1. ' Suit for recovery of maintenance, maternity charges as well as articles of dowry was instituted by the Respondents No, 3 to 5 against the present petitioner in which he was proceeded against ex- parte after publication of proclamation in the newspaper. After recording ex-parte evidence, learned Judge Family Court granted decree in favour of Respondents No, 3 to 5 on 2nd December, 2014.
2. 2.Petitioner made an application for setting aside ex-parte decree drawn on 2nd December, 2014 contending that neither he got any knowledge regarding institution and pendency of the suit nor was served.
3. ' It was further submitted in the petition that factum of passage of decree came to his knowledge when he went to Burewala Kachahry for his domestic assignment.
3. Though the petition was contested by the Respondents No, 3 to 5 but ultimately learned counsel representing the Respondents No, 3 to 5 as per instruction of Respondent No, 3 made statement that respondents got no objection to set aside the ex-parte decree subject to payment of interim maintenance allowance to the Respondents No, 4 &5.
4. 4.In view of the offer made on behalf of Respondents No, 3 to 5, learned Judge Family Court at Burewala through order dated 5th May, 2015 set aside the ex-parte judgment and decree dated 2nd December, 2014, directing the petitioner to pay interim maintenance allowance @ Rs, 1200/- to minor children, simultaneously, requiring the petitioner to pay Rs, 36000/- as arrears of interim maintenance allowance.
5. ' Thought the petitioner was granted time to pay the arrears of interim maintenance but said order was not acted upon and on 24th June, 2015, petitioner neither appeared before the learned Family Court nor paid arrears of the interim maintenance allowance resulting in recalling of the order dated 5th May, 2015.
6. 5.Aggrieved by the said order, petitioner preferred an appeal not only calling in question the legality of the order dated 24th June, 2015 but also ex-parte judgment and decree drawn in favour of Respondents No, 3 to 5 on 2nd December, 2014 but it remained an exercise in futility in view of dismissal of appeal through judgment dated 13th August, 2015.
7. 6.Aggrieved by the order and judgment referred to, petitioner has invoked the constitutional jurisdiction of this Court contending that order and judgment assailed are legally not sustainable.
8. ' In order to substantiate the contention, it was submitted that ex-parte decree was granted in favour of Respondents No, 3 to 5 not only with reference to claim of maintenance but also maternity charges as well as articles of dowry and the decree to the extent of later mentioned claims could not be clubbed with payment of interim maintenance allowance.
9. ' In order to show bonafide of the petitioner, it was contended that petitioner has deposited an amount of Rs, 52,000/- before the learned executing Court and has also submitted surety bond to the tune of Rs, 4-lac in compliance of order of this Court.
10. ' Contended that order and judgment passed by both the learned Courts below are legally not sustainable.
11. 7.On the other hand, learned counsel representing the Respondents No, 3 to 5 while making reference to the different interim orders contended that absence of the petitioner on 24th June, 2015 was intentional with the sole object to defeat the satisfaction of decree and as such no exception can be taken to the order dated 24h June, 2015 and judgment passed by learned Additional District Judge Burewal a.
12. 8.However, it has been admitted that petitioner has deposited Rs, 52,000/- and has also submitted surety bond in a sum of Rs, 4-lac before the learned executing Court in compliance of the order of this Court made on 13th October, 2015.
13. 9.Conscious consideration has been given to the arguments advanced by the learned counsel for the petitioner and Respondents No, 3 to 5.
10. Respondents No, 3 to 5 instituted suit for recovery of maintenance, articles of dowry as well as maternity charges in which ex-parte decree was granted. Petitioner made an application for setting aside the ex-parte decree for the reasons mentioned in the said application.
14. 11.Perusal of the interim orders sheet reveals that counsel for the Respondents No, 3 to 5 having instruction by Respondent No, 3 cited as Respondent No, 1 in the application for setting aside the exparte decree made statement that he got no objection to the acceptance of the application for setting aside the ex-parte judgment and decree subject to payment of interim maintenance allowance to the minors i.e, Respondents No, 4 & 5 and in pursuance of the statement made by the learned counsel representing the Respondents No, 3 to 5, learned Judge Family Court through order dated 5th May, 2015 made conditional order regarding acceptance of the application for setting aside the ex-parte decree simultaneously requiring the petitioner to pay Rs, 36000/- as arrears of interim maintenance allowance.
15. 12.It is also not disputed that petitioner failed to act upon the order passed by the learned Judge Family Court dated 5th May, 2015.
16. 13.Though order dated 5th May, 2015 is nowhere suggestive that offer made by the learned counsel representing the Respondents No, 3 to 5 was accepted by the petitioner but nevertheless since no objection was raised when the order was made, therefore, it becomes crystal clear that offer was accepted by the petitioner by his conduct.
17. ' However, this fact by itself is not sufficient to non-suit the petitioner for the simple reason that imposition of condition though could have been attached in order to set aside the decree to the extent of grant of claim of maintenance allowance to Respondents No, 4 & 5 but nevertheless said condition could not have been imposed by the learned Judge Family Court with reference to claim of articles of dowry as well as maternity charges.
18. ' The fact was also ignored by the learned Additional District Judge while dismissing the appeal.
19. 14.In view of the matter, while accepting the writ petition, order dated 24' June, 2015 as well as judgment of the learned Additional District Judge Burewala dated 13th August 2015 are hereby set aside and application of the petitioner for setting aside the ex-parte judgment and decree dated 2" December, 2014 shall be deemed to be pending before the learned Judge Family Court, Burewala.
20. 15 Since paternity of Respondents No, 4 & 5 is not the moot point, therefore, petitioner shall pay interim maintenance allowance to both the minors i.e, Respondents No, 4 & 5 @ Rs, 2000/- (per respondent) before the learned Judge Family Court w.e.f, April, 2016 before 15th of each calendar month regularly and onwards till the decision of application for setting aside the ex-parte judgment and decree dated , 2nd December, 2014. The arrangement has been admitted by the learned counsel for the petitioner.
16. In case of failure on the part of the petitioner to pay the within the domain of the learned Judge Family Court to strike off the interim, maintenance allowance fixed by this Court, it will be well defence of the petitioner.
21. 17.Application for setting aside the ex-parte judgment and decree was dismissed by the Court of Mirza Muhammad Azam, learned Judge Family Court Burewala in the year 2015. Name and particulars of the said learned presiding Officer are not known and as such application for setting aside the ex-parte judgment and decree titled "Muhammad Faisal v. Zarina Kausar etc." filed by the petitioner on 23rd December, 2014 is entrusted to the Senior most learned Civil Judge having the power of Judge Family Court at Burewala who after requisitioning the record of the application for setting aside the exparte decree as well as record of the suit for the recovery of maintenance allowance, maternity charges as well as articles of dowry titled "Zarina Kausar etc. v. Muhammad Faisal" decided on 2nd February, 2014 shall decide the same within a period of one month even has to proceed on day to day base.
22. 18 Copy of this order be sent through fax today to the learned District & Sessions Judge, Vehari for its onward transmission to the Court concerned for information and compliance..
23. 19 Compliance report shall be sent to the Deputy Registrar (Judi) of this Bench for perusal of the Court.
24. 20 No order as to costs.