Sardar Abdul Hameed Khan, J-- This appeal by leave of the Court is filed from the order of the Shariat Court dated 9.9.2016 whereby while accepting the appeal filed by the respondent, herein, the application for setting aside the exparte decree dated 3.10.2014, has been allowed.
2. According to the brief case history, the appellant, Zaib-un-Nisa, filed three suits; one for jactitation of marriage; second for recovery of dower in shape of ornaments worth Rs. 1,20,000/-; and third for recovery of deferred dower amounting to Rs. 2,50,000/- before the learned Judge Family Court, Pallandri on 18.9.2014. All the three suits were consolidated vide order dated 29.9.2014. The respondent was proceeded exparte and after recording exparte evidence, the suit for jectitation of marriage and recovery of deferred dower were decreed vide judgment dated 03.10.2014, however, the suit for recovery of dower in shape of ornaments was dismissed.
The respondent filed an application for setting aside the exparte judgment and decree of jactitation of marriage on 28.9.2015. The learned trial Court vide order dated 31.3.2016 dismissed the application being barred by limitation. However, on appeal, the Hon'ble Shariat Court vide impugned judgment dated 9.9.2016 while allowing the application restored the original suit with the direction to the trial Court to proceed with the suit, hence, this appeal by leave of the Court.
3. Sardar Muhammad Rauf Khan, the learned counsel for the appellant, argued that the judgment passed by the learned Shariat Court is against law and facts of the case, which is not sustainable in the eye of law. He submitted that the application filed for setting aside the exparte decree was patently time-barred as stipulated in sections 5 and 8 of the Azad Jammu and Kashmir Family Courts Act, 1993 and rule 13 of the Azad Jammu and Kashmir Family Courts Rules, 1998. According to the principle of law enunciated by this Court neither the provisions of the Limitation Act, 1908 are attracted nor can limitation be condoned. The learned counsel argued the Hon'ble Shariat Court fell in error of law while setting aside the impugned judgment of the trial Court. The learned counsel in support of his submission placed reliance on the cases reported as Naveed Farid vs. Raheela Razzaq [2012 CLC 1131], Naveed Farid vs. Raheela Razzaq [2012 SCR 341] and Muhammad Iqbal Khan and another vs. Parveen Shakir [2013 SCR 85].
4. Conversely, Syed Shafaqat Hussain Gardezi, the learned counsel for the respondent, strongly opposed the arguments addressed by the learned counsel for the appellant, while submitting that the impugned order passed by the Hon'ble Shariat Court is in accordance with law. He argued that the learned Judge Family Court, Sudhnooti/Pallandri issued the proclamation for service in a local newspaper which has no circulation in Kharian, District Gujrat, Pakistan, wherein the defendant-respondent resides, as well as no service through registered post was effected, therefore, the respondent has no knowledge of the suit filed by the appellant, herein. He argued that the defendant-respondent on 23.12.2014 got the knowledge of the exparte judgment and decree dated 03.10.2014, hence, he filed an application before the Judge Family Court for setting aside the same on 20.1.2015, hence, the application was well within time. He argued that in absence of any proof of service through prescribed manner, the limitation shall start running from the date of knowledge. He contended that the learned Judge Family Court during the proceedings of the suit has violated the mandatory provisions and requirements of section 8 of the Azad Jammu and Kashmir Family Courts Act, 1993. He contended that it was enjoined upon the learned Judge Family Court to ensure the proper service upon the respondent, therefore, the learned Shariat Court has rightly accepted the appeal filed by the respondent. He argued that under section 9 of the Family Courts Act, 1993, 15 days time limit is provided for filing the written statement to the defendant after effecting the service, whereas, the learned Judge Family Court has decided the case within a period of 15 days which is a clear cut violation of the statutory provisions of law. The learned counsel further contended that under section 12 of the Family Courts Act, 1993, the judgment and decree dated 03.10.2014 and the order dated 31.3.2016 passed by the learned Judge Family Court do not fall within the definition of judgment. The learned counsel in support of his submission placed reliance on the cases reported as Muhammad Iqal Khan and another vs. Parveen Shakir [2013 SCR 85], Saleem Akbar Kayani vs. Dr. Rehana Mansha Kayani and 4 others [2016 SCR 1] and Syed Agha Hussain Shah and others vs. Mst. Deena Bibi and others [PLJ 2017 Peshawar 1].
