' This Constitutional petition raises questions which, to say the least, are somewhat curious.
2. Petitioner, till lately, was the husband of the respondent No,1. Family Suit No,406/86 was filed by the respondent No,1 on 20-4-1986 in the Court of the VIIIth Civil and Family Judge, Karachi (West) for maintenance of herself and her son, Rehan, as from August, 1982 and April, 1983, respectively, till April, 1986 at the monthly rate of Rs,700 for the mother, Rs,400 for the child. Further maintenance, at the same rates, till the decision of the suit as well as for future was also prayed. As per the Bailiff's report, dated 28-4-1986, petitioner contacted him in the Court compound and enquired about the process, identifying himself as Nazim. The Bailiff checked his card and on satisfying himself about his identity delivered the process to him on obtaining due signatures. Subsequently, Mr. S.M. Ismail Shah, Advocate, filed power for the petitioner but did not appear on 27-5-1986 whereafter the case was adjourned for 1-7-1986 for submission of written statement. On 8-7-1986 the Family Court passed orders that the case shall proceed without written statement. On 6-8-1986, plaintiff's statement was recorded and the side of the defendant was closed, as the latter had failed to appear. The suit was decreed as prayed on 30-8-1986. Thereafter, the same learned Advocate preferred an appeal on 27-11-1986 but did not appear on 111-1987 when such appeal was dismissed.
Respondent No,1 applied for execution on 5-5-1988 and the petitioner was served with its process on 9-5-1988. He applied for setting aside the ex parte decree on 30-5-1988.
3. In the above-said application for setting aside of the ex parte decree the peculiar plea was that the petitioner had never engaged Mr. S.M. Ismail Shah, Advocate, that the Vakalatnama filed by the said Advocate was a forged one, in collusion with the plaintiff in the suit and that the petitioner- defendant (hereafter, where relevant, referred to as defendant) came to know of the proceedings only on 9-5-1988, on service of process in the execution. In reply the respondent-plaintiff (hereafter, where relevant, referred to as plaintiff) maintained that the petitioner had not disclosed all the facts and that the above referred appeal was also taken which was dismissed. This also was controverted in the re-joinder of the defendant wherein he denied having engaged the said Advocate or authorised the filing of such appeal. Certified copy of an application under section 476, Cr.P.C. Filed by the defendant on 30-5-1988 itself, has been brought on record here, wherein action against the referred Mr. S.M. Ismail Shah, Advocate, is also sought on grounds mentioned in a purported supporting affidavit. No separate affidavit seems to have been filed and the only affidavit brought on record here does not mention as to which application it supports, the one pertaining to the ex parte decree or that under section 476, Cr.P.C., limiting itself to an averment that in case the attached application is not granted" the defendant would be seriously prejudiced.
The learned IV Civil and Family Judge, Karachi (Central), who disposed of the application for re-call of ex parte proceedings, did not believe the defendant's version, dismissed such application and expressed surpise as to why the defendant has not taken any action against the plaintiff or the said Advocate". Apparently, therefore, the application under section 476, Cr.P.C., was not argued or pressed before the learned Judge.
4. Against the order of dismissal of the above-said application Family Appeal bearing No,70 of 1988 was taken to the District Judge (Central) Karachi and was dismissed by an order, dated 24-4-1989.
That learned Judge compared the signatures on the process delivered by the Bailiff, on the Vakalatnama in favour of Mr. S.M. Ismail Shah, Advocate, and on the memo of appeal, earlier taken, with the signatures of the defendant on his identity card and the Nikahnama and found the same to be similar.
5. To challenge the aforesaid concurrent findings this petition has been brought. I have examined this case closely for it is not inconceivable that an unscrupulous litigant may successfully circumvent and abuse the law by stooping to contrivances which, notionally, may keep the other litigant in the lis completely unaware of proceedings. This, however, does not seem to be the case here and it is on reaching such conclusion that I had dismissed this petition through a short order, dated 10-7-1989 reasons where for are detailed herein.
