ARSHAD HUSSAIN KHAN, J.---The petitioner through instant petition has challenged the Judgment and Decree dated 23.09.2011 and 27.09.2011 respectively passed by the Family Judge, Hyderabad in Family Suit No,192 of 2011 as well as Judgment and Decree dated 26.11.2013 and 27.11.2013 respectively, passed by learned VIIth Additional District Judge, Hyderabad in Family Appeal No,41 of 2012, with the following prayers:- "A) To set aside the impugned judgment dated 23.09.2011 and Decree dated 27.09.2011 (Re. Mst.
Zubeda Bibi v. Saeed Ahmed Khan) at the extent of dowry Articles and impugned Judgment dated 26.11.2013 and decree dated 27.11.2013 passed by the learned VIIth Additional Sessions Judge, Hyderabad in Family Appeal No,41 of 2012 (Re. Saeed Ahmed Khan v. Mst. Zubeda Bibi).
B) To stay the execution of judgment and decree or learned trial and appellate Courts till the final disposal of this petition.
C) To grant any other relief as this Honourable Court deems fit and proper under circumstances of the case."
[Emphasis supplied]
2. Brief facts leading to the filing of the present petition as averred therein are that the petitioner (Saeed Ahmed Khan) was married with respondent No,3 (Mst. Zubeda Bibi) and on 27.02.2011 and a sum of Rs,2500/- (rupees two thousand and five hundred only) was fixed as dower; that the petitioner was residing with the petitioner happily along with their whole family; and respondent No,3 went to the house of her brothers for ten days with the permission of petitioner but after some time respondent No,3 created problems for them on minor issues, although, petitioner tried to solve the problems but could not succeed and she refused to join the petitioner. Hence, the petitioner filed a suit for Restitution of Conjugal Rights before learned Family Judge, KabeerWala in July, 2011.
In the said suit, the respondent No,3 produced copy of judgment and decree passed in Family Suit No,192 / 2011 (Re: Mst. Zubeda Bibi v. Saeed Ahmed Khan), whereby the petitioner came to know about that suit. The respondent No,3 filed a Suit for 'Dissolution of Marriage and Recovery of Dowry Articles' being Family Suit No,192/2011 (Re: Mst. Zubeda v. Saeed Ahmed Khan) on 04.05.2011 before the learned Family Judge, Hyderabad with the following prayers:- "a. To dissolve the marriage of the plaintiff with the defendant on the ground of Khulla. b. The plaintiff is ready to forego her dower amount to the defendant. c. To direct the defendant to handover / deliver the entire dowry articles (as per list attached with the plaint) given to the plaintiff at the time of marriage.
OR ALTERNATIVE To pay Rs, 5,25,400/- (Rupees Five Lacs Twenty Five Thousand Four Hundred Only) to the Plaintiff in lieu of entire dowry articles. d. Cost of the suit be awarded to the plaintiff. e. Any other relief, this Honourable Court deems fit and proper be granted."
3. Notice of the family suit filed'by respondent No,3, issued by the learned trial Court, was not served upon the petitioner, hence, publication in daily "Nawa-e-Waqt" Multan dated 25.07.2011 was made; and the suit of the respondent No,3 was ex parte decreed in the terms that the marriage of respondent No,3 with the petitioner is dissolved on the ground of khula in lieu of her dower; and the plaintiff (present respondent No,3) is also entitled to recovery or dowry articles as per list vide judgment and decree dated 23.09.2011 and 27.09.2011 respectively.
4. It is further averred in the petition that the petitioner after coming to know the above judgment and decree, filed an application under section 9(6) of Family Courts Act before learned Family Court to set aside the said ex parte Judgment and decree but on 25.10.2012, learned Family Court Hyderabad dismissed the same. Against the said order and order passed on Execution Application, petitioner filed Family Appeal bearing No,41 of 2012 under section 14(1) of Family Courts Act, 1964, which too was dismissed by learned VIIth Additional District Judge, Hyderabad vide his judgment and Decree dated 26.11.2013 and 27.11.2013 respectively. The above said judgment and decrees of the two courts below are impugned in the present petition.