5. We have considered the arguments and perused the impugned order with utmost care. The order of the Shariat Court was challenged by filing the petition for leave to appeal which was granted vide order dated 2.11.2016 by formulating the following proposition for consideration:-- ".......Whether a decree without compliance of the statutory period for filing written statement is valid is a question of law of public importance. The other point is of limitation, if a party has not been served according to law or the proceeding has been kept secret by practicing fraud, whether limitation will run from the date of order or from the date of knowledge, also is a question of public importance...."
6. After going through the above said leave granting order, we have to deal with only two points formulated in the supra quoted order.
7. While adverting to the first question as to whether the defendant-respondent has been granted the time of 15 days for filing written statement after service under section 9 of the Azad Jammu and Kashmir Family Courts Act, 1993, it may be stated that admittedly, Mst. Zaib-un-Nisa, appellant, herein, filed three suits; suit No. 36 for jactitation of marriage; suit No. 30 for recovery of dower/ornaments and suit No. 31 for recovery of deferred dower before the Judge Family Court, Sudhnooti/Pallandri on 18.9.2014. The learned Judge Family Court, Sudhnooti/Pallandri vide exparte judgment dated 03.10.2014 decreed suit Nos. 31 and 36, initiated against the defendant-respondent, whereas, suit No. 30 was dismissed for want of proof. The respondent, herein, filed an application on 28.9.2015 before the learned Judge Family Court for setting aside the exparte judgment and decree dated 03.10.2014 to the extent of suit No. 36 which was dismissed on the ground of limitation.
8. We have also gone through the interim orders recorded by the trial Court. On filing of the suits, the defendant- respondent, herein, was summoned through proclamation as well as through registered post and the case was fixed for 23.9.2014. On 23.9.2014, the learned Judge Family Court passed the order that as the service upon the respondent has not been effected through registered post and the case was adjourned to 25.9.2014. On 25.9.2014, the respondent was proceeded exparte. The perusal of the record shows that although, the postal receipts dated 18.9.2014 are on record but no acknowledgement is found on the file from where from it can be ascertained that the service upon the defendant-respondent was ever effected. For better appreciation, it will be advantageous to reproduce here sections 8 and 9 of the Azad Jammu and Kashmir Family Courts Act, 1993, which read as under:-- "8. Intimation to defendants:- (1) Within three days of the presentation of the plaint to a Family Court the plaintiff shall send to each defendant by registered post, a copy of the plaint together with a copy of the schedule as mentioned in Section 7(2) and copies of all documents mentioned in Section 7(3).
(2) Save as may otherwise be prescribed, the plaintiff shall also, within the time specified in sub-section (1), cause notice to be published in newspapers approved by the Family Courts of the fact of his having filed the plaint.
9. Written statement:- (1) Within fifteen days of the service of notice upon him by registered post or the appearance of a Notice in a newspaper, whichever is earlier, the defendant shall appear in Court and file his written statement.
(2) With the written statement the defendant shall attach-
(a) Copies of the entire documentary evidence that he wishes to produce in the case; and
(b) A list of the names and addresses of his witnesses along with a precise of the evidence that each witness is expected to give. (3) Copies of the Written statement and the documents referred to in subsection (2) shall be sent by registered post by defendant to the plaintiff within three days of his filing the written statement; Provided that if there are several defendants and they file a joint written statement, only one of them shall send a copy of the written statement with the documents mentioned in sub-section (2).
(4) If the defendant fails to appear within the time specified in sub-section (1), the Family Court may proceed against him ex-parte.
