This petition for leave to appeal has been directed against the order of the Shariat Court dated 31.01.2014, where by the application filed by the petitioner for restoration of the case was dismissed.
2. Facts emerged from this petition for leave to appeal are that the petitioner filed an appeal against the judgment and decree passed by the Senior Civil Judge/Judge Family Court, Muzaffarabad, before the Shariat Court. The same was dismissed for non-prosecution on 15.03.2013.
The petitioner moved an application for restoration of the appeal on 20.03.2013, but the learned Shariat Court dismissed the same vide impugned order dated 31.01.2014, which is the subject matter of this petition for leave to appeal.
3. Mr. Muzaffar Hussain Mughal, Advocate, the learned counsel for the petitioner argued that the order of the Shariat Court is against law and the facts of the case, therefore, the same is liable to be set aside. He further argued that the Courts have to prefer decision of the cases on merits rather on technical grounds. He contended that in support of the application for restoration of appeal sufficient cause was shown which was not taken into account by the Shariat Court while passing the impugned order. He contended that on the date fixed, the petitioner himself could not appear due to ill-health, whereas, his counsel was busy due to pre-occupation before another Court. He further contended that the Shariat Court fell in error while not taking into account that absence was not deliberate or intentional, but was due to the circumstances which were beyond the control of the petitioner.
4. On the other hand, Mr. Muhammad Hafeez Bahatti, Advocate, who entered his appearance by filing caveat strongly refuted the arguments advanced by the learned counsel for the petitioner. He submitted that the impugned order is perfect and legal, therefore, no interface is warranted under law. He further submitted that the application for restoration of appeal was filed under the provision of law, i,e,, Order IX Rule 9 of the Civil Procedure Code which is not applicable in the Family Court proceedings. He contended that the petitioner failed to advance any plausible reason for his non-appearance. He also drawn the attention of this Court towards the contents of the application for restoration of appeal in which it was alleged that the learned counsel for the petitioner was busy before the Supreme Court. Whereas, admittedly he is not an advocate of the Supreme Court.
In this way, the petitioner misstated the true facts.
5. I have heard the learned counsel for the parties at some length and also gone through the impugned order along with the contents of the application for restoration of appeal. It is spelt out from the record that the appeal titled Muhammad Rasheed u. Raja Muhammad Saeed & others, was fixed before the Shariat Court on 15.03.2013, but of the said date neither the petitioner nor his counsel f turned up, hence the case was dismissed for non-prosecution. From the perusal of application moved for restoration of appeal, it appears that the same has been filed under Order IX Rule 9, C.P.C., which is admittedly not applicable in the Family Court proceedings. The argument of the learned counsel for the petitioner that the petitioner is an a illiterate person who does not know the law, has no force as it is settled principle that ignorance of law is no excuse. When the learned counsel for the petitioner was confronted that the counsel for the petitioner is shown to have been busy in the Supreme Court, whereas, the other counsel has stated at bar that the said counsel of the petitioner is not an advocate of the Supreme Court. However, the counsel for the petitioner was unable to rebut the same, he only submitted that it was a typing error. We are not convinced with this argument, hence and the same is hereby repelled. Even otherwise, the application has been moved under Order IX Rule 9 of the C.P.C., which is not applicable in the family Court proceedings as specific Rule 12 of the Azad Jammu and Kashmir Muslim Family Laws deal with such a situation.
Departure from the said provision itself is a sufficient ground for dismissal of the application. It will be useful to reproduce the same as under: "12. Dismissal in Default:--(1) Where the plaintiff for his pleader makes default in appearing before the Court, the suit may be dismissed in default.
(2) The Court may restore a suit dismissed in a default on sufficient cause shown, on application made to it within thirty days of the dismissal in default."
After going through the above said provision it appears that on showing the sufficient cause the suit or appeal can be restored. Main ground taken by the learned counsel for the petitioner is that on the day when the case was fixed the petitioner could not appear-due to ill-health, whereas no proof of illness has been produced, i,e,, medical certificate or any other document before the Court.
Mere, taking the ground that he was ill cannot be treated as sufficient ground as sufficient ground means the reason beyond the control.
In the light of what has been discussed above, I do not find any substance in this petition for leave to appeal as no question of public importance is involved, therefore, this petition is dismissed leave is refused.