FARAH JAMSHED, J:- This judgment is intended to address the writ petition submitted under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, by the petitioners, Mst. Naseem Akhtar and Mst. Bhag Bhari with the following prayer: "It is, therefore, prayed that upon acceptance of the present writ petition, the impugned judgment and order dated 18/10/2024, issued by the learned Additional District Judge-I, Charsadda, and the judgment and order delivered by the Senior Civil Judge Family Court Charsadda on 06/032024, may be set aside. Furthermore, it is requested that the case be remanded to the trial court for determination of the suit on its merits, following the recording of both pro and contra evidence. Any additional relief deemed appropriate by this Honourable Court in the circumstances of the case may also be granted in favor of the petitioners against the respondent, notwithstanding that such relief has not been specifically requested herein."
2. The pertinent facts necessary for the adjudication of the present petition an as follows: Respondent No. 1 filed a suit against the petitioners seeking recovery of dower, which was agreed as a house measuring 111/2 marlas and 7 tola of gold ornaments. The petitioners, as defendants, were duly noticed and served through registered post A.D., but due to their absence, they were proceeded against ex-parte as per the order dated 02/07/2022. Respondent No. 1 subsequently presented her ex-parte evidence, leading the learned trial court to allow ex-parte judgment and decree on 28/07/2022.
3. Being aggrieved, the petitioners filed an application to set aside the ex-parte decree, however, it was dismissed vide order dated 06/03/2024. The petitioners thereafter appealed to the learned Additional District Judge-I, Charsadda, which was also dismissed by the learned appellate court as per judgment dated 18/10/2024, which is now under review of this writ petition.
4. The learned counsel for the petitioners argued that respondent No. 1 has improperly included them in the suit being the first wife and mother of deceased Muhammad Ijaz, contending further that proper service was also not affected to ensure their presence before the trial court. Learned counsel argued that although Muhammad Ijaz died issueless, a suit for recovery of dower cannot validly proceed against the deceased's mother and first wife while excluding other legal heirs and this fact was overlooked by the learned trial court, resulting in an unjust ex-parte decree against the petitioners. To substantiate his arguments, he also referred to inheritance mutation of deceased, Annex 'O' listing other legal heirs besides petitioners. Additionally, the learned counsel emphasized that the petitioners are pardanasheen ladies whose significant rights are at stake; thus, the ex-parte decree should be set aside to afford them the opportunity to present their defense.
5. Conversely, the learned counsel for the respondent No.1 contended that proper service was conducted, as evidenced by the return receipt of A.D. The respondent's counsel further asserted that the petitioners deliberately absented themselves during the trial and subsequently filed the application for setting aside the ex-parte decree to obstruct execution proceedings, requesting that the writ be dismissed with associated costs.
6. Upon thorough examination of the record and taking into account the insights from learned counsel for both parties, it is noted that respondent No.1, Mst. Shehron, initiated a suit for the recovery of dower against the petitioners, who are the first wife (Mst. Naseem Akhtar) and the mother (Mst. Bhag Bhari) of the deceased Muhammad Ijaz. Inheritance mutation of deceased Muhammad Ijaz is also available on record suggesting other legal heirs besides present petitioners but they were not arrayed as a party before the learned trial nor this element was taken into account or determined by the learned trial court.
7. It is pertinent to recognize that the obligation to pay dower rests solely with the husband or an individual who agrees to share this responsibility through a signed deed, and this obligation cannot be unilaterally imposed on another party. In respect of same proposition, the apex court in case of "Fawad Ishaq and others vs Mst. Mehreen Manoor" (PLD 2020 Suprem e Court 269) held that: "The learned Judge of the High Court was aware that the Property was owned by Mst. Khurshida but had agreed with the decisions of the Subordinate Court because, firstly, the wives of Mst.
Khurshida's other sons had been given plots of "2 kanal each", secondly, she did "not question Nikah Nama" and, thirdly, her husband was "guarantor" of the Property. With respect to the learned Judge, none of the three reasons which prevailed with him (and which had persuaded the learned Judges of the Subordinate Courts to respectively decree and uphold the decree) are sustainable in law. If the spouses of the other sons of Mst. Khurshida were given land it was inconsequential since every marriage and its terms are independent from every other and there is no legal concept of parity. The other cited reason, that Mst. Khurshida had not questioned (by which we presume the learned Judge meant challenged in court) the contents of the Nikahnama, was irrelevant, since the matter did not concern her; Mehreen and Mansoor were sui juris and had agreed to get married on certain terms, which could not unilaterally be imposed on Mst. Khurshida who had not executed or signed the Nikahnama, therefore, Mst.
Khurshida was not obliged to challenge it. Moreover, it was for Mehreen to establish that Mst.
Khurshida had agreed to give the Property as dower to her, however, there was no evidence that she had agreed to do so. The obligation to pay dower was incurred by Mansoor and remained his to fulfil. As regards the reason that Mst. Khurshida's husband was a guarantor of the Property it has no legal basis since a husband has no right to his wife's property nor can he 'guarantee' or encumber it without her permission."
8. In the present situation, respondent No. 1 filed her suit for recovery of dower post the death of her husband. Even recognizing that this dower is categorized as an unpaid debt recoverable from the legacy of the deceased, the legitimacy of suit brought against one set of legal heirs, while excluding others being necessary and proper party, remains in question The Muhammadan Law has explained that "...if the dower is not paid, the wife and after her death, her heirs, may sue for it" and in respect of disputes regarding dower, the following observations are mentioned in Baillie's Digest of the Muhammadan Law: "Disputes regarding the dower may take place between the married parties themselves in their lifetime, or between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors".
9. This important aspect of legacy and legal heirs of deceased husband was overlooked by the learned courts below when ex-parte decree was passed in favor of the respondent No.1 , and subsequently while deciding the application of petitioner to set aside the ex-parte decree.
10. Regarding the service of the petitioners, an examination of the impugned order dated 06/03/2024, of the learned trial court reveals that "publication in daily" is cited as an appropriate substituted service and a rationale to non-suit the petitioners.
However, the learned counsel for the respondent conceded, when questioned by this court, that no notice was published in any daily publication and that substituted service was conducted via registered mail with acknowledgment of receipt. Record is also silent to suggest that besides intimation through registered AD, the learned trial court adopted the process as provided in section 8 of the West Pakistan Family Court Act, 1964 for "intimation of defendant", before proceeding ex- parte against petitioners. Furthermore, the impugned order indicates that the transfer of execution proceedings to Pindighap may have prompted the petitioners to seek the annulment of the ex- parte decree. Nevertheless, in the absence of all legal heirs of deceased, being necessary party, as previously stated, the suit in its current form is bad; therefore, the ex-parte decree issued against the petitioners is even otherwise not legally sustainable.
11. Consequently, in light of the aforementioned discussion, the writ petition is hereby granted, and the orders of the lower courts are set aside. The application to set aside the ex-parte decree is accepted on cost of Rs.5000/, requiring petitioners to pay to the respondent on the first day of their appearance before the learned trial court. The case is remanded back to the learned trial court with instructions to proceed with the trial in accordance with the law and decide the same on its merits after recording of pro and contra evidence.