The relevant facts for the decision of this Constitutional petition are that the petitioner and respondent No. 1 were married in accordance with Muslim Rites on 15-7-1980 and three children, respondents Nos. 2 to 4, were born out of this wedlock but unfortunately the relations between the spouses became strained. The respondent No. 1 filed a suit for recovery of maintenance. The petitioner resisted the same. The trial Court framed the issues and fixed the suit for evidence of the plaintiff, who then moved application for impleading the children, respondents Nos. 2 to 4, as plaintiff; to the suit and amendment in the quantum of the maintenance allowance from Rs. 4,000 to 14,000. The petitioner sought time for submission of reply to this application but thereafter did not appear. The application was partially allowed vide ex parte order dated 21-12-1991. The result was that the respondents Nos. 2 to 4 were allowed to be impleaded as plaintiffs Nos. 2 to 4 while the counsel for the plaintiffs did not press the application as to the increase in the quantum of maintenance. The suit was thereafter adjourned for 6-1-1992 for submission of the amended plaint.
The counsel for the petitioner appeared and he was directed to file written statement on 14-1-1992.
This was not done. The learned counsel sought further time to file the written statement to the amended plaint. The suit was accordingly adjourned to 3-2-1992 but on this date nobody appeared on behalf of the petitioner till the closing hours, therefore, he was proceeded ex parte.
The petitioner moved an application for setting aside ex parte proceedings on 14-9-1992. The plaintiffs contested the same. The learned trial Court after hearing the arguments proceeded to dismiss the petition vide order dated 8-6-1994. Hence present writ petition, which was admitted to hearing. The plaintiffs have appeared through Mr. Hakam Qureshi, Advocate and contested the petition.
2. The learned counsel for the petitioner argued that during February 1992 his client was posted at Gilgat in Northern Area which is `special conditions' area, therefore, he could not personally appear on 3-2-1992. The learned counsel has referred to sections 10, 11 and definition of Special Areas as contained in Soldiers Litigation Act, 1925. It is added that the learned counsel who used to appear on behalf of the petitioner, went abroad for higher studies, therefore, she also could not appear.
The moment petitioner came to know of ex parte proceedings he moved the application.
3. On the other hand, the learned counsel for the respondents-plaintiffs Nos. 1 to 4 argued that petition raises disputed question of facts which cannot be gone into in the Constitutional Jurisdiction. It is added that no writ petition is competent against the interim order passed by the Family Court. The next submission is that neither there was anything on record before the trial Court to justify the absence of the petitioner nor on the file of this Constitutional petition. It is submitted that even the affidavit of the counsel representing the petitioner in the trial Court was not filed. The arguments are summed up with the submission that the conduct of the petitioner is that he is avoiding to discharge his legal and moral obligations. He has deprived not only the respondent No. 1 of maintenance but also to the minor children.
4. The learned counsel for the petitioner while summing up the arguments submitted that when the order is illegal this Court can interfere in Constitutional petition and in this behalf he has referred to (Mst.) Shereen Masood v. Malik Naseem Hassan Judge, Family Court, Lahore and another (1985 CLC 2758) and Syed Muhammad Raza Shah v. Sayeda Salina Gilani and another (PLD 1976 Lahore 1015).
The arguments are concluded with the submission that apprehension of the plaintiffs that the petitioner is prolonging the payment of maintenance allowance can be warded off by issuing a direction to the trial Court to conclude the trial expeditiously.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, provisions of law and precedents. The petitioner in the application Annexure `C' moved by him for setting aside ex parte proceedings clearly pleaded that it was not possible for him to secure leave para. 2 of the same reads as under:--- Thereafter, in para. 5 it was pleaded that the absence was not intentional but on account of circumstances explained above. The trial Court was misadvised to decide the application after hearing the arguments especially when it was to dismiss the same. The petitioner having pleaded that he could not secure leave in those days and given some explanation was entitled to an opportunity to prove his contentions. This could only be done by framing issues and allowing the parties to lead evidence. It was wrongly observed that there is no explanation why the learned counsel for the petitioner did not appear on 3-2-1992 and why the petitioner was absent. The petitioner has stated thereasons and whatever their worth was it could only be decided after opportunity to the petitioner to substantiate the same. I may make it very clear that these observations do not mean that the petitioner had justified his absence but is being observed is that whatever its worth was he should have been allowed a chance to prove the same before discarding his plea.
