MOHAMMAD AZAM KHAN, C.J.--- The captioned appeal with the leave of the Court arises out of judgment of the Shariat Court dated 23rd May, 2012, whereby Civil Appeal No.96/2011 has been dismissed.
2. Facts necessary for the disposal of instant appeal are that the plaintiff-respondent filed an application for custody of minor children in the Family Court Bhimber on 16th April, 2009. The defendant, appellant herein, contested the application. The plaintiff-respondent herein, produced evidence. The defendant was provided several opportunities for producing evidence, but she failed.
She ultimately absented herself from the Court, whereupon ex parte decree was passed in favour of the plaintiff-respondent on 22nd September, 2010. The appellant filed an application before the Family Court for setting aside the ex parte decree on 21st February, 2011 after a period of more than five months. The Family Court dismissed the application being time barred. The appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir. A learned single Judge in the Shariat Court dismissed the appeal vide judgment under challenge.
3.Sh. Masood Iqbal, the learned counsel for the appellant, argued that the judgment of the Shariat Court is against the law and facts. The learned counsel argued that the case was pending in the Family Court Bhimber, which was later on transferred to Family Court Barnala. The Family Court Barnala without summoning the appellant proceeded ex parte and passed ex parte decree. He further argued that the Family Court has incorrectly held that the limitation for setting aside an ex parte decree is 30 days under Rule 13 of the Family Courts Procedure Rules. The Family Court for the purpose of Guardians and Wards Act is a District Court and under the provisions of the aforesaid Act, the procedure prescribed in the Family Courts Act or Rules is not applicable to proceedings under the Guardian and Wards Act. The judgment of the Shariat Court is therefore bad in law.
4.The respondent appeared in person and submitted that the judgment of the Shariat Court be kept intact.
5.We have heard the learned counsel for the appellant as well as the respondent and perused the record. It is correct that the case was initially filed in the Family Court Bhimber, which was later on transferred to the Family Court Barnala. A perusal of order dated 24th May, 2010 reveals that the case was transferred from the Court of Civil Judge Bhimber with the powers of Family Court to the Court of Civil Judge Barnala with the powers of Family Judge in presence of counsel for the parties and the parties were directed to appear in the Family Court Barnala on 31st May, 2010. The order reveals that the counsel for the plaintiff opposed the transfer of case, but the counsel for the defendant insisted that the case be heard at Barnala on the ground that the defendant, appellant herein, is resident of the village which is in the territorial jurisdiction of Civil Judge Barnala. When the case is transferred from one Court to another in presence of counsel for the parties, no fresh notice is required for summoning the parties. Moreover this ground was not taken in the application. The appellant averred in the application that she fell ill and could not appear in the Court.
6.Under Rule 13 of the AJ&K Family Courts Procedure Rules, 1998, ex parte decree and ex parte proceedings may, for sufficient cause shown, be set aside the Court on the application made to it within thirty days of passing of the decree or decision. The ex parte decree was passed on 29th September, 2010 and the application for setting aside the ex parte decree was presented in the Court on 1st March, 2011, after a period of 5 months and 7 days, which is clearly beyond the period of limitation. The provisions of Rule 13 of the AJ&K Family Courts Procedure Rules, 1998, are mandatory.
This Court in a case titled Navid Farid v. Raheela Razzaq [Civil Appeal No.46 of 2011 decided on 27.1.2012] has observed as under:--- "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 Courts Procedure Rules, 1998 the limitation provided for filing application for setting aside an ex parte decree is 30 days. The proposition has already been resolved by this Court in Muhammad Arshad Khan's case, referred to above, wherein it was observed as under:-- '7. 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.
8. 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 apply. It didn't contain that section 5 of the Limitation Act shall also apply, therefore, where a different limitation has been provided under a special law, then section 5 of the Limitation Act shall not be applicable and the Court has no jurisdiction to condone the limitation. In the instant case, as stated above, a different period of limitation has been provided under rule 13 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998.
Therefore, section 29 of the Limitation Act was applicable in the present case."
7.We have considered the argument of the counsel for the appellant that under section 21 of the Family Courts Act, the Family Court shall be deemed to be a District Court for the purpose of Guardians and Wards Act, 1890. Section 21 is as under:-- "Family Court deemed to be a District Court for purpose of Guardians and Wards Act, 1890. A family Court shall be deemed to be District Court for the purposes of the Guardians and Wards Act, 1890 and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act."
The Family Courts Act contains no procedure for disposing of the applications for appointment of guardians and restoration of minors. When no procedure is provided in the Guardians and Wards Act, by necessary implication the provisions of section 141, C.P.C. are made applicable which provide that the procedure contained in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in a Court of civil jurisdiction.
8. Section 17 of the Family Courts Act expressly excludes the application of Qanun-e-Shahadat Order and the Code of Civil Procedure. D These shall not apply. In the proceedings before the Family Court. Therefore section 141 of C.P.C. is not applicable in the proceedings before the Family Court.
9. It is a celebrated principle of law that where a specific procedure is laid down in an Act, general provisions are not applicable. The proposition has been considered and resolved by this Court in a case titled Muhammad Ramzan v. Mst. Rukhsana Bi [1996 SCR 265]. While interpreting section 17 of the Family Courts Act, it has been observed in the aforesaid case as under:-- "7. The above provision in the Family Courts Act speaks in clear terms that in the proceedings before the Family Court the application of Civil Procedure Code and Qanun-e-Shahadat shall be excluded. This bar provided in the above section is express and unambiguous. Thus, it becomes clear that the proceedings before any Family Court shall be free from the shackles of technicalities as provided in the Code of Civil Procedure. Yet there is another provision which apparently seems to be contradictory to section 17 of Family Courts Act. This provision is section 21 of the Family Courts Act, which provides as under:--- '21. Family Court deemed to be a District Court for purpose of Guardians and Wards Act, 1890. A family Court shall be deemed to be District Court for the purposes of the Guardians and Wards Act, 1890 and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act.'
8. The above provision postulates that notwithstanding anything contained in the Family Courts Act the Family Court shall be deemed to be the District Court for the purpose of Guardians and Wards Act. It further provides that despite coming into being of the Family Courts Act, the provisions of Guardians and Wards Act shall apply in the Guardians and Wards Act no definite procedure has been provided relating to the applications for the appointment of guardians and restoration of the custody of minors.
9.Since no definite procedure is laid down in the Guardians and Wards Act, by necessary implication the provisions of section 141 Civil Procedure Code have been made applicable which reads as under:-- 'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.'
10.The phraseology used in the above provision of Civil Procedure Code in proceedings under Guardians and Wards Act has been made applicable only by necessary implication and not by any express provision of law. In presence of section 17 of the Family Courts Act which expressly excludes the application of Civil Procedure Code in proceedings under the Guardians and Wards Act, we have formed the view to follow the express provision of law rather than the provision which applies by necessary implication."
In a case reported as Saifullah Hanif v. Bushra Bano [Civil Appeal No.55 of 2010 decided on 8.6.2011] it was observed as under:--- "8. It is celebrated principle of interpretation of statutes that if a nothing 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."
As stated above the limitation for filing an application for setting aside an ex-parte decree or ex parte proceeding is 30 days under Rule 13 of the AJ&K Family Courts Procedure Rules, 1998. This is a special F provision and in presence of special provision, no other procedure can be adopted. The application was filed beyond the period of limitation. It was rightly dismissed by the Family Court.
10. The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs. ##TR##