By this judgment I propose to dispose of Writ Petitions Nos. 26, 27 and 28, all of 1982, as these are between the same parties and common questions of law and facts are involved in them.
2. The facts necessary for the purposes of this judgment, briefly stated, are that respondent No. 3 Mst. Kaniz Fatima instituted three suits against the petitioner in the Court of the learned Judge, Family Court, Murree --first for dissolution of marriage, second for dower and third for maintenance. Writ Petition No. 26 of 1982 has arisen out of the suit for dissolution of marriage, Writ Petition No. 27 of 1982 out of the suit for dower, whilst Writ Petition No. 28 of 1982 has arisen out of the suit for maintenance.
The petitioner Mumtaz Khan (No. 6808211 NKN/Asstt., 174-Engr. Branch) is admittedly a serving soldier in the Pakistan Army.
All these suits were instituted on 1-9-1979.
The learned Judge, Family Court, Murree, issued summonses in all the three suits to the petitioner for appearance on 20-9-1979. These summonses were returned to the Court with the report of the process-server that the petitioner defendant is serving in the Army and as such service could not be effected an him. Again summonses were issued in all the suits for 10-10-1979 and there is a, note on each one of them that service should be effected through beat of drum and by affixation to the abode. The report again on this was that the petitioner-defendant is serving in the Army. Anyhow the summons was stated to have been affixed at the address given in the plaint and service was also effected through beat of drum.
The learned Judge, Family Court, by his short orders, all dated 15-10-1979, decreed ail the three suits ex parte.
3. The petitioner is stated to have been informed of this situation by his mother' whereupon he filed applications in all the three suits before the learned Judge, Family Court, Murree for setting aside the ex parse decrees. Since the Court at Murree was closed all these applications were initially instituted before the learned District Judge, Murree on 5-1-1980 and were later on entrusted to the learned Judge, Family Court, Murree. All these applications were supported by a certificate dated 2-1-1 )80 issued by the Commanding Officer, 63 Punjab, certifying that the petitioner was employed on border defence duties and was not granted leave for the last six months. It has also been certified in this certificate that the unit did not receive any information regarding case registered against Mr. Mumtaz Khan by his wife named Mst. Kaniz Fatima in the Civil Court, Murree.
4. All these applications were, however, resisted and on the divergent pleadings of the parties the learned trial Court framed the following issues
(1) Whether the petition is time barred? O. P. R.
(2) Whether the divorce has become effective ; if so, with what effect? O. P. R.
(3) Whether there are sufficient reasons to set aside the ex parte decree dated 15-10-1979?
The parties led evidence and the learned trial Court decided only issue No. 1 out of these issues and found it against the petitioner. Issues Nos. 2 and 3 were left undecided. In consequence the applications of the petitioner for setting aside the ex parte decrees were all dismissed.
5. Feeling aggrieved, the petitioner preferred appeals to the learned Additional District Judge, Rawalpindi, who dismissed the appeals by his judgment dated 16-11-1981.
6. Still dissatisfied the petitioner has come up in these constitutional petitions to this Court.
6-A. The learned counsel for the petitioner contended, firstly, that both the learned Courts below ignored the relevant provisions of the Code of Civil Procedure which by virtue of section,8(6) of the West Pakistan Family Courts Act, 1964 have been made applicable to the later Act as also the provisions of the Soldiers Litigation Act, 1925, which being a Central Act apply to all the proceedings in which soldiers are parties. Elaborating his argument the learned counsel for the petitioner contended that on the very first summons returned to the Court it was pointed out that the petitioner is serving as soldier in the Army and was on defence duty. He submitted that the provisions of sections 6, 10 and 11 of the Soldiers Litigitation Act, 1925 aptly applied to the case in hand and in consequence ex parte decrees against the petitioner were liable to be set aside ; secondly, that even the plaints were liable to be rejected or in any case liable to be amended so as to give therein particulars which were required to be given by the respondent as provided by section 4 of the Soldiers Litigation Act. It was urged that the respondent being the wife of the petitioner knew full well that the petitioner is a soldier and serving in the Army. Her very act of filing the suits without disclosing this fact and giving an address where he was not to he found being on active duty showed mala fides of the respondent to obtain an ex parse decree in the absence of the petitioner ; thirdly, that the learned trial Court directed the effecting of the sub--stituted service without any reasonable cause and without satisfying that such a service was warranted in the attendant circumstances. Referring to section 8(6) of the W. P. Family Courts Act, 1964, the learned counsel pointed out that the provisions of Order 5, C. P. C. Had been applied to the proceedings under the Family Courts Act for effecting substituted service therefore it was necessary to have first determined that occasion for the same was available ; and lastly, that section 9(6) of the Family Courts Act provides that a defendant against whom an ex parte decree has been passed may apply within reasonable time of the passing thereof to the Family Court for setting aside the same and though by rule 13 of the W. P. Family Courts Rules a period of thirty days for having the ex parte decree set aside has been prescribed yet in the attendant circumstances of the case the "reasonable time" has been wrongly interpreted by the learned lower Appellate Court by ignoring the provisions of section 10(2) ofthe Soldiers Litigation Act.