6. For one thing, a person in the averred position of the petitioner would not leave such an Advocate, as the respondent No,2 here untouched and unscathed for such a long time. The application under section 476, Cr.P.C. Before the learned Family Court besides being completely unceremonious and unsupported by due affidavit was not even pressed. On my query Mr. Farman A. Hashmi admitted that no grievance for lack of disposal of the application under section 476, Cr.P.C., was made in the memo. Of appeal nor was a similar application made before the appellate Court. On like query from the learned Advocate it was revealed that no action in the Sind Bar Council, as well, which is the sole Tribunal for regulating the conduct of Advocates, was made by the petitioner against the alleged recalcitrant Advocate. These are serious omissions and cannot be meaningless. Lack of ventilation of a terrible grievance of the avowed nature, if any, against the main culprit, if any, is vital circumstantial evidence which thoroughly negatives the tall pleas involving lack of defence. It is a time honored principle that while men may lie circumstances do not. Such circumstances, here, indicate the petitioner's real frame of mind, which is at complete variance with his averments.
7. Next is the question, which borders on facts and on close examination of facts it has been found, and in two competent jurisdictions, that the petitioner did sign the vital papers, which resulted in a decree against him being passed in the first instance and confirmed in appeal in the other. Any controversy as to these facts is not lightly open to interference in Constitutional jurisdiction, unless it is B shown that it is devoid of supporting record or perverse, which the petitioner has failed to show. In the same context it is urged that all modes of process, as contemplated by section 8 of the Family Courts Act, 1964 were not resorted to, thereby rendering the proceedings bad and of no legal effect. This question, which again is one of fact, was not raised in any of the two forums, whose orders are questioned. It is thus not open to scrutiny. At any event, if law allows more than one modes of service of process, effective service in any of the modes, if proved, is good service.
8. Coming to merits, again in a tell-tale manner, the petitioner has not questioned the facts, which gave rise to the ex parte decree against him. None of the petitioner's applications or affidavits or the memo of appeal' or even the memo of this petition calls in question the factual background on which the Family suit was premised. It is no doubt true that for seeking the recall of ex parte orders merits are not directly relevant. However, in cases where serious injury, based on clear injustice, is shown that is one of the circumstances which may weigh with a Court in favorably adjudicating upon a plea to re-open ex parte proceedings. On the contrary, in the memo of the petition it is alleged that the respondent No,1 filed the suit in question while she "was staying temporarily with her parents ." I have underlined the word "temporarily" because it was added subsequently in hand and is distinguishable from the typed version in the petition. Learned counsel for the petitioner on 4-7-1989 brought on record some documents, in which is comprised a notice of petitioner's Advocate, dated 19-2-1989 wherein, on behalf of the petitioner, it was alleged that the respondent had left the petitioner "during the month of September, 1986". The family suit, as seen above, was filed on 20-4-1986, on averments that the respondent was turned out by the petitioner in August, 1982. In this factual background, it is open to serious doubt that the respondent left the petitioner with her own free-will in September, 1986 as alleged in the above referred notice addressed on behalf of the petitioner and brought on record, at his instance, as aforesaid.
9. However, there is one matter regarding which an observation has to be made and a just course of action is to be suggested. It is this; in the correspondence which has been brought on record, on behalf of the petitioner, on 4-7-1989, the admitted position is that the respondent No,1 has been divorced on 11-3-1987 which under the Family Laws Ordinance, 1961, became effective on 11-6-1987.
It is, therefore, clear that the respondent No,1 cannot take benefit of the impugned decree as regards her own maintenance after 11-6-1987 and to this position her counsel has conceded. It is, therefore, recorded that while maintenance for the minor Rehan may be claimed in continuity execution proceedings shall not be enforced in relation to the maintenance of the respondent No,1 at the rate of Rs,700 per month beyond 11-6-1987, when she ceased to be petitioner's wife and stood disentitled from seeking any maintenance from him.
10. With the above observation, this petition, being devoid of merit, stands dismissed, as reflected in the short order passed on 10-7-1989.