1. ' This appeal is to assail the validity of the order, dated 5-8-1999 recorded by the Judge Family Court Muzaffarabad, whereby, an application for setting aside the ex parte decree was allowed by the said Court.
2. ' The brief facts are; that Mst. Rafhat Rashid the present appellant brought a suit for jactitation of marriage before Judge, Family Court, Muzaffarabad on 7-11-1998.. She alleged in her plaint that she was never married to Mr. Ghulam Sarwar the respondent and as the respondent was claiming her as his wife, therefore, she sought a declaration from the Court that she was never married to the respondent and the claim of the respondent was a fake one. She also sought a decree for perpetual injunction against respondent Ghulam Sarwar.
3. ' The Trial Court after presentation of the plaint directed the plaintiff-appellant to send a copy of the plaint along with list of witnesses and other documents to the respondent-defendant, through a registered post. The plaintiff-appellant complied with the order of the Court and the Court on the next date of hearing i,e,, 24-11-1998 directed the appellant to cause a notice for appearance of the respondent in a Newspaper as the respondent-defendant did not appear before the Court, in consequence of the registered post issued by the Court on 7-11-1998. The appellant on the direction of the Court caused a notice in the Newspaper and the case was fixