' Mst. Farakh Sultana respondent No.3 herein, moved an application under section 9 of the Muslim Family Laws Ordinance, 1961, against the petitioner before the Chairman, Halqa No.56, Jehangir Park, Lahore (respondent No.1), for grant of maintenance allowance. The petitioner was proceeded against ex parte and respondent No.1 by his order dated 28-5-1984 fixed the maintenance allowance at the rate of Rs.700 per month and awarded her Rs.22,750/-, as arrears for the period from 10-9-1981 to 28-5-1984. The petitioner went in revision but the learned Collector as a revisional authority, dismissed the same on 30-7-1985 as time-barred. The petitioner has now invoked writ jurisdiction of this Court. Before the Collector, the petitioner raised the plea that he was not served in accordance with law and therefore, ex parte order was not called for. He further urged that the respondent was divorced by him on 15-10-1981 and a written notice thereof was also sent to the Chairman. His contention thus, was, that as the relationship of husband and wife did not exist between the parties, respondent No.1 assumed jurisdiction without lawful authority. In this behalf, the petitioner relied upon a copy of the plaint dated 26-1-1983 (Annexure 'B') filed by the respondent against the petitioner in the Civil Court, Lahore for recovery of the value of her dowery.
In para No.2 of the plaint it is categorically stated that the respondent was divorced by the petitioner on 14-3-1982. The revisional authority did not record any finding on the question of divorce but so far as ex parte proceedings are concerned. It maintained: - "Serious efforts were made for the procurement of the petitioner's attendance before the Chairman Arbitration Council. Acknowledgement due letters were despatched at his known address. A proclamation was also made in the national dailies. Despite this, the present petitioner did not appear before the Chairman Arbitration Council. I, therefore, am inclined to hold the view that the petitioner intentionally avoided to appear before the Chairman Arbitration Council. For the same reason I consider that the delay in filing the revision petition is not condonable."
2. I have heard the learned counsel for the parties and examined the record. The learned counsel for the petitioner has reiterated the stand taken by him before the revisional authority. Relying on Mukhtar Ahmad v. Muzaffar Qadir and others PLD 1978 Lah. 232, he argued that it was obligatory for the revisional authority to have thoroughly examined the premises on which the ex parte proceedings were founded and further made a probe into the question of Chairman's jurisdiction to entertain the respondent's application for grant of maintenance allowance. In his submission, the revisional authority did not properly advert to this aspect of the case, dealt with it in a perfunctory manner and thus, failed to exercise jurisdiction lawfully vested in it.
3. In reply, on behalf of respondent No.3 it is argued that notice of Talaq in terms of section 7 of the Ordinance, was not served on the Chairman of the Union Council, and thus, Talaq did not become effective. Reliance was placed on the case of Muhammad Salahud Din Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583. Her learned counsel further submitted that there is no estoppel against law and thus, the admission made in the plaint by respondent No. 3 did not preclude her from raising the plea that there was no valid Talaq. He canvassed the sustenance of the ex parte proceedings and urged that the petitioner having been justifiably proceeded against ex parte, the learned Collector was not bound to examine plea of Talaq. From the perusal of the record I find that the application (Annexure 'C') for grant of maintenance allowance, was filed by respondent No.3 on 13-2-1984 and on 27-2-1984 when the matter for the first time came up for consideration before the respondent No.1 (Annexure C/1) he recorded proceedings on the order sheet to the effect that the petitioner could not be served; that the Postman's report showed that the petitioner was out of station and the date of his return was not known. He adjourned the case to 12-3-1984.
The copy of the order sheet further indicates that on 12-3-1984, the Chairman ordered service for 2- 4-1984, through publication. This publication appeared in the daily 'Nawa-i-Waqt' (Annexure 'E', requiring the petitioner to appear before the Chairman on 7-5-1984. As on that date, he did not enter appearance, ex parte proceedings were conducted against him. This was followed by ex parte order dated 28-5-1984.
4. It is, obvious, that only one notice by post was sent to the petitioner. Before resorting to substitute service by publication, no second attempt was made to serve him personally. He was in the service of Bahawalnager Sugar Mills Limited, Chishtian. If he was out of station, his temporary absence did not amount to evasion. Unless it was found that the petitioner kept out of the way for the purpose of avoiding service or for other reasons he could not be served in the ordinary way, service through publication was not justified. A defendant on whom substituted service is effected, despite such service, can show, that he did not have knowledge of the proceedings filed against him by the opposite party. Evidently, the pcstal envelop was never presented to the petitioner for service and therefore, it cannot be said that he was aware of the respondent's application before the Chairman. The learned Collector was wrong in holding that serious efforts were made to procure the petitioner's attendance. In fact his this conclusion does not find support from the material on the record. In the circumstances of the case service by publication does no satisfy requirement of law and cannot be upheld.
4-A. It is to be remembered that the existence of relationship of husband and wife, was the foundation of assumption of jurisdiction by respondent No.1 under section 9 of the Ordinance.
Before the Chairman, the petitioner was proceeded against ex parte. Thus, there was no occasion for him to raise issue of separation between the parties, before that forum. However, in revision he specifically urged that he had divorced respondent No.3 and the application for recovery of maintenance, was filed by her two years after the finalisation of Talaq. His this plea finds support from the contents of respondent's plaint, which, as already stated, incorporates her categorical admission that she was divorced on 14-3-1982. In the memorandum of revision (Annexure 'H'), the petitioner further asserted that notice of Talaq was sent to the Chairman. All these facts, if proved, went to the jurisdiction of the latter. If it was established that divorce between the parties had become absolute, the Chairman had no jurisdiction to entertain the respondent's application for grant of maintenance. Needless to mention that an issue affecting the jurisdiction of the Tribunal can well be raised before the higher forum. It was, therefore incumbent upon the Collector to have either himself adjudicated upon the question of divorce or sent back the case to the Chairman, to record his finding in this behalf. He only noticed the contentions of both the sides but did not give his own finding on that controversy. The admission in the plaint (Annex. B) has significance and is different from the admission generally. Of course, it was for the respondent to explain her admission to show that it was wrong and made in ignorance of her legal rights. This aspect of the case needed a serious consideration of the revisional authority and should not have been slipped over lightly.
5. In the precedent relied upon by the learned counsel for the respondent, it is laid down that Talaq becomes effective, three months after its notice to the Chairman and if the husband does not give such a notice, Talaq does not become absolute. But it has already been observed that the Collector did not give any finding in this behalf. The question of service of notice is a question of fact. It cannot be adjudicated upon without recording evidence. It is, therefore, not possible to record a finding on this issue in these proceedings.
6. It is, obvious, that the learned Collector refused to interfere with the order of the Chairman and dismissed the petitioner's revision on an incorrect assumption of facts. Further he failed to advert to the legal proposition involved in the case and thus, his refusal to exercise jurisdiction, vesting in him culminating, in the impugned order can be removed through judicial review. This writ petition is, therefore, accepted, the Collector's order dated 30-7-1985 is declared to have been passed without lawful authority and of no legal effect. Consequently, the revision petition shall be treated as pending and disposed of afresh in accordance with law. The parties are left to bear their own costs.