Dr. Khurshid Iqbal, J.
1. On 17.07.2019, Mst. Zulfat, the respondent/wife, instituted a family suit against Liaqat Ali, her husband, before the learned Judge Family Court, Buner at Daggar, for recovery of her dower, maintenance, arrangement of a separate accommodation and conjugal rights as per the terms of compromise and the order of the learned Judge Family Court, both dated 15.04.2019, recovery of dowry articles and payment of Rs. 90,000/- as maintenance, etc., @ Rs. 5000/- per month for the last 18 months and onward till the marriage of the plaintiff No. 2. The petitioner/ husband was summoned, who did not appear despite issuance of a publication in the Newspaper. On 25.02.2020, he was placed ex-parte. The learned Judge Family Court recorded ex-parte evidence of the respondent/wife. On conclusion of the trial, the learned Judge Family Court granted the following relief vide her judgment and decree dated 11.03.2020:
2. Thereafter, the respondent/wife filed an execution petition. During pendency of the execution petition, the petitioner got knowledge of the ex-parte decree passed against him. On 24.02.2021, he moved an application for setting aside the ex-parte decree dated 11.03.2320, which was dismissed by the learned Judge Family Court vide order No. 9 dated 09.06.2021, being time barred. The appeal preferred against that order also met the same fate.
3. The petitioner moved the instant writ petition before this Court. Respondents No. 1 and 2 were put on notice and the case was fixed for hearing in pre-admission.
4. I have heard arguments of learned counsel for the parties and perused the record.
5. Learned counsel for the petitioner/husband vehemently stressed that the respondent/ wife did not provide correct address of the petitioner in her plaint and that it was for this reason that the summons was not served upon him. This argument appears to be baseless for the reason that in the head-note of his application, the petitioner/husband simply mentioned his name with no other key details, such as, his father's name and his place of residence. Copies of the proceedings of the learned trial Court available on the record would show that the learned trial Court in its order dated 21.11.2019, observed with reference to the report of the serving official that the petitioner was avoiding and his father was refusing the service. The respondent/wife informed the Court that the petitioner used to sew clothes and his shop is situated in Saidu Sharif. She was asked to provide the details of that address. However, she did not provide the same. The order dated 14.01.2020, shows that the serving official when reached on the given address, he found that the petitioner was kicked out by his father from the house. However, his father did not provide his correct address. In such circumstances, on 08.02.2020, the learned trial Court directed publication in the newspaper for 25.02.2020, on which date the ex-parte proceedings were initiated against him. Copies of the execution proceedings produced by the respondent/wife would show that on 16.10.2020, the learned executing Court found from the rep art of the serving official that the petitioner was deliberately avoiding his service and his father refused to cooperate. The learned executing Court was informed that the petitioner was serving as Mali in Central Hospital at Saidu Sharif, Swat. For this reason, his salary was attached. That order proved fruitful because on 24.02.2021, he appeared before the learned executing Court and his counsel submitted an application for setting aside the ex-parte decree.
6. The record further shows that the petitioner has joined the execution proceedings and has been paying the decretal money in compliance with the decree passed against him. He has produced no evidence of the fact that le remains outside the district in connection with earning his livelihood.
Rather, it is materially proved that he is serving as a Mali in Central Hospital, which fact he has not denied at all. The record further shows that the respondent/wife had earlier filed a family suit against him in the year 2019, in which he patched up the matter with the respondent/wife through a compromise' deed dated 15.04.2019. Interestingly, in that compromise deed, the place of residence of the petitioner has been written as Central Hospital, Saidu Sharif, Swat, which he has now disputed in his application for setting aside the ex-parte decree. Pursuant to the compromise in respect of which the parties recorded a joint statement, the respondent/ wife withdrew her suit. It was in the second round after the compromise that the respondent/wife filed a fresh suit against him, in which she contended that the petitioner has failed to honor the terms of the compromise.
