MRS. FAKHAR-UN-NISA KHOKHAR, J. -- Brief facts of the instant writ petition are that the petitioner filed an application for seeking maintenance allowance before the Chairman, Arbitration Council, Union Council Chak Manju, Tehsil and District Gujrat on 24.4.1993. On 25.4.1993 notices were sent to the respondent No. 2. In response to the notice dated 25.4.1993 respondent No. 1 gave an application before the Chairman, Arbitration Council for exemption of his attendance on 8.5.1993 and showed his readiness to pay the maintenance allowance to the petitioner and also requested the Chairman, Arbitration Council to decide about the dowry and ornaments etc. On 8.5.1993 the petitioner appointed her real brother as an Arbitrator for appearing before the Chairman, Arbitration Council but respondent No. 2 absented and notice was issued to him. The respondent No. 2 was again served with a notice for 22.5.1993 but he did not appear and on the said date ex parte proceedings were ordered and she produced Fayyaz-ul-Hassan in support of her version and on 22.5.1993 an application was given to the Chairman, on behalf of respondent No. 2 that the notice dated 9.5.1993 could not be received by him. The notice dated 9.5.1993 was received by him on 20.5.1993 at evening time and therefore, he could not appear on 22.5.1993. He again showed his readiness to pay the maintenance amount to the petitioner and requested for sorting out the matters about some articles and ornaments belonging to respondent No. 2 in possession of the petitioner and that he being on emergency duty was unable to appear on 22.5.1993 and requested for exemption.
2. The learned Chairman, Arbitration Council on 15.6.1993 constituted Arbitration Council and passed an ex parte maintenance decree to the tune of Rs. 1500/- per month as past maintenance for a period of three years before the institution of maintenance application and also made total of the same as Rs. 54,000/- and directed respondent No. 2 that he should pay Rs. 1500/- as maintenance before the first of every month and in case of failure to deposit the same the remaining amount will be received from him and the judgment will remain in operation from 25.4.1990. This judgment was assailed in revision petition filed by respondent No. 2 before the Collector on the grounds that he was condemned unheard and that he had divorced the petitioner in March 1993 and this fact has been admitted by her in a suit for maintenance filed before the learned Family Court, Gujrat and that the Arbitration Council was seized of granting the maintenance allowance. This revision petition was accompanied by an application under Section 5 of the Limitation Act on the basis that he was appointed as Press Manager in Rozenama Karachi and he only got the knowledge of the decree on 28.6.1994 when the proceedings of execution started against him. This revision petition was initially heard on 15.8.1994 where the learned Collector held that the revision was one year's time-barred but he after hearing the counsel admitted the same for regular hearing and summoned the record of the Arbitration Council and stayed the execution proceedings and vide an ex parte judgment and decree dated 26.9.1994 accepted the revision petition to the extent that the petitioner will only pay the maintenance allowance of "Iddat" period at the rate of Rs. 1500/- per month.
3. On 14.10.1998 neither the respondent nor his counsel appeared, therefore, ex parte proceedings were ordered against him by this Court.
4. I have heard the learned counsel for the petitioner and his submissions are that the finding of the learned Collector is erroneous; the maintenance application dated 24.4.1994 was filed by the minor son of the respondent No. 2 while the application for maintenance allowance under Section 9 of the Muslim Family Laws Ordinance, 1961 was filed by his wife and even if at all that the minor had admitted in Paragraph-3 that the respondent No. 2 has been paying the monthly maintenance allowance at the rate of Rs. 1500/- per month from the date i.e. 9.6.1991 till December 1992 and even if at all it is admitted although it was a maintenance allowance for his son then the learned Collector could only deduct one year Maintenance allowance and could direct the payment for the past maintenance for a period of two years and that he had not condoned the delay at any stage.
5. I have perused the judgment of the learned Collector dated 26.9.1994 and also his earlier order dated 15.8.1994. He was very much in the knowledge that the revision petition was one year's time- barred and he could only admit the same for regular hearing after condoning the delay of one year and accepting the application under Section 5 of the Limitation Act filed by the respondent.
Moreover, his reliance on the civil suit filed by the petitioner as guardian ad item of the minor ArsIan had no bearing in the case of the petitioner as it was the independent maintenance suit tiled by the minor through his mother as guardian ad item while the maintenance application under Section 9 of the Muslim Family Laws Ordinance, 1961 was independently given by the petitioner for herself. The respondent No. 2 had been-appearing before the learned Chairman, Arbitration Council and had given application for exemption of his absence before the same Court. He could be vigilant enough to appear and conduct the proceedings of maintenance before the learned Chairman, Arbitration Council but he deliberately avoided the same and as such is estopped to challenge the ex parte decision before the learned Collector and the learned Collector without condoning the delay was seized of jurisdiction to hear a time-barred revision where a right of dismissal had already accrued to other party.
6. So far as the divorce is concerned the certificate of the effectiveness of divorce shows that the notice of divorce was given on 18.5.1993; the reconciliation failed between the martial spouses and on 15.8.1993 the certificate for the effectiveness of divorce was issued by the Chairman, Union Council. The maintenance application was filed by the petitioner on 24.4.1993 before the divorce became effective. The law does not prohibit a divorced woman to claim her past maintenance.
Therefore, she appeared before the Chairman, Arbitration Council and recorded her statement that she was not maintained for a period of three and a half years by her husband nor she was allowed to perform matrimonial relationship in his house and that his monthly income is Rs. 8000/- and he can very well pay the maintenance allowance to her. The suit filed by the minor Arslan could not be relied by the learned Collector to deprive the petitioner fro her maintenance allowance as this was a suit filed by the minor through h mother who was guardian ad item and any averment in the plaint filed b the respondent for his maintenance cannot estop the maintainance allowance to the petitioner who is independently claiming her maintenance and Section 9 of the Muslim Family Laws Ordinance, 1961. The Chairm Arbitration Council awarded the past maintenance allowance for a period three years before instituting the application. The divorce was effected o 15.8.1993, therefore, the petitioner was entitled to the past mainte allowance at the rate of Rs. 1500/- per month for a period of three yea from 24.4.1990 to 15.8.1993 when her divorce became effective.
7. In view of what has been discussed above I accept the wr petition and set aside the order dated 26.9.1994 passed by the learn Collector, District Gujrat and modify the judgment of the Arbitration Council to the extent that the petitioner is entitled for the past maintaince allowance at the rate of Rs. 1500/- per month for a period of three ye prior to the institution of the application for maintenance i.e. 24.4.1990 ti 15.8.1993 on which date the divorce became effective.