6. Now coming to the legal objection that the writ petition is not competent against an interim order. The case of Mst. Shereen Masood (supra) is a complete reply. On the other hand, the learned counsel for the plaintiffs could not substantiate his arguments with reference to any precedent.
Even otherwise after holding that the order is illegal it is in nobody's interest that the writ petition should be dismissed being incompetent. The result would be that ex parte decree would be set aside by the appellate Court on this ground alone and case remanded to the trial Court for fresh decision. This would be only involving in superficial technicalities rather than affording justice to the parties.
7. This case has another important feature i.e. That plaintiffs Nos. 2 to 4 are minors. The Court while dealing matters in respect of minors exercises parental jurisdiction, therefore, I am under legal obligation to cater their needs and safeguard their interest rather than get them locked in endless litigation in an effort to observe the strict procedure. They need funds at this hour not only for food and clothing but also for education, therefore, a penny today for them is more precious than a pound after couple of years. It seems that this litigation has been prolonged on account of unreasonably stiff attitude of the petitioner and respondent No. 1. The suit was filed in 1988. The respondents, minor children were impleaded as plaintiffs on 21-12-1991. The ex parte proceedings against the petitioner were ordered on 3-2-1992 while his application for setting aside ex parte order was dismissed in June 1994. 1 have given this data to show that it is not in the interest of minors to bother about the strict compliance of provisions of law which would further delay the grant of maintenance to them.
8. The technicalities cannot be allowed to defeat the ends of justice. I am fortified in my view by the following passage from the judgment of Mr. Justice A.R. Cornelius, Chief Justice, in the case reported as Imtiaz Ahmad v. Ghulam and 2 others (PLD 1963 SC 382):--- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English System of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a stem that gives to every person what is his."
"The proposition could hardly be disputed that the principal object behind all legal formalities is to, safeguard the paramount interest of justice. In fact while considering importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called `Jurisprudence of Conception' a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irresistible conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice:'
"It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction.-It may be that the maxim that was borne in mind was rather fiat justitio rual coelum, that is to say let justice prevail though the heavens should fall.
9. This is not all. This Court is vested with supervisory jurisdiction under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:--- "203. Each High Court shall supervise and control all Courts subordinate to it:"
The object of vesting the powers of supervision in the High Courts seems to be to keep administration of justice pure and transparent. The High Court while exercising supervisory powers can correct the failures, faults, deriliction of duty, laches, defects in jurisdiction, denial of justice, bias or disability. These are only some of the instances as tabulated in the case of S. Zahid A.I v. Mst.
Mubarak Bano (PLD 1976 Karachi 68). The power can be exercised suo motu or when the defect is brought to its notice. Reference in this behalf can also be made to the case of S. Zahid A.I (supra), Mst. Khadija Bibi v. Abdul Wahid (1980 CLC 2145), Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. And another (PLD 1984 Lah. 69), Abdul Rehman v. Mst. Chaman Ara (PLD 1972 Kar. 164), Mst.
Farida Pa(rwin v. Qadeeruddin Ahmad Siddiqi (PLD 1971 Kar. 118), Mst. Gaman v. Taj Din (PLD 1968 Lah. 987) and Mst. Safia Begum v. Abdul Hamid (PLD 1968 Lah. 1358).
10. The conclusions arrived at by the Court below are based on erroneous facts, therefore, the impugned order is illegal, without lawful authority and liable to be set aside in exercise of jurisdiction under Article 203 of the Constitution. I am fortified in my view by the decision in the cases of SA. Matin and another v. Province of Sindh (PLD 1976 Kar. 36) and Government E of West Pakistan v. Begum Agha Shorish Kashmiri (PLD 1969 SC 14), where it was held that action taken upon extraneous or irrelevant consideration is also not action in accordance with law.
11. The upshot of the above discussion is that this petition is allowed. The impugned order dated 8- 6-1994 of the respondent No. 5 is set aside subject to payment of Rs. 5,000 cost by the petitioner.
The result is that the learned Judge Family Court would grant one adjournment for submission of the written statement to the amended plaint and decide the suit expeditiously in any case before 31st May, 1995 even if it has to hold day to day proceedings. The parties are directed to appear before the trial Court on 13-3-1995.