' TALAT QAYUM QURESHI, J.--- Respondent No,1 Mst. Robina Gul filed suit on 18-6-1998 before Judge Family Court Mansehra against petitioner for jactitation of marriage. An ex parte decree was passed on 21-7-1998 in favour of respondent No,1. Application for setting aside ex parte decree was filed by the petitioner on 5-10-1998. The said application was dismissed vide order, dated 27-11- 1998 by the learned Judge, Family Court. The petitioner filed appeal in the Court of learned Additional District Judge Mansehra but the same was also dismissed vide order, dated 23-2-1999.
The petitioner has now impugned the orders, dated 27-11-98 and 23-2-99 passed by the learned Judge, Family Court and learned Additional District Judge, Mansehra respectively through writ petition in hand.
2 . Qazi Muhammad Asif, Advocate learned counsel representing the petitioner argued that the petitioner was confined in Central Jail, Bannu since 17-3-1998 in case F.I.R. No,328 under section 302, P.P.C. Registered in Police Station, Bannu. He had no knowledge of the suit pending against him or ex parte decree passed against him. Having attained knowledge of ex parte decree, he submitted an application for setting aside the same on 5-10-1998.
3. On the other hand Mr. Khan Afzal Khan, Advocate learned counsel representing the respondent argued that the ex parte decree was passed against the petitioner on 21-7-1998 but the application for setting aside the same was filed on 5-10-1998. As per Rule 13 of West Pakistan Family Court Rules, 1965, the period of limitation for filing application of setting aside ex parte decree was 30 days. Since the application was barred by time, therefore, the learned Courts below rightly dismissed his application and appeal being barred by time.
4. I have heard leaned counsel for the parties and perused the record of the case.
5. Summons were sent to petitioner through registered post on the address of Central Jail, Bannu.
The registered envelop containing summons were despatched on 15-7-1998 as is clear from Annexure "K". The next date of hearing in the case was 16-7-1998. The envelop could not reach Bannu on the same day i,e, 15-7-1998 and it must have been delivered to the Superintendent, Central Jail, Bannu after 16-7-1998. There is no evidence on record to show that the said summons were handed over to the petitioner. We, therefore, observe that the service on the respondent was not proper. The learned Courts presuming the service having been affected proceeded ex parte on 16-7-1989 and thereafter passed ex parte decree on 21-7-1998. Having come to know about ex parte decree passed against him, petitioner filed application for setting aside ex parte decree on 5-10-1998. The said application was, however, dismissed vide order, dated 27-11-1998 being barred by time. Similarly appeal filed by the petitioner was also dismissed by the learned Additional District Judge, Mansehra vide order, dated 23-2-1999 being barred by time.
6. The paramount question in this petition is as to whether the limitation period for filling application for setting aside ex part decree is 30 days as prescribed under Rule 13 of West Pakistan Family Courts Rules, 1965 or there is no period prescribed for filing such application as envisaged under section 9(6) of West Pakistan Family Courts Act, 1964. Section 9(6) of the West Pakistan Family Courts Act, 1964 mentions that the application for setting aside ex parte decree can be made "within reasonable time" and no fix time limitation has been prescribed therein. Section 9(6) is reproduced hereunder:-- "9(6). 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, and on such terms as to costs as it deems fit, make an order for setting aside the decree as agaisnt him, and shall appoint a 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 defendants also."
Rule 13 of West Pakistan Family Courts Rules, 1965 provides that application for setting aside ex parte decree was to be made within 30 days of passing the decree. The rule is reproduced hereunder:- "13. Ex parte decree or proceedings may, for sufficient cause shown be set aside by the Court on application made to it within thirty days of the passing of the decree or decision."
' A similar question came up before Honourable Supreme Court of Pakistan in case Major Matloob Ali Khan v. Additional District Judge East Karachi and others 1988 SCM R 747 and it was held:-- "The plain reading of the aforesaid provisions makes it clear that the . Statute provided no time limitation for making application for setting aside an ex parte decree passed by a Family Court.
The point to be noted is that this is not a case where the statute is silent with regard to the period of limitation for making an application of this nature, but a positive provision has been made permitting the making of such application 'within reasonable time of the passing' of the ex parte decree. The question is whether in the face of such statute provisions, the rule making authority could frame a rule in any case limiting the period of limitation to a fixed period. The Rule making power has been vested in the Government under section 26 of the Family Courts Act for making rules to carry into effect the provisions of he Act, when the Act itself provides for making the application within reasonable time. Apparently fixing a period of limitation of general application to all cases, cannot be in consonance with the provisions of the Act and cannot be said to carry into effect the provisions of the Act."
7. With the above cited judgment of the august Supreme Court of Pakistan the position has become clear that there exists a positive provision in the Statute which provides the making of such an application "within reasonable time of the passing of ex parte decree" and that Rule 13 of West Pakistan Family Courts Rules, 1965 is not in consonance with the provisions of the Act and cannot be said to carry into effect the provisions of the Act. The petitioner could, therefore, file application for setting aside ex parte ' decree within reasonable time' after the passage of ex parte against him or attaining the knowledge of such decree. In the case in hand the petitioner was confined in Central Jail, Bannu as he was involved in case registered vide F.I.R. No,328 under section 302, P.P.C. In Police Station, Bannu. He was unable to approach the learned trial Court for filing application for setting aside ex parte decree. He, however, filed the same on 5-10-1998 through his attorney which in our view was within reasonable time,.
8. We, therefore, accept the writ petition, set aside the impugned orders, dated 27-11-1998 and 23- 2-1999 passed by the learned Judge, Family Court and learned Additional District Judge, Mansehra respectively and remand the case back to the learned Judge, Family Court, Mansehra for deciding the application for setting aside ex parte decree afresh within a period of 2 months.
9. Parties are directed to appear on 28-3-2000 before the learned trial Court (Judge, Family Court/Senior Civil Judge, Mansehra).
10. The office is directed to send the record of the case back to the trial Court before 28-3-2000.