KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioner Muhammad Bachal has called in question order dated 22-09-2016, passed by 1st Additional District Judge, Naushahro Feroze, dismissing Family Appeal No,08/2016, filed against the order dated 27.04.2016, passed by the Family Judge, Naushahro Feroze, in Family Suit No,66/2015 re-Mst. Rabail v. Muhammad Bachal, whereby, his application seeking setting aside the ex parte judgment dated 22-01-2016 and decree dated 29.01.2016 was dismissed.
2. Briefly the facts of the case are that defendant/petitioner Mohammad Bachal alias Waseem (hereinafter referred to as the petitioner), had contracted marriage with plaintiff/respondent Mst.
Rabail (hereinafter will be referred to as the respondent). Earlier, respondent had filed a suit for dissolution of her marriage against the petitioner Muhammad Bachal alias Waseem, which was ultimately ended in compromise arrived at between the parties, who rejoined again as spouses and out of this wedlock one son namely Mudasir was born. Subsequently, again there arose dispute between the parties and resultantly the respondent was driven out by the petitioner from his house when his son Mudasir was allegedly aged about three months. Thereafter the respondent filed the subject suit being Family Suit No,44/2015 against the petitioner Muhammad Bachal alias Waseem for dissolution of her marriage with him, maintenance of minor, payment of dower and return of dowry articles in the Court of Family Judge Naushahro Feroze. The petitioner on service of summon filed his written statement. However, on failure of pre-trial proceedings between the parties, the suit was partly decreed to the extent of dissolution of marriage of the parties by granting Khula and for the remaining relief(s) the trial Court framed issues on 22.04.2015. Pending disposal of the suit, on the consent of parties, an amount of Rs,3000/- per month as temporary maintenance of minor Mudasir was ordered to be paid by the petitioner to the respondent Mst.Rabail, vide order dated 10.06.2015, passed by the trial Court. The petitioner failed to pay the aforesaid maintenance and ultimately in result thereof, his defence was struck of by the learned trial Court. The respondent adduced ex parte evidence by examining herself and her witness Faheem, who both were not cross-examined by the petitioner, who never returned to contest the matter. Resultantly the suit was decreed by the learned trial Court vide judgment dated 22-01-2016 and decree dated 29.01.2016, whereby the relief of maintenance of minor Mudasir to the extent of Rs,3000/- per month w,e,f, 10.06.2015 with increase of 10% per annum till attaining age of puberty by the minor and further Rs,10,000/- as delivery expenses were ordered to be paid by the petitioner to the respondent. Thereafter the decree holder/respondent Mst. Rabail filed Execution Application, which was allowed vide order dated 27.04.2016. Then the petitioner filed an application before the trial Court, seeking setting aside the judgment and decree. However, the said application was dismissed by the trial Court vide order dated 27.04.2016, which was appealed against in Family Appeal No,08/2016, which was ultimately dismissed by the 1st Additional District Judge, Naushahro Feroze, vide impugned judgment dated 22.09.2016, hence this petition.
3. The learned advocate for the petitioner has mainly contended that the impugned ex parte judgment dated 22.1.2016 and decree dated 29.1.2016, were passed by the Family Court, without providing fair opportunity to the petitioner to contest the suit; that the learned appellate Court instead of setting aside the impugned judgment and decree, dismissed the appeal filed by the petitioner; and, that the impugned judgment, decree and order, are illegal. He, therefore, prays that the petition may be allowed and the judgment, decree and all the orders, passed by the trial Court and the appellate Court may be set aside and the case may be remanded to the trial Court for allowing the petitioner to cross-examine the respondent and her witnesses and to lead evidence.
4. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the record.
5. From a perusal of the record it would be seen that the petitioner after service of summon, had filed his written statement and on his consent the interim order for maintenance of minor Mudasir was passed by the Family Court, but subsequently he abstained from contesting the proceedings and himself had squandered the opportunity on account of his own default and indolence, allowing the ex parte judgment and decree to become final; it was after the Execution Application was allowed, the petitioner got up from deep slumber and moved an application for setting aside the judgment and decree, passed by the trial Court, on the ground that the judgment and decree were passed behind the back of the petitioner. In such view of the matter, I am of the opinion that the defendant after having, filed his defence and consenting to the interim order relating to the maintenance of his own child, namely, Mudasir, having not opted to contest the legal proceedings, cannot be allowed to seek setting-aside of the judgment, decree and orders, passed against him, by making an application and that too on the misconceived ground that the judgment and decree were passed behind his back, for, there is no cavil to the proposition that when a decision is given in any legal proceedings, which emanates from a special statute, against a party, which was duly served, then the remedy for unsuccessful party is to challenge the same under the special statue providing remedy of appeal; once a contesting party gives up its remedy provided under a special statute, then the decision attains finality and that remains no more open to the challenge by an aggrieved party; and, thus the arguments of learned Counsel for the petitioner that the petitioner was not afforded fair opportunity to contest the matter and the impugned judgment, decree and orders, were passed behind his back, being ridiculous, are rejected.
6. In view of what has been discussed above, I am of the considered view that there is no illegality or infirmity or jurisdictional defect in the impugned judgment, decree and the orders passed by the trial Court and the appellate Court. The learned advocate for the petitioner has also not been able to point out any illegality or jurisdictional defect in the impugned judgment, decree and orders, passed by the Courts below, attracting exercise of constitutional jurisdiction of this Court under the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and, thus, the petition is liable to be dismissed.
6(sic). Above are the reasons of short order dated 11.01.2017, whereby the petition was dismissed in limine along with the listed application with no order as to costs.