During the arguments, his learned counsel produced a divorce deed dated 12.06.2019. The petitioner, however, has not disclosed the factum of divorce in his application for setting aside the ex-parte decree, the memorandum of appeal and in the instant writ petition as well. Guidance is sought from the case titled as Iftikhar Ahmad v. Mst. Jehan Ara and 3 others (2007 SCMR 449), in which Hon'ble the Supreme Court held: "The record shows that on 2-5-2003 respondents filed a suit for maintenance and recovery of dower amount before the trial Court. The trial Court summoned the petitioner through registered A.D. cover but the same was returned unserved with the report that the petitioner was not available on the given address. Thereafter, the trial Court published a notice against the petitioner in Daily "Pakistan", Lahore, but in vain. On 9-9-2003 an ex parte decree was passed in favour of respondents against the petitioner by the trial Court on merits after examining respondent No.1 as P.W.1. It was after one and a half years, petitioner filed application for setting aside ex parte decree before the trial Court on 2-2-2005 without mentioning any valid and cogent ground for not filing the same well in time. Even application for condonation of delay was not filed. In the aforesaid application, the address given by the petitioner was the same as mentioned in the plaint on which initially the lower Court sent summons through Registered/A.D.
It shows that the trial Court adopted all legal modes for effecting the service on petitioner but neither petitioner nor anyone else on his behalf attended the Court. After publication in the daily "Pakistan", Lahore, the trial Court was justified to pass ex parte order against the petitioner. Even otherwise under the law, the petitioner was supposed to file the application for setting aside ex parte decree within the stipulated period of limitation but he did not file the same within time and rather he' filed the same after the delay of one and half years. It is also an admitted fact that petitioner is the first cousin of respondent No. 1, therefore, being the family member had the full knowledge of the case. There is no reason to believe that the petitioner did not know about the suit."
In Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), it was observed: "It is crystal clear that petitioner bad filed application for setting aside ex parte decree after about four months of the passing of the decree. Meaning thereby petitioner and his counsel did not vigilant to pursue and find out what was happened on 3-1-2004 before the trial Court. The medical certificate submitted by the petitioner was rightly ignored and discarded by the learned High Court with cogent reasons as medical certificate was procured by the petitioner from private practitioner. This certificate does not show that petitioner was in such serious condition that he could not call his counsel to his house for consultation nor could he speak to him on telephone. Some person from the family could have been sent to inquire from the Advocate about the progress of the case. The learned Courts below were not satisfied that the reasons stated by the petitioner and in his affidavit in support of application under section 5 of the Limitation Act. As mentioned above suit was decreed on 3-1-2004 and application under Order XXXVII, rule 4, C.P.C. had been filed on 11-5-2004 which was dismissed due to non-prosecution on 10-7-2004. Article 164 of the Limitation Act provides 30 days time to the petitioner/defendant to file application for setting aside ex parte decree. These 30 days started from the date of the decree in the instant case because petitioner/ defendant had participated in the proceedings before the trial Court."
In the first case, it was found that service was properly made on the petitioners through Registered Acknowledgment Due, which fact left the petitioners with no reason that they were not served. In the latter case, the petitioners had joined the proceedings before the Trial Court and remained absent afterwards. In the present case, the petitioner had joined the execution proceedings on 24.02.2021 and had also filed an application for setting aside the ex-parte decree that day. But his that application was not supported by any application for condonation of delay.
7. No doubt, there is judicial opinion to the fact that right to a fair trial requires affording of proper opportunity of hearing to the parti?,s, so their valuable rights could be protected. On balance, however, the doctrine of equality of arms i.e. due consideration to the complainant/plaintiff at the trial is also part of the right to a fair trial. In the case of Amar Jeet Singh v. Sant Singh reported as 2022 CLC 6 (Lahore), it was held: "The principle of equality of arms, which is a judicial construct adopted by the European Court of Human Rights, means giving each party a reasonable possibility to present its cause in such conditions a, would not put one party in disadvantage to its opponent. In other words, there must be a fair balance between the opportunities afforded to the parties involved in litigation.
The principles of fair trial, as guaranteed by Article 10A of the Constitution, art to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person."
8. Resultantly, on the basis of the above discussion, I have reached to the conclusion that no exception could be taken to the orders and judgments of both the learned Court below. Hence, the