7. On the other hand, the learned counsel for respondent No. 3 only contended that the learned Courts below have given sound reasons for not allowing the applications of the petitioner for setting aside the ex parte decrees. He submitted that these decrees having now been finally passed may not be set aside. The learned counsel for the contesting respondent did not at all give any counter-arguments in reply to the arguments submitted on behalf of the petitioner as enumerated above.
8. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the petitioner have great force. It is eminently borne out from the record that the petitioner was employed, on defence duty at the border as a soldier in the Pakistan Army at the time, of the institution of the suit, issue of summonses and passing of the decrees.1 There being a report on the very first summons to the effect that the petitioner was not available at the given address and that he was serving in the Army at the border should have put the trial Court on guard had the summons been properly perused. The. Learned trial Court in my view should have resorted to the provisions of sections 6 and 7 of the Soldiers Litigation Act. Instead the learned trial Court without any sufficient cause proceeded to have substituted service effected by affixation to the abode and by beat of drum which obviously was not warranted. The order of substituted service itself being unwarranted and having been passed in disregard of the provisions of law governing the subject cannot be sustained and therefore any order passed in consequence thereof would also be not tenable and must of necessity fall along with.
9. The learned trial Court instead of rectifying the illegality committed by it in passing ex parte decrees against the petitioner further acted illegally in disallowing the said applications on the point of limitation. The provisions of section 9(6) of the W. P. Family Courts Act, 1964 provide that a defendant against whom an ex parte decree has been passed could apply within reason--able time for having the ex parte decree set aside if he satisfies the Family Court that he was not duly served or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing and the Court may set aside the ex parte decree. It is correct that by rule 13 of the W. P. Family Court Rules, 1964 a period of thirty days from the passing of the decree has been provided for filing an application for having a decree set aside, but the special provision contained in section 10(2) of the soldiers Litigation Act, 1925 which governs the case of a soldier defendant having provided ninety days for the purpose, the words "reasonable time" used in section 9(6) of, the W. P. Family Courts Act should have been liberally construed by conjunctive reading of the aforementioned provisions of the W. P. Family Courts Act, 1964 and the Soldiers Litigation Act, 1925 so as to give a harmonious interpretation to the said provisions and to promote the ends of justice.
10. It being the established position that at the relevant time the petitioner was serving at the border and no notice was sent to his Unit, service shall not be deemed to have been effected on him. There was thus no occasion for passing an ex parte decree against the petitioner, and in any case the same having been passed on the basis of substituted service ordered by ignoring the relevant provisions of law, the learned trial Court should have remedied the wrong done to the petitioner by an act of the Court by at least setting aside the ex parte decree.
11. The arguments of the learned counsel for the petitioner with reference to the provisions of sections 4, 6, 10(2) and 11 of the Soldiers Litiga--tion Act, 1925 which have not been controverted by the opposite party, also establish that the applications for setting aside the ex parte decree having been filed within less than ninety days of the passing of the decree could not be treated as time barred.
12. In view of the foregoing discussion, accepting these writ petitions, I declare the orders dated 24- 8-1980 and 16-11-1981 passed by the learned Courts below as without lawful authority and of no legal effect and accord--ingly quash the same. Resultantly the suits of the contesting respondent No. 3 against the petitioner shall be decided by the learned Judge, Family Court, Murree afresh in accordance with law.
There will, however, be no order as to costs.
The parties shall appear before the learned Judge, Family Court, Murree on 17-7-1982., ,