SARDAR MUHAMMAD EJAZ KHAN, J. The above captioned appeal has been directed against the judgment of Judge Family Court, Muzaf farabad, dated 30.12.2017, whereby , an application for setting-aside ex-parte judgment and decree dated 21.04.2016 was dismissed.
2. Brief facts of the case are that plaintif fs-respondents, herein, filed a suit for maintenance allowance and recovery of dower in the Court of Civil Judge/Judge Family Court No.III, Muzaf farabad, against defendant-appellant, herein, on 22.04.2016. The learned trial Court while consolidating both the cases decreed the suit of maintenance allowance and dismissed the suit for recovery of dower for want of proof vide impugned judgment and decrees dated 21.11.2016. It has been contended that the appellant was informed by somebody with regard to ex-parte decrees dated 21.11.2016 and warrant of arrest in wedding ceremony at Peelo-Pagla-Rajpothi, and when the matter came into the knowledge of the appellant, then he applied for obtaining certified copies of the judgment and decrees along-with other relevant record. It has been stated that after obtaining the said record, appellant promptly approached the competent Court of law for, cancellation of said warrant and filed application for setting-aside ex- parte decree dated 21.11.2016 stating therein that plaintif f-respondent No.1, herein, wrongly mentioned the address of the appellant in the title of suit so that a service upon the appellant could not be effected and the appellant was summoned through substituted service i.e. proclamation, which is not a national newspaper of Azad Jammu and Kashmir and is not well reputed daily news, hence, all the proceedings initiated against appellant in hasty manner , therefore, the ex-parte judgment and decree may be set-aside. The learned Court below after hearing the parties dismissed the applica tion on the point of limitation vide impugned judgment dated 30.12.2017, hence, this appeal.
3. Raja Asif Bashir , the learned counsel for appellant, more or less, reiterated the grounds of appeal and argued that plaintif f-respondent No.1, is clever lady who deliberately mentioned the address of the appellant in the memorandum of plaints so that she may obtain ex-parte decree. The learned counsel emphasized that one hand the plaintif f-respondent. No.1 herself admitted in the suit that she after 'Rukhsat ' went to Kharian with the appellant but on the other hand she mentioned wrong address of the appellant i.e. Mohallah Akarghar Tehsil and District Rawalpindi, presently at Rajpothi, near Attana Danna Kacheeli "Wandering Goatherd" ({{URDU TEXT}}) The learned counsel pressed into service that plaintif f-respondent No.1 has knowledge with regard to the original address of the appellant according to his C.N.I.C. i.e. Kotli Kahori,Muzaf farabad, but the learned Court below failed to consider this important aspect of the matter. The learned counsel added that the proclamation was issued in a newspaper 'Daily Ausaf', which is not circulated in all parts of Azad Jammu and Kashmir and the proclamation and A.D. post clearly show that the address of the appellant was deliberately given as "Wandering Goatherd" ({{URDU TEXT}}), which is not a permanent address of the appellant and how service upon him could be effected. The learned counsel finally prayed for acceptance of appeal.
4. Mr. Muhammad Aslam Raza, the learned counsel for respondents while controverting the arguments of the learned counsel for appellant defended the impugned order on all counts and prayed for dismissal of appeal.
5. I have heard the learned counsel for the parties and gone through the record of the case with my utmost care.
6. It is to be seen as to whether the impugned judgment passed by the learned Additional District Judge/Judge Family Court, Muzaf farabad, on 30.12.2017 is in accordance with law or not? It is relevant to mention here that under the Azad Jammu and Kashmir Family Courts Act, 1993 the following mode has been defined for intimation to the defendant:- "Intimation to defendants:----( 1) Within three days of the presentation of the plaint to a Family Court the plaintif f 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 subsection (1), cause notice to the published in newspapers approved by the Family Court of the fact of his having filed the plaint."
7. In view of above quoted provisions of law, the learned trial Court vide order dated 22.04.2016 while adopting due process in both the suits directed the plaintif fs-respondents, herein, to deposit the requisite fee for summoning defendant-appellant, herein, through A.D. post and proclamation within three days and the case was posted to 07.05.2016 and on the said date the Court has passed the following order:- {{URDU TEXT}}
8. It appears from bare reading of the above order that it has been mentioned that the address of defendant- appellant, herein, mentioned in the title of suits was incorrect and the learned counsel for the plaintif fs-respondents, herein, was directed to submit fresh address of the aforesaid defendant-appellant and on very next date i.e. 20.05.2015 last opportunity was provided to the learned counsel for plaintif f-respon dents, herein, for submission of fresh address of defendant-appellant, herein. After availing last opportunity the needful was not done and trial Court, vide order dated 23.05.2016 again directed for submission of fresh address so that a service upon the defendant-appellant, herein, may be procured and the case was fixed for the purpose on 07.06.2016. On the said date the learned counsel for plaintif f-respondents, herein, filed two separate applications one for struck off the words "Wandering Goatherd " ( URDU TEXT}}) from para No.1 of the suits and second for furnishing fresh address of defendant-appellant i.e. "R/o District Gilgit, Tehsil Astor , Police Station Mini Marg " and it has also been stated in the said application that defendant-appellant, herein is "Wandering Goatherd " ({{URDU TEXT}}) who is migrating one place to another during summer season and now it came into the knowledge of plaintif f-respondents, herein, that he migrated to Gilgit side and his service can be effected through Police Station, Mini Marg, therefore, defendant-appellant, herein, may be summoned on the given address in both the suits. In such like situation, the learned trial Court was not competent to proceed ex-parte against the defendant-appellant, herein, vide order dated 07.06.2016. For proper appreciation of the matter , it is relevant to reproduce the said order , which reads as under:- "{{URDU TEXT}}: 07.06.2016 {{URDU TEXT}}; 27.06.2016"
9. At the very outset, when this matter came into the knowledge of the Court below with regard to submission of fresh address of defendant-appellant, herein, which is so apparent on the surface of file, therefore, it was enjoined upon the learned trial Court to summon the defendant-appellant on the given address in accordance with the relevant provisions of law whereas the learned trial Court allowed the application for struck off the words "Wandering Goatherd" ({{URDU TEXT}}) from para No.1 of the plaints and the application for submission of fresh address of defendant appellant, herein, was wrongly dismissed as withdrawn on the statement of plaintif f- respondent No.1, herein, that a service upon the defendant-appellant, herein, was effected through proclamation previously , therefore, he may be proceed ed ex-parte. As the Court was fully aware with the fact that fresh address of defendant-appellant, herein, was submitted then he could have been summo ned on the address mentioned above, hence, the ex-parte proceedings were wrongly initiated against the defendant-appellant, herein. My this view is fortified with the proposition resolved by the apex Court in a case titled Syed Mehar Ali Shah v. Syeda Nudrat Bibi and another [2018 SCR 9], wherein, it has been opined as under:- "According to the celebrated principle of law the question of limitation is not a pure question of law rather it is a mixed question of facts and law which requires proof. So far as the contention of the learned counsel for the respondent that the limitation starts running from the date of judgment and decree is concerned, it appears to be