5. Learned counsel the petitioner contended that the petitioner has challenged the impugned judgment and decree passed by the Family Judge only to the extent of recovery of dowry articles that the impugned judgment and decree passed by the Family Judge is ex-parte; that the petitioner was not served properly and service through publication cannot be considered as held good as no one can be condemned un-heard despite the fact that the petitioner approached the trial Court and fully placed the details of non-service of summons with him but the trial Court in hasty manner without going through the record passed the order; that the ex parte decree must be set aside and an opportunity of being heard may be given to the petitioner for the reason that he was un-aware about such Suit and when the petitioner came to know immediately approached the trial Court; learned counsel further contended that the list in respect of dowry articles is fabricated and not genuine as the same is neither signed by the petitioner nor any one on behalf of respondent No,3, it is false and fabricated having no value in the eyes of law, hence, the petitioner has a good case and the judgments and decrees passed by the Courts below are liable to be set aside to the extent of dowry articles and the petitioner may be provided an opportunity to defend the suit. In support of his contentions, he has relied upon the cases of 'Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another' [1988 SCMR 747], 'Dr. Zafar Ahmad v. Mst.
Shamsa and others' [PLD 2002 Karachi 524], 'Ghulam Rasool v. Additional, District Judge, Sahiwal and another' and 'Muhammad Zaheer v. Shumaila Zaib and another' [2007 MLD 1807].
6. Learned Assistant A.G. Sindh has supported the impugned judgments and decrees. Whereas respondent No,3 despite having notice of the present petition did not come forward and contest the matter and she chose to remain absent.
7. I have heard the learned counsel for the petitioner, learned Assistant A.G. Sindh and have perused the record available with their assistance as well as the law cited at the Bar.
8. From the perusal of the record it appears that during the proceedings or the family suit the service of the notice of the case was effected upon the petitioner through publication however when the petitioner despite publication failed to appear in the matter he was declared ex-parte and subsequently the suit of respondent No,3 (plaintiff in the suit) was decreed on the basis of her affidavit of ex-parte proof. Relevant portion of the Ex-parte Judgment dated 23.09.2011, for the sake of ready reference, is reproduced as under: "After admission of the suit, the summonses were repeatedly issued to the defendant through bailiff as well as registered post A.D. but he could not be served, therefore, service upon him was effected through publication in the daily "Nawa-i-Waqat" Multan dated 25.07.2011 so on 30.07.2011 service upon the defendant was held good and sufficient opportunity was extended to him for appearance in the court but he failed to appear before this court to contest the matter by filing his written statement as such on 15.08.2011, he was declared ex parte and the case was proceeded in his absence and the plaintiff was required to file affidavit in ex parte proof.
As, a result, on 20.08.2011 the plaintiff appeared in person and filed her affidavit in support of ex parte proof wherein she has recapitulated the same facts, which were stated in her plaint. The plaintiff has fully supported the version of the plaint which has gone un-rebutted and un- challenged, on the other hand the defendant, despite he was duly served, has not come forward to contest the matter, hence there are no reasons why the averments or the plaint should not be disbelieved.
In the circumstances, the suit of the plaintiff is decreed ex parte, whereby her marriage with the defendant is dissolved on the ground of Khula in lieu of her dower. The plaintiff is also entitled to recovery of dowry articles as per list. There is no order as to costs. Let the ex parte decree be prepared within (07) days and copy thereof be sent to the concerned UC for confirmation."
[Emphasis supplied] The petitioner (the defendant in the suit) soon upon coming to know the impugned judgment and decree, filed application under section 9(6) of the Family Court Act for setting aside ex parte orders however, the said application was dismissed by the Fatuity Judge on 25.10.2012. Relevant portion of the said order for the sake of ready reference is reproduced, as under: "Heard the learned counsel for both sides and perused the record. It appears that summons of the suit was issued to the defendant through courier service. The defendant has not claimed the address at which the summons was sent being incorrect. Moreover, the proclamation was also published in the leading newspapers daily Nawa-e-Waqt, Multan dated 25th July, 2011. The contention of the defendant that he got the information when during the course of trial of suit for restitution of conjugal rights pending before the learned family Judge, Khanewal, the plaintiff filed statement that she had obtained Khulla from this Court, but this contention of the defendant has got no force for the reasons that summons was publicized in the widely spread local newspaper published from Multan. In such circumstances, this application merits no consideration and the same is hereby dismissed with no order as to cost."
