' Mst. Zartaj, respondent No. 3, hereinafter referred to as the respondent, filed an application on 24- 9-1982 against the petitioner before the Chairman, Union Committee, Ward No. 51, Lahore, claiming maintenance for herself and for three children of the parties.
2. On 17-1-1983, under the signatures of Ashfaque Mirza, Councillor and Chairman, Arbitration Council, Ward No. 51, Arya Nagar, Samanabad, Lahore, an order was made granting maintenance to the respondent at the rate of Rs.1,000 (one thousand) with effect from October, 1981.
3. The petitioner, through a revision petition, dated 30-4-1983, which was sent through registered post to the Collector, Lahore, called in question the aforesaid order of the Chairman, Arbitration Council. The revision petition was received in the Office of the Collector, Lahore, on 3-5-1983. This revision petition was dismissed as being barred by time on 4-10-1983.
4. The aforementioned orders passed by the Chairman, Arbitration Council on 17-1-1983 and by the learned Collector, Lahore, on 4-10-1983 have been assailed through the present Constitutional petition.
5. It has been urged that the order, whereby the maintenance has been awarded to the respondent, having been passed by the Chairman himself and not by the Arbitration Council, is a nullity in the eye of law. It has further been contended that no express order of ex parte proceedings was passed against the petitioner and the petitioner has been condemned unheard.
It has also been urged that the petitioner divorced the respondent and the divorce became effective on 24/25-12-1982. Therefore, no maintenance could be awarded to the respondent after 24-12-1982.
6. It is noteworthy that the Constitutional petition was admitted to regular hearing on 26-2-1984. It was fixed for hearing on 11-4-1984. None appeared on behalf of the petitioner on that day and, therefore, the writ petition was dismissed for want of prosecution. On 16-5-1984, the petitioner personally 'filed, Civil Miscellaneous No. 1400 of 1984 whereby he prayed for restoration of his writ petition. He also filed Civil Miscellaneous No. 1401 of 1984 on the same day praying for the condonation of delay in filing the restoration application. In these civil miscellaneous applications, it has been submitted that he being an Army Officer, could not obtain leave although he tried for the same several times. He was not informed by his counsel about the date of hearing on 11-4-1984.
He learnt about the dismissal of his writ petition from the office on 15-5-1984 when he enquired about his writ petition. Restoration Application filed by the petitioner has been resisted in writing by the respondent.
' Mr. Faiz Muhammad Bhatti, who represented the petitioner, made a statement that the petitioner had taken the brief from him and, therefore, he did not appear on 11-4-1984. There is nothing on the records to suggest that Mr. Faiz Muhammad Bhatti, Advocate had informed the petitioner that 11-4- 1984 was fixed as date of hearing in the case. By that time, the petitioner had not engaged any other counsel. Name of Mr. Faiz Muhammad Bhatti was mentioned as counsel for the petitioner in the cause list. He, however, did not appear before the Court on that day to say that the brief had since been withdrawn from him by the petitioner. The petitioner should, of course, have been vigilant enough to ascertain about the date of hearing after he had withdrawn the brief from Mr. Faiz Muhammad Bhatti. Nevertheless, the circumstances narrated above warrant the restoration of the writ petition. The same is, therefore, restored to its original number on payment of Rs.300 (three hundred) as costs. Learned counsel for the respondent has stated that the costs have since been received by him.
7. Learned counsel for the parties have been heard on the merits of the writ petition as well. As already observed, the validity of the impugned order, whereby the maintenance has been awarded to the respondent, has been mainly impugned on the following grounds:
(a) that the impugned order has been passed by the Chairman and not by the Arbitration Council and that, in fact, no Arbitration Council was constituted; the Chairman alone had no jurisdiction to pass the impugned order;
(b) that the petitioner has been condemned unheard. No ex parte proceedings were expressly ordered against him; the case was fixed for 17-1-1983, but the impugned order was actually passed on 12-1-1983, although it purports to have been passed on 17-1-1983; and
(c) that the petitioner had divorced the respondent and the divorce having become effective with effect from 25-12-1982, no maintenance could be awarded for the period thereafter.
8. On 19-12-1982, Tariq Haleem Chaudhary appeared as arbitrator, nominated by the respondent, while Muhammad Sadiq, P.S.I., appeared as arbitrator, having been nominated by the petitioner.
Thus the Arbitration Council stood constituted. The Chairman passed an order on 19-12-1982 requiring the parties to produce their evidence on 30-12-1982. On 30-12-1982, Muhammad Sadiq, who was nominated as arbitrator by the petitioner, made a statement that he was not prepared to act as arbitrator on behalf of the petitioner. The Chairman adjourned the proceedings to 12-1-1983 and observed that the petitioner was avoiding to put in his personal appearance and trying to prolong the proceedings. He further informed Muhammad Sadiq to intimate the petitioner about the next date of hearing, viz. 12-1-1983. The Chairman obtained the signatures of Muhammad Sadiq under the proceedings dated 30-12-1982. The petitioner, however, failed to appear on 12-1-1983 and ex parte proceedings were ordered against him. It was further directed that the case be put up on 17-1-1983. Thereafter, the statements of the witnesses produced by the respondent, including her nominee Tariq Haleem Chaudhary, were recorded and impugned order passed. These proceedings purport to have been recorded on 17-1-1983. The signatures of lqbal Ahmad Malik, a witness produced by the respondent, have been, dated by himself (Iqbal Ahmad Malik) as 12-1- 1983. May be, that on account of inadvertence he recorded the date as 12-1-1983 instead of 17-1- 1983. The fact, however, remains that ex parte proceedings against the petitioner were ordered on 12-1-1983. The Arbitration Council could validly record ex parte proceedings on the same day and pass an ex parte order against him on that very day. II is, therefore, immaterial that the ex parte proceedings were recorded on 12-1-1983 or 17-1-1983. It is thus concluded that:
(a) the Arbitration Council was duly constituted; and
(b) ex parte proceedings were validly ordered against the petitioner as his nominee refused to act as arbitrator on 30-12-1982 but undertook to inform the petitioner of the next date of hearing viz. 12- 1-1983. On the latter date, the petitioner failed to put in appearance. The Arbitration Council was, therefore, justified to proceed ex parte against the petitioner and to pass the ex parte order granting maintenance to the respondent 3. The impugned order, therefore, does not suffer from any jurisdictional defect.
'We cannot, however, lose sight of the fact that the petitioner pronounced divorce on 25-9-1982. It has been held, in Writ Petition No. 2554 of 1983 between the same parties, that the divorce became effective on 25-12-1982. The impugned order regarding maintenance, therefore, shall not be operative after the expiry of period of Iddat, viz, three months after 25-12-1982.
9. In the light of above conclusions, this Constitutional petition is allowed only to this extent that the impugned order shall not be operative after the expiry of the period of Iddat viz, ninety days after 25-12-1982.
' There shall be no order as to costs.