' Through this petition, the petitioner seeks setting aside the ex parte order dated 13-5-1997 and judgment and decree dated 31-5-1997 passed by learned IVth Civil Family Judge, Karachi (East).
2. The facts, precisely, of this petition are that respondent Mst. Ambreen filed suit for dissolution of marriage by way of Khulla against the petitioner, her husband, Muhammad Munaf, on 13th March, 1997. It was inter alia, contended that petitioner married with the respondent on 10-3-1988 and prompt dower of Rs,500 was paid then and there. Irrespective of this, parents of respondent gave articles worth Rs,7,50,000 in Jaheez to the respondent so also the relatives and friends of her parents gave articles, goods, clothes and ornaments worth Rs,50,000. Though in para. No,4 of the suit respondent has mentioned no amount of whatever as a worth of the articles given to her by the petitioner, his relatives and friends but in affidavit, she has disclosed that the said articles were worth Rs,2,00,000. It is further averred that respondent took all the articles to the house of in-laws and she started living with the petitioner in accordance with Sharia. Since the very same time the petitioner neither provided any maintenance nor accommodation to the respondent and has always been forcing her to bring entire maintenance from her parents which she used to bring. The further facts disclosed that on account of non-maintenance and mis-statement made by the petitioner about his business etc., there erupted a severe version and hatred in the mind of respondent against the petitioner and the relations went to such an extent that it became impossible for the spouses to live within the limits prescribed by Almighty Allah, as such she offered to forgo her entire maintenance amount and claimed for dissolution of marriage on the basis of Khulla.
3. After admission of the suit, the summons were directed and the matter was fixed on 31-3-1997, on which date bailiff returned the process unserved and mentioned that petitioner refused to receive the same and the trial Court postponed the matter to 4-4-1997 and ordered for the service by way of pasting. In response the bailiff pasted the summons at the door of the petitioner in presence of two witnesses whose copies of N.I.C. Were also annexed with endorsement but the petitioner did not prefer to attend the Court and file written statement. The trial Court examined the bailiff who stated the above facts and passed an order on 4-4-1997, holding the service good upon the petitioner and fixed the matter for filing of written statement on 16-4-1997. On this date, petitioner was called absent and no intimation of any sort was received from his side till 2-15 p.m.
As such proceedings were declared ex parte against him and the matter was fixed on 22-4-1997 for filing affidavit in ex parte proof by the respondent. The respondent filed such affidavit on 22-4- 1997 and learned trial Court decreed her suit pronouncing dissolution of marriage on 31-5-1997.
4. I have heard learned counsel for the petitioner as well as learned counsel for the respondent at length and have gone through the impugned orders and perused the record.
' It is contended by the petitioner's counsel that learned Family Judge granted Khulla, to respondent Ambreen in hurriedly manner within a period of two months from the filing of the suit, without notice to him as required under section 8 of Family Courts Act 1964 (hereinafter referred to as the Act) as such it suffers from violation of principles of natural justice also. Learned counsel pointed out that the trial Court has not complied with the provisions laid down under section 8 (a)
(i), of the Act whereby intimation about presentation of plaint is to be sent by registered post acknowledgement due, a notice of suit together with copy of plaint and other documents within 3 days of presentation of plaint and the same has not been complied with as such the impugned order as well as judgment and decree suffers from serious illegality and are liable to be set aside.
On the point of delay in filing application under rule 13 of West Pakistan Family Courts Rules, 1965 it is argued that the moment petitioner came to know about ex parte decree, he approached the Court and filed such application.
5. On the other hand learned counsel for the respondent vehemently opposed the contentions advanced by the petitioner's counsel and stated that impugned order as well as judgment/decree passed by the trial Court do not suffer from any illegality and were passed in proper mariner. He next argued that the petitioner deliberately did not appear and contest the suit, having full knowledge that the same has been filed against him and had deliberately refused to receive the summons from bailiff and had sufficient knowledge of affixing summons on the door of his house.
He stressed that the petitioner has not given cogent reason either in his application under rule 13 of Family Courts Rules, 1965 nor in affidavit attached to the same, that he had no knowledge of filing of the suit by the respondent; and that summons were neither brought to him by the bailiff for personal service nor the same was affixed at the door of his house. He lastly contended that even one mode of service of summons out of three modes mentioned in Order V of C.P.C. Is sufficient for the requirement of service on the party, which has been fully done in this case. In support of his contentions, he has relied upon case of Muhammad Nazim v. Mst. Rehana Parveen Begum, and 3 others, 1990 M LD 344 and Inayat v. Mst. Jalala 1991 CLC 1326.
5-A. Admittedly, it is for the first time that the petitioner has taken the ground in petition that rule laid down in section 8(a)(i) of Act, has been violated by the trial Court by not sending the summons to him by registered post with acknowledgement due. He has also not agitated this ground in application under Rule 13 of West Pakistan Family Courts Rules, 1965, about setting aside ex parte judgment and decree passed in the suit against him. In view of such position, this fresh plea, not raised in the lower forum, cannot be raised in the Constitutional jurisdiction. Moreover, his contention is also found false from the record of the lower Court which appears that on the date of presentation of plaint, learned trial Judge ordered for issuance of summons to the petitioner through bailiff as well as through registered post A/D. According to subsection (6) of section 8 of the Act, the summons issued under clause (b) of subsection (i) of section 8 shall be served in the manners provided under Order V, rules 9, 10, 11, 16, 17, 19, 21, 23, 24, 26, 27, 28 and 29 of C.P.C. Order V, C.P.C. Provides three modes of service, i,e, personal service, service by affixation and substituted service. In this case summons have been sent through personal service which according to the bailiff's reports, petitioner refused to accept and thereafter his second mode. Of service was applied, by which the summons were pasted at the door of his house. Superior Courts have held that in circumstances where law allows more than one mode of service of process, effective service by any of the modes, proved is good service. This Court in the above-referred case of Muhammad Nazim v. Mst. Rehana Parveen Begum has dealt with the case, identical to that of petitioner and nearly all the pleas raised in this petition have been answered. On the point of modes of process as contemplated by section 8 of the Act, 1964, it has been observed that effective service on any of the three modes if proved is good service. It is also held that the point not agitated in the lower forum, is not open to scrutiny, in petition. Same view has been taken by Lahore High Court in another referred case of Inayat v. Mst. Jalala, in which revision filed challenging setting aside of ex parte decree, was dismissed. To strengthen it further, reference is made to the case of Ahmed Autos and others v. Allied Bank of Pakistan PLD 1990 SC 497 wherein Honourable Supreme Court has observed that service is to be held good if a defendant is served by any of the three modes of service provided for in C.P.C. As well as rule 8 of Banking Companies (Recovery of Loans) Ordinance, 1980.
Irrespective of this, the ex parte order cannot be set aside for the reasons, firstly, that application under rule 13 of the West Pakistan Family Courts Rules, 1965 was filed in the lower Court beyond the period of limitation whereby it is to be filed within 30 days of the passing decree and no dcogent reason of such delay was shown or explained in the application. Secondly, it has been properly held by the trial Court that it was well within the knowledge of the petitioner that the respondent had filed suit for dissolution of marriage against him. As such 'in view of proviso to rule 13 of Order IX, C.P.C. The decree passed ex parte cannot be set aside even though any irregularity in the service of summons is shown. Reference is made to said proviso as under:-- "Provided further that, no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."
6. On invoking the extraordinary writ jurisdiction of this Court under Article 199 of the Constitution, it has been observed by Honourbale Supreme Court in the case of Syed Ali Shah v. Abdul Saghir Khan Sherwani PLD 1990 SC 504(e) as follows:-- "Art.199---Constitutional jurisdiction---Scope---Paramount consideration in view---Constitutional jurisdiction of High Court is designed and intended to foster the cause of justice and not to perpetuate an injustice--It is not every illegal order which is liable to be set aside in exercise of the Constitutional jurisdiction---Paramount consideration should be, whether setting aside of an order, which suffers from a legal infirmity, will advance the cause of justice or would it perpetuate an injustice."
7. With the above observations, this petition being devoid of merit, stands dismissed in limine, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.