[Emphasis supplied] The petitioner preferred Family Appeal against the said order dated 25.10.2012 under section 14 of the Family Courts Act. However, the said family appeal was also dismissed by the learned VII Additional Sessions Judge, Hyderabad on 26.11. 2013: Relevant portion of the said order, for the sake of ready reference, is reproduced as under:- "11. The perusal of the record reveals that appellant/defendant has failed to give any cogent reason/ground for his dis-appearance/absence before the learned Family Court despite issuance of repeated summons, even after proclamation published in leading newspaper daily Nawa-e- Waqt Multan dated 25.07.2011. Perusal of record further reveals that learned Family Judge after completing all the codal formalities viz., issuance of summons repeatedly and publication declared the appellant/defendant as ex parte to which respondent/plaintiff filed her affidavit-in-ex parte proof reiterating her version of the plaintiff in the said affidavit. The law acted upon in its due course but the appellant/defendant failed to appear before learned Family Judge to rebut the assertions of respondent/plaintiff and it is settled principle of law that un-rebutted version is to be treated as true and believable as well as the appellant/defendant failed to challenge the ex parte judgment and decree before the apex court. Therefore, the learned Family Judge has not committed any illegality or irregularity committed while passing the order dated 25.10.2012."
The petitioner, having no alternate remedy, resorted to this Constitutional petition under Article 199 of the Constitution of Pakistan.
9. From the perusal of the above orders it appears that the learned family judge passed the ex parte judgment against the petitioner on the basis of publication, whereas from orders it appears that the publication was granted when the summons could not be served through bailiff as well as registered post A.D. however, there is nothing available on record which could show that the petitioner ever refused to receive the summons of the trial court and or avoided the service besides there is also nothing available on record which could show that whether the petitioner was tried to be served through courier service or not or whether any pasting order was passed. The learned family Judge instead of compelling the plaintiffs to provide any other address of the petitioner and or serve the petitioner through courier service, ordered service on the petitioner through substituted service. The provisions of substituted service under Order V, Rule 20, C.P.C., states as under:- "Substituted Service. Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose a avoiding service or that for any other reasons, the summons cannot be served in an ordinary way, the Court shall order for service of summons by....
This provision of law empowers the Court to adopt procedure of substituted service, only when all efforts to effect the service upon the defendants in the ordinary course are made, but in vain. In the present case there is nothing available on record, which could, show that the petitioner/defendant was either avoiding service of summons upon him or he could not be found for any reason. In the circumstances, it cannot be said that petitioner/defendant was keeping but of the way for the purpose A of avoiding service, or that he could not be found for any reason. It seems that, the learned Family Court has failed to follow the procedure provided by law before ordering substituted service, hence committed an error.
10. Even otherwise, the Family Court before making order for publication of notice in press, did not order affixation of a copy of summons at some conspicuous part of the house or place or business of the petitioner. If such procedure was adopted, the petitioner could have been served. Thus, the given facts lead me to the conclusion that even proper procedure as provided by Rule 20 of Order V of the C.P.C. has also not been adopted by the learned Family Court, therefore, the publication of notice in the daily newspaper Nawa-e-Waqt Multan cannot be considered as effectual service of notice upon the petitioner/defendant. In this behalf, reliance can be placed on the cases of Haji Akbar v. Gul Baran (1996 SCMR 1703), Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99) and Messrs AXLEPRODUCTS Limited v. Messrs Allied Bank of Pakistan Ltd., (2001 SCMR 1469). It is therefore, established that the petitioner was unaware about the proceedings before the family court and announcement of the impugned judgment and decree. Even otherwise, the reason mentioned for the non-appearance in the case appears to be plausible. In the circumstances, the judgment and decree, impugned in the present proceedings is not sustainable in law and is void and thus, could not be maintained. The appellate order would also be null and void since the foundation thereof is void ab initio.
11. The upshot of the above discussion is that the judgment and decree of the Family Court to the extent of recovery of dowry articles and so also the order dated 25.10.2012 passed by Family Court coupled with the appellate judgment dated 26.11.2013 and decree dated 27.11.2013 are set aside and Family suit is remanded to the learned Family Court for proceedings afresh only in respect of recovery of dowry articles by allowing petitioner/defendant to file his written statement and contest the suit on merits but it is clarified that petitioner/defendant should not employ any dilatory device to delay the proceedings. The petition is disposed of in above terms.