1. Through this Constitutional petition, the petitioner has called in question the order dated 3-10-1988 passed by the learned Additional District Judge, Rawalpindi whereby he accepted the appeal filed by Mst. Bilqees Siddiqa respondent No.2, set aside the ex parte decree dated 26-1-1986 passed in a suit for restitution of conjugal rights filed by the petitioner and remanded the case to the learned Judge Family Court for a fresh decision on merits.
2. The only point urged by the learned counsel for the petitioner is that the learned Additional District Judge misread the evidence while coming to the conclusion that respondent No.2 was not served in the suit. In this connection, he has drawn my attention to the order dated 28-4-1986 which purports to show presence of respondent No. 2 before the Chairman Union Council. It may be mentioned that the Chairman was proceeding with an application for grant of maintenance allowance filed by respondent No.2. The said order further shows that the party present obtained the relevant copies and also inspected the file. As the file contained certain applications filed by the petitioner containing a reference to the ex parte decree it was, therefore, argued that respondent No.2, must have acquired knowledge about the ex parte decree on 28-4-1986. Hence the application for setting aside the ex parte decree filed on 22-7-1986 was clearly barred by time.
3. It was further submitted that the view of the learned Additional District Judge that on 28-4-1986, in fact, Fariq-i-Doem (the petitioner) was present before the Chairman was erroneous because the petitioner was present in his College on the said date as is borne out from the certificate issued by the Principal of the College and attached with the petition as Annexure `C'.
4. I have gone through the impugned order and the documents attached with the writ petition. It appears that both the Courts below had examined the matter on the premises that the period of limitation for filing an application to set aside an ex parte decree was 30 days. It has escaped the notice of the Courts below that the parent Act i.e. The Punjab Family Courts Act 1964 does not limit the period to 30 days. The subsection (6) of section 9 of the Act reads as under:- "In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within reasonable time of the passing thereof to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, on such terms as to cost as it deems fit, make an order for setting aside the decree as against him, and shall appoint day for proceeding with the suit provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendant also."
5. The period of 30 days for setting aside the ex parte decree has been provided under rule 13 of the West Pakistan Family Courts Rules, 1965. The said rule is reproduced below for ready reference:- "Ex parte decree or proceedings may, for sufficient cause shown, be sc: aside by the Court on application made to it within 30 days of the decree or decision."
6. Obviously the provisions of the rule 13 come in conflict with the provisions of subsection (6) of section 9 of the Punjab Family Courts Act which merely lays down that the application for setting aside an ex parte decree may be filed within the reasonable time of the passing thereof. Hence to the extent of the inconsistency the rule has to yield to the provisions of the parent Act. I, therefore, hold that the provision of rule 13 regarding the period of limitation is ultra vires the provisions of subsection (6) of the section 9 of the Punjab Family Courts Act. In view of the legal position explained above, even if it is assumed that it was respondent No.2 and not the petitioner who had appeared before the Chairman Union Council on 28-4-1986 and had acquired knowledge about the ex parte decree passed in the suit for restitution of conjugal rights, the application for setting aside the decree tiled on 22-7-1986 did not suffer from unreasonable delay. The law in its own wisdom used the expression `reasonable time' in subsection (6) of section 9 of the Punjab Family Courts Act. The object is that in family cases, the decision should ordinarily be made on merits and ex parte decrees should not be allowed to stand by mere efflux of time unless the aggrieved party is grossly negligent in approaching the Court for having it set aside. The said provision of law has to -be liberally construed so as to afford a remedy to an aggrieved party and to have adjudication of matters on merits. Moreover, the learned Additional District Judge has thoroughly examined the evidence and come to a definite finding of fact that the address of respondent No.2 given in the suit for restitution of conjugal rights was wrong; that she was never served in the case and that for the first time she acquired knowledge about the ex parte decree on 3-7-1986 and filed an application for setting aside the ex parte decree just after 19 days. The said finding of fact cannot be disturbed by this Court in the exercise of the Constitutional jurisdiction particularly when no misreading or non-reading of evidence has been, Tinted out. The certificate Annexure `O' cannot be taken into consideration as it was never produced before the Courts below and was obtained on 3- 12-1988, long after the decision of the learned Additional District Judge.
7. The upshot of the above discussion is that there is no merit in this petition which is dismissed in limine.
8. H.B.T./M-1440/L