Provided that court shall be satisfied for initiating such proceedings that defendant is either willfully avoiding the receipt of the notice or is not appearing before the Court deliberately inspite of receipt of notice."
A perusal of the order recorded by the Judge Family Court on 25.9.2014 through which the respondent proceeded exparte also suggests that the statutory period of 15 days as provided under section 9 reproduced hereinabove for filing the written statement shall be calculated from the date when the service was effected upon the defendant through prescribed manner. Whereas, in the instant case, the learned Judge Family Court calculated the statutory period of 15 days from the date of institution of the suit which is clear illegality and non- adherence of the statutory provision of section 9 of the Azad Jammu and Kashmir Family Courts Act. 1993. The language used in the statutory provisions reproduced hereinabove is unambiguous and in clear terms provides that a written statement by a defendant shall be filed within a period of 15 days from the date of service upon such respondent. Here it may be observed that the Courts have to go by law and whereupon the plain reading of the statute is found unambiguous is to be adopted in its true sense without importing any extraneous consideration or interpretation. Now it is settled principle of law of interpretation that the law should be interpreted as it exists on the statute book and not as it ought to be. The trial Court while passing the exparte order against the defendant has misconstrued the provision of law. Thus, the trial Court was not justified to proceed exparte against the defendant.
9. Now we come to the second limb of the case i.e. the question of limitation, whether; the limitation shall start running from the date of order or from the date of knowledge. As we have stated hereinabove that the service upon the defendant-respondent, herein, was not effected under law, thus, according to law, when a party has not been served in the prescribed manner or proceedings have been conducted and kept secret by practicing fraud, the limitation for setting aside such proceedings, shall start from the date of the knowledge. It is crystal clear from the provisions of section 9 reproduced hereinabove read with proviso added to sub section 4, it leaves no room except to conclude that the statutory provisions have been violated by the trial Court while proceeding exparte against the defendant. As the trial Court has not assigned any reason for his satisfaction which is clear illegality, hence, the learned Shariat Court has validly interfered with the findings recorded by the trial Court. In full bench case reported as Muhammad Iqbal Khan and another vs. Parveen Shakir [2013 SCR 85] referred to and relied upon by both the learned counsel for the parties, this Court while dealing with the proposition as is involved in the case in hand, held as under:-- "7. While reiterating the view express in our above referred three judgments, we may observe that although the Family Court Act is a special law and period of limitation is provided in the Act and Rules, the provisions of Limitation Act, 1908 are not applicable being general in nature but there may be an exception in a case i.e. under Section 18 of the Limitation Act, which deals with the effect of fraud, if a particular case is covered by Section 18 of the Limitation Act based on fraud and a party successfully proves that he/she was precluded from filing application/suit, by means of fraud being kept away from the knowledge of such right, what is the effect of such fraud on application/appeal/suit, can be considered by the Court."
10. After going through the statutory provisions of law along with the case law reproduced hereinabove, as well as non-availability of any proof of effecting the service upon the defendant-respondent, we are unanimous on the point that the Shariat Court has recorded the well reasoned findings on the point of limitation which is the line of latest view of this Court quoted above. As the learned Judge Family Court without adhering to the provision of section 9 of the Azad Jammu and Kashmir Family Courts Act, 1993 has passed the order dated 31.3.2016, wherein, the application for setting aside the exparte decree was dismissed, has rightly been recalled by the Hon'ble Shariat Court through the impugned order. The ca se law reported as Naveed Farid vs. Raheela Razzaq [2012 CLC 1131] and Naveed Farid vs. Raheela Razzaq [2012 SCR 341] referred to and relied upon by the learned counsel for the appellant is distinguishable in the circumstances of the case in hand.
In the light of what has been discussed above, the appellant failed to substantiate any legal ground for interference in the judgment impugned before us, thus, finding no force in the appeal, the same is hereby dismissed with no order as to costs.