Family Court. The proposition has already been resolved by this Court in Muhammad Arshad Khan's case, referred to above, wherein it was observed as under:--- "The aforesaid rule clearly contains limitation of 30 days from the date of decree or decision.
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.
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, Rules of 1998. Section 13 of the said Rules clearly contains that the application should be moved within the period of 30 days. Now the question emerges whether the limitation provided under rule 13 of the Rules of 1998 is different from the limitation provided in 1st Schedule of the Limitation Act. If it is different, then section 29 of the Limitation Act shall apply. In the instant case, as stated above, the limitation under the Rules of 1998 is 30 days while the limitation for setting aside an ex parte decree or order under Article 164 of the Limitation Act is 90 days. Therefore it could safely be said that the limitation provided in the Rules of 1998 is different from the limitation provided in 1st Schedule of the Limitation Act. Therefore section 29 of the Limitation Act shall apply to the instant case. Section 29(2) of the Limitation Act clearly contains that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed thereof by the First Schedule, the provisions of section 3 shall apply. It further contains that the provisions contained in section 4, sections 9 to 18 and section 22 shall also apply unless the application of these provisions has not been expressly excluded by such special or local law."
' It was further observed in the referred case as under: "The aforesaid provision of law clearly conveys that where a special or local law provides a different period of limitation from the period prescribed in 1st Schedule of the Limitation Act, then section 5 of the. Limitation Act shall not apply. If the period prescribed by special law is the same as that prescribed by Limitation Act, then section 29 of the Limitation Act shall not apply. This view finds support from a case reported as Sher Ali and 20 others v. The Manager P.I.D.C. Collieries Quetta and others [PLD 1973 Quetta 35]. The aforesaid report clearly contains that when the period of limitation under a special statute is different from the period prescribed in 1st Schedule of the Limitation Act, only then section 29 of the Limitation Act shall apply. Section 29(2) clearly contains the provision of Limitation Act which shall apply in case a different period of limitation is provided under special law and section 5 of the Limitation Act does not find any place in subsection (2) of section 29 of the Limitation Act. Therefore the aforesaid provision clearly contains that in a case.
Where a different period of limitation has been provided under a special law, then section 29 of the Limitation Act shall apply."
' The same view has been reiterated by this court in a case titled Saifullah Hanif v. Bushra Bano [Civil Appeal No,55 of 2010 decided on 8-6-2011], wherein it was observed as under: "8. It is celebrated principle of interpretation of statutes that if a thing is provided to be done in a particular way, it has to be done in the same way or not at all. If there are two provisions, one special and the other general, then special provision is applicable and if there is no special provision, then general provision can be applied. Rule 13 specifically deals with setting aside the ex parte decree or proceedings, therefore, in presence of this rule, Rule 22, which deals with appeals, cannot be applied. The argument of the learned counsel for the appellant that under proviso to sub-rule (1) of Rule 22,.The appellate Court has power to extend the period of limitation, is misconceived and is not applicable.
' We have also considered the argument of the counsel for the appellant that he has filed an affidavit which furnishes sufficient cause for filing an application at belated stage. The affidavit, according to the learned counsel, has not been controverted, therefore, it is deemed to be admitted. The argument has no force. Legally it is correct and this Court in a number of cases has held that if an affidavit filed by a party in proof of facts is not rebutted, the fact may be admitted as correct but the question of proving fact for establishing sufficient cause can be considered only if the application has been filed within a period of 30 days required for filing the application under Rule 13. The application is filed beyond period of 30 days, hence the appeal merits dismissal. The question of sufficient cause doesn't arise. Similarly the argument of the counsel for the appellant that proclamation was published in such a newspaper which has no circulation in U.K., cannot be considered.Because this argument is only for the purpose of proving sufficient cause, which cannot be considered on the ground that the application was filed beyond limitation."
' The law laid down by this Court in the above referred cases is clear that the application for setting aside ex parte decree has to be filed within thirty days of decree or decision. The provisions of section 5 of the Limitation Act are not applicable.
6. We have also considered the argument of the learned counsel for the appellant that there is no specific exclusion of provisions of Limitation Act in the Family Courts Act, 1998 or Procedure Rules of 1998, therefore, the provisions of Limitation Act are applicable and the limitation can be condoned.
We have considered the judgment of this. Court delivered in Lal Hussain's case, referred to above.
In the referred case the limitation was condoned by the Board of Revenue and after condoning the delay, the appeal was decided on merits. The proposition before this Court was whether the limitation was condoned by the Board of Revenue or not. In the referred case the question of exclusion of the application of provisions of the Limitation Act was not resolved. The argument is misconceived.
7. We have also perused Syed Tanveer Hussain Shah's case, referred to above. The proposition involved in the said case was regarding execution of decree of Family Court. It was held by the Court that the application for execution of decree can be filed within three years under Article 181 of the First schedule of Limitation Act, 1908. The proposition in the referred case is quite distinguishable from the case in hand because no specific limitation for execution of decree of Family Court is provided in the Family Courts Act or Rules made thereunder. When the limitation for execution of decree is not provided in the Family Courts Act or Rules, it was then held that the limitation for the purpose be the same which is provided in the Limitation Act. The instant case is regarding setting aside an ex parte decree, the limitation for which is categorically laid down as 30 days in rule 13 of the AJ&K Family Courts Procedure Rules, 1998, therefore, the question of applicability of the provisions of the Limitation Act does not arise.
8. We have also considered the argument of the learned counsel for the appellant that the service was not properly effected upon the defendant-appellant as laid down in Order V, Rule 15 of C.P.C. It is correct that C.P.C. Is not applicable in the proceedings before the Family Court, but guidance can be had from the general principles of C.P.C.. The proposition in Mst. Zareena Begum's case, referred to above, was quite different, but the law was correctly laid down that the provisions of Family Courts Act reveal that the procedure prescribed for the Family Court is more akin to the procedure followed by Civil Court rather than the Criminal Court. In the referred case the question was that while deciding the application for maintenance under section 488, Cr.P.C., whether the Family Court acts as Magistrate or Civil Court. The question of service could have been arisen if the appellant had filed application for setting aside the ex parte decree within the period of thirty days.
The application was clearly time-barred.
9. The result of above discussion is that finding no force in this appeal it is hereby dismissed with costs.