Through this Constitutional Petition, the petitioner has called in question the vires of judgment and decree dated 26.02.2016, delivered by learned Additional District Judge, Rahim Yar Khan whereby he dismissed the petitioner's appeal on the question of limitation.
2. Precisely, necessary facts for disposal of lis in hand are that plaintiff (hereinafter called as respondent No.3) brought a suit for recovery of dower pertaining to land measuring 30 Marla with five rooms and boundary walls or in alternate Rs.50,00,000/- and recovery of maintenance allowance @ Rs.20,000/- per month as described in column Nos. 16 & 17 of the Nikah Nama annexed with the plaint. During proceedings of the case, petitioner did not file his written statement, resultantly, his right was struck off vide order dated 18-12-2013, thereafter, learned Judge Family Court decreed the suit of respondent No.3 vide ex-parte judgment dated 26.02.2014.
Through appeal petitioner assailed the ex parte judgment and decree before appellate forum which was dismissed on the point of limitation. Hence, this writ petition.
3. It has been argued by learned counsel for petitioner that due to death of real brother of petitioner's counsel, the written statement was not filed and right of petitioner for filing of written statement was struck off on 18.12.2013; that petitioner is resident of District Lodhran and could not inform his counsel due to different inquiries initiated against him on the basis of various applications moved by respondent No.3; that learned appellate Court has not considered the arguments of his counsel and dismissed the appeal on score of limitation; that it is well settled principle of law that matter should be decided on merits and no one should be condemned unheard; that amount of dower awarded by the Courts is beyond the financial status of the parties.
Lastly prayed for acceptance of this writ petition.
4. Arguments heard. Record perused.
5. It is reflected from survey of record that earlier the suit of respondent No.3 was decreed ex- parte vide judgment dated 05.05.2011. The petitioner filed an application for setting aside of ex- parte judgment and decree which was allowed subject to payment of cost of Rs.8000/-vide order dated 16.11.2013. Suit was restored and adjourned for filing of written statement on 26.11.2013. In this case, vide order dated 12.11.2013 of learned District Judge, Rahim Yar Khan, trial Court was directed to proceed the case on day to day basis and no more than two opportunities shall be granted for each proceeding. The order sheet of learned Judge Family Court pertaining to dates 29.11.2013, 02.12.2013, 04.12.2013 and 09.12.2013 are being reproduced as under: {{URDU TEXT}} Record suggests that after giving six opportunities coupled with cost and last warning, the petitioner has failed to file written statement and also to pay costs vide order dated 26.11.2013.
Keeping in view of above referred circumstances, learned Judge Family Court while relying upon case law titled "FAIZ-UL-HASSAN versus Mst. JAN SULTAN and 2 others" (2001 SCM R 1323) struck off the right of filing written statement vide order dated 18.12.2013 and decreed the suit vide ex-parte judgment dated 26.02.2014. Initially, ex-parte decree was passed on 05.05.2011 which was set aside on 26.11.2013. Inspite of numerous opportunities petitioner had failed to file written statement, resultantly, his right to file written statement was struck off as stated supra. Thereafter, impugned judgment and decree was passed on 26.02.2014. Surprisingly, after passing of impugned ex-parte judgment and decree, he remained mum and filed appeal on 28.03.2015, after delay of more than one year. It is well settled principle by now that delay of each and every day has to be explained as on account of limitation certain valuable rights accrued in favour of other party. Record negates the version of learned counsel for petitioner that due to death of real brother of counsel for the petitioner, learned Judge Family Court struck off the right of petitioner in hasty manner. No doubt, it is the case of heavy amount of dower and maintenance but a litigant should be vigilant while conducting a case. "Litigant was supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case". Reliance in this regard is placed on case law titled "ALTAF HUSSAIN and 2 others versus MUHAMMAD NAWAZ and 2 others" (2001 SCM R 405).
In the present case, facts mentioned above clearly reveals that petitioner was negligent to file his written statement as per order of the Court. The judgments and decrees passed by learned Judge Family court and appellate court do not suffer from any patent legal defect so as to call for interference by this Court in its constitutional jurisdiction. This petition being meritless is dismissed in limine.