M. TABASSUM AFTAB ALVI, J.---The supra titled appeal has been preferred against the impugned judgment of Judge Family Court, Mirpur, dated 31.05.2017, whereby an application, filed by appellant-defendant, for setting aside ex-parte judgment and decree dated 21.04.2014, was dismissed.
2. The precise facts leading to the instant appeal are that Mst. Shabana Rafique along with minors, Muhammad Ali Ehsin and Shanze Komal, filed a suit for maintenance allowance, before Judge Family Court, Mirpur, on 01.01.2014. Thereupon, respondent was summoned through registered post as well as proclamation published in 'Daily Ausaf' on 17.01.2014. However, due to non-appearance, the Court below initiated ex-parte proceedings against him, vide order dated 08.02.2014. The learned Judge Family Court, Mirpur, after recording evidence and hearing, passed an ex-parte decree against Mahmood Akhtar, appellant-defendant, vide the judgment and decree dated 21.04.2014. The appellant-defendant, filed an application for setting aside the aforesaid ex-parte judgment and decree, before Judge Family Court, Mirpur, on 08.04.2017. He mentioned ground in the application that he was resident of Gujranwala, who did not receive any notice or summons and had no knowledge about institution of suit as well as exparte judgment and decree, hence, prayed for setting aside the aforesaid ex-parte judgment and decree. The application was resisted by respondents-plaintiffs through objections dated 29.05.2017. The Court below after hearing, dismissed the application, moved for setting aside ex-parte judgment and decree dated 21.04.2014, through the impugned judgment dated 31.05.2017; hence, the instant appeal.
3. Mr. Muhammad Shahzad Chaudhary, the learned Counsel for appellant, submitted that the Court below committed an illegality while dismissing the application for setting, aside ex-parte judgment and decree, because appellant-defendant had no knowledge about institution of suit and passing of decree, rather at the stage of execution proceedings his sister received a letter and informed him. He further contended that notice/summons was not properly served upon appellant; hence, impugned judgment along with ex-parte judgment and decree are liable to be set-aside.
The learned Counsel' agitated that right of hearing is a fundamental right of every citizen; therefore, without hearing of appellant, ex-parte impugned and decree are not sustainable. The learned counsel finally prayed for acceptance of the instant appeal and cited a case titled Saleem Akhtar Kayani v. Dr. Rehana Mansha Kayani and 4 others (2016 SCR 1), in support of his arguments.
4. Conversely, Mr. Muhammad Rafique Dar, the learned counsel for respondents, vigorously contended that the learned Court below rightly dismissed application,moved for setting aside ex- parte judgment and decree, because the same was filed with delay of 03 years, after expiry of prescribed period of limitation i.e. 30 days under Rule 13 of The Azad Jammu and Kashmir Family Courts Procedure Rules, 1998. The learned Counsel submitted that appellant-respondent was duly served through registered post and proclamation published in 'Daily Ausaf' on 17.01.2014; therefore, argument of the learned Counsel for appellant that his client had no knowledge about ex-parte judgment and decree, is not sustainable. The learned Counsel finally craved for dismissal of the nstant appeal and in support of his arguments, placed reliance upon the following case law:-- i. Muhammad Irshad Khan v. Muhammad Kaleem Khan and 7 others PLD 2007 SC (AJ&K) 14. ii. Naveed Farid v. Raheela Razzaq 2012 CLC 1131 iii. Muhammad Iqbal Khan and another v. Parveen Shakir 2013 SCR 85.
