Short facts are: ' Mst. Talat Shahnaz daughter of Ch.Ali Muhammad, through a petition made before the Chairman Arbitration Council, Ward D-Block, Municipal Committee, Okara, applied for grant of maintenance under section 9 of the Muslim Family Laws Ordinance, 1961. Notices were issued to procure the attendance of respondent Muhammad Najeeb son of Ch.Muhammad Akram, her husband, and he was tried to be served also through publication in daily "Mashriq". Since, despite citation in the Press, no appearance was made on his behalf, he was proceeded against ex parte. Arbitration Council, in his absence, was constituted by the Chairman. After recording evidence and hearing Mst. Tallat Shahnaz, the Arbitration Council awarded a sum of Rs.48,000 as maintenance for a period of one year and four months at the rate of Rs.3,000 p.m. It is stated that, when in execution of the maintenance order, the property belonging to the father of the Writ petitioner was sought to be attached, then it came to the knowledge, that an Arbitration Council has proceeded ex parte and passed the ex parte decree. Thereupon, the petitioner who was in Libya in search for his livelihood, through his father, filed a revision petition under section 9(2) of the Muslim Family Laws Ordinance before the Collector, District Okara. Failing to get relief from the revisional Court, the petitioner has invoked constitutional jurisdiction of this Court under Article 9 of the Provisional Constitution Order, 1981 praying that the order of maintenance dated 15-6-1983 passed by the Chairman Arbitration Council and affirmed in revision by the Deputy Commissioner/Collector, District Okara be declared to have been passed without lawful authority and of no legal consequence qua the petitioner. Writ Petition was admitted to examine the question whether there were sufficient grounds for proceeding ex parte against the writ petitioner and awarding maintenance at the rate of Rs.3,000 for a period of one year and four months. Under order of this Court dated 25-9-1984, the petitioner has already deposited a sum of Rs.30,000 and has also furnished security for the remaining amount. The writ petition has come up for final hearing before me today in presence of Mr.M.Pervez I.Mir, learned counsel for the petitioner and Ch.Muhammad 'sham Advocate, learned counsel for the respondents.
2. I have heard learned counsel for the parties and with their assistance have examined the record of Arbitration Council. Learned counsel for the petitioner has contended that the petitioner was in Libya in connection with his service. Processes have been issued on an incorrect addressed furnished by Mst. Talat Shahnaz. Citation in the Urdu daily "Mashriq", did not bring the case to his knowledge as the paper is neither available nor read in Libya, a far-off land. The ex parte proceedings and consequent ex parte decree for awarding mainte nance at the rate of Rs.3,000 p.m. without affording an opportunity of hearing to the petitioner, according to learned counsel for the petitioner, was obviously illegal. The petitioner has been kept in dark about the proceedings.
Had he been served in accordance with law, he definitely would have attended and defended the proceedings instituted against him. The basic order awarding maintenance against the writ petitioner obviously was incorrect, inasmuch as, the writ petitioner was not properly served. Any order passed in such circumstances against him is liable to be struck down. These very grounds were agitated in revisional jurisdiction before the learned Collector District Okara. Learned Collector without attending to the submissions made, has affirmed the order of the Arbitration Council. The petitioner was entitled to a right of defence before the Arbitration Council. Ex parte order was seriously defective and has caused grave prejudice to the rights of the writ petitioner.
3. Ch.Muhammad Ishaq, learned counsel for the respondent, however, has joined issues with learned counsel for the petitioner on the point of service of notice. Learned counsel stated that all efforts were made to serve the writ petitioner. When he could not be served in the ordinary manner, the publication in the Press was made, even then the writ petitioner never cared to put in appearance before the Arbitration Council. This deliberate omission on his part was rightly taken notice of by the Arbitration Council when ex parte proceedings were ordered against him. On the material available, the order passed by the Arbitration Council was amply justified. Learned counsel further contended that under section 9 of the Muslim Family Laws Ordinance, 1961, there was no requirement for issuing a notice to the opposite party. The order at the most, therefore, offended the rule of natural justice and in that situation since the petitioner had been heard by the revisional Court, any defect in regard to non-hearing before the primary Court stood cured. Placed reliance on Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61. Learned counsel also contended that the writ petitioner, because of his own conduct, has disentitled himself to any equitable relief in constitutional jurisdiction of this Court. He himself kept away from the proceedings despite knowledge and, therefore, when maintenance has been granted to a neglected wife he was not entitled to be heard to say that the order was defective and was liable to be set aside merely on the ground that the Arbitration Council proceeded ex parte.
4. No doubt, section 9(1) of the Muslim Family Laws Ordinance, 1961 does not speak of a notice. It reads: "9.(1) If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband."
' Rules have been framed under section 11 of the Muslim Family Laws Ordinance, 1961 known as "West Pakistan Rules under the Muslim Family Laws Ordinance, 1961". Under rule 6, within seven days of receiving an application, under subsection (1) of section 9, of the Ordinance, the Chairman by the mandatory provision of the rule is bound to call upon each of the parties to nominate his or her representative and then the party so-called upon shall nominate its representative to constitute Arbitration Council. The rules framed under the Ordinance are part of the Act. Consequently, the argument that no notice under section 9 of the Muslim Family Laws Ordinance need be issued to the opponent is devoid of any legal force. Section 9 read with rule 6 enjoins upon the Chairman to issue such a notice. In the instant case, the writ petitioner was stated to be in Libya. Any attempt to serve the petitioner at his home address was of no avail. Daily "Mashriq" is not stated to be a paper of such worldwide circulation so as to be available and read in Libya. In this view of the matter I feel that the petitioner has not been properly served by the Arbitration Council. No sufficient grounds existed, therefore, for ordering ex parte proceedings and then pass an ex parte decree for a sum of Rs.48,000 as maintenance for a period of one year and 4 months at the rate of Rs.3,000 p.m. The learned Collector hearing revision petition against the award of maintenance by the Arbitration Council has not seriously attended to the question of absence of service raised before him. As regards the contention that subsequent hearing in revision cured any alleged defect in service before the Arbitration Council I am unable to subscribe to the view propounded by learned counsel for the respondent. It was not on the basis of a rule of natural justice that a right of hearing was being claimed. A rule of hearing was being claimed on the basis of a statutory rule framed under the Ordinance. Even in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61, the august Supreme Court made a distinction between the two eventualities in regard to right of hearing based on the principle of natural justice and the absolute equirement of the statute. The Court observed:- "The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice viz. audi alteram partem (nobody is to be condemned unheard). But when, as already stated above, an absolute requirement of the statute has been defied, the order passed passed is a nullity."
' It is apparent from the perusal of the record that a decree was passed ex parte for a heavy sum of Rs.48,000 representing arrears of mainte nance for a period of one year and four months. The petitioner was entitled to a right of hearing and defend the proceedings. Record does not reveal proper legal service of the writ petitioner. In this view of the matter, the orders passed by the Courts below i.e. by Chairman Arbitration Council passing ex parte decree and learned District Collector affirming the order of maintenance, suffer from serious legal infirmity. Allowing the writ petition, both the orders are set aside and declared to have been passed without lawful authority.
Consequently, the case is remitted for redecision to the Chairman Arbitration Council, respondent No.3 who will decide it after affording an opportunity of hearing to both the parties. Writ petitioner will be free to nominat his represen tative on the Arbitration Council and raise all legal and factual pleas available under law to him in his defence. To safeguard the interests of Mst. Tallat Shahnaz, a sum of Rs.30,000 lying in deposit shall not be withdrawn by Muhammad Najib, writ petitioner, till final decision of the proceedings under section 9 of the Muslim Family Laws Ordinance, 1961. Parties are directed to enter appearance before Chairman Arbitra tion Council on 25-11-1984. Since Mst.
Talat Shahnaz is not present today, in case she fails to appear before the Chairman on 25-11-1984, the Chairman shall issue a fresh notice to her. In the circumstances of the case, parties are directed to bear their costs.