5. I have heard arguments of the learned Advocates for parties and gone through the record with utmost care.
6. The main contention of the learned Counsel for appellant-defendant is that, appellant- defendant is resident of Gujranwala and notice/summons was not properly served upon him; hence, he had no knowledge about institution of suit as well as passing of the impugned judgment and decree, the same are liable to be set-aside. In order to arrive at just and proper conclusion of the controversy, I have scrutinized record. It is evident from record that after institution of suit for maintenance allowance on 01.01.2014, appellant was summoned through registered A.D and a proclamation was also published in Daily Ausaf dated 17.01.2014, as well as in local Newspaper Muhasib dated 16.01.2014, and thereafter he was proceeded ex-parte vide order dated 08.02.2014. It also reveals that address of appellant upon registered A.D. has been incorporated correctly. It is worthwhile to observe here that limitation for filing an application, for setting aside an ex-parte judgment and decree is 30 days under Rule 13 of The Azad Jammu and Kashmir Family Courts Procedure Rules, 1998. The Family Courts Act is a special law which provides limitation under the Rules. There is no concept of condonation of delay under Rule 13 of the Family Court Procedure Rules, 1998. The Rule lays down that ex-parte proceedings may, for sufficient cause, be set aside by the Court on the application made to it within 30 days of passing of decree or decision. The words used are unambiguous and limitation for setting aside the ex-parte decree is thirty days from the date of decree and not from the date of knowledge as claimed by the learned Counsel for appellant, whereas in the case in hand appellant filed application after elapsing period of almost 03 years, on 08.04.2017. The Apex Court, at the point of limitation, held in a case reported as Naveed Farid v. Raheela Razzaq 2012 CLC 1131 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 for filing application for setting aside an ex parte decree is 30 days. The Family Courts Act is a special law which provides limitation under the rules. There is no concept of condonation of delay under Rule 13 of the Family Courts Procedure Rules, 1998. The Rule lays down that ex parte proceeding may, for sufficient cause, be set aside by the Court on the application made to it within 30 days of passing of decree or decision. The words used are unambiguous. The limitation for setting aside the ex-parte decree is thirty days from the date of decree and not from the date of knowledge as claimed by the Counsel for the appellant. In presence of clear provisions in the special law, the provisions of section 5 of the Limitation Act are not applicable in the proceedings before the Family Court.
The same view was reiterated by the Apex Court in a case reported as Muhammad &Mal Khan and another v. Parveen Shakir (2013 SCR 85), while relying upon case titled Saifullah Hanif v. Bushra Bano (Civil Appeal No.55 of 2010, decided on 08.06.2011), wherein, it was held as under:-- "...but the question of proving fact for establishing sufficient cause can be considered only if the application has been filed within period of 30 days required for filing the application under Rule 13.
The application is filed beyond period of 30 days, hence, the appeal merits dismissal. The question of sufficient cause does not arise. Similarly, the argument of the. Counsel for. the appellant that proclamation was published in such a newspaper which has no circulation in U.K, cannot be considered because this argument is only for the purpose of proving sufficient case which cannot be considered on the ground that the application was filed beyond limitation."
7. As held earlier in the case in hand, that appellant was duly served through registered A.D and proclamation in 'Daily Ausaf'; thus, the question of having no knowledge by appellant about institution of suit and intimation through A.D as well as through proclamation, does not arise.
7(sic) As far as case titled Saleem Akber Kayani v. Dr. Rehana Mansha Kayani and 4 others (2016 SCR 1), relied upon by the learned Counsel for appellant, is concerned, suffice to observe here that no doubt in the aforesaid precedent case, defendant was proceeded ex-parte by trial Court and his appeal was also dismissed by Shariat Court, however, after ex-parte proceedings, plaintiffs moved an application for amendment in maintenance suit before the Family Court, which was allowed without giving notice to plaintiffs; hence, case was remanded to Court below by the Apex Court and it was held as under:-- "Thus, it was mandatory for the Family Court that after allowing the amendment application, a notice should have to be served upon the defendant and he should have been provided an opportunity to file the written statement. Without seeking written statement and issuances of notice to the defendant in the amended suit, the decree for maintenance charges claimed in the amended plaint cannot be passed and is not maintainable."
The proposition in the aforesaid reported case was relating to section 14 of The AJ&K Family Courts Act, 1993 and Rule 22 of The AJ&K Family Courts Procedure Rules, 1998, whereby it was observed by the Hon'ble Supreme Court that a proviso has been attached to the aforesaid Rule 22 that the Appellate Court may for sufficient cause extend the period of limitation, whereas in the present case, the matter relates to Rule 13 of The AJ&K Family Courts Procedure Rules, 1998, upon which, the Apex Court has been explicitly delivered: its findings in the afore-quoted cases titled Naveed Farid v. Raheela Razzaq [2012 CLC 1131] and Muhammad Iqbal Khan and another v. Parveen Shakir [2013 SCR 85].
9. The nutshell of above discussion is that the learned Judge Family Court, Mirpur, rightly dismissed the application, filed for setting aside the ex-parte judgment and decree dated 21.04.2014, which was hopelessly time barred; therefore, the impugned judgment dated 31.5.2017, does not warrant any interference by this court, which is maintained. Consequently, finding no substance in the instant appeal, it is hereby dismissed. No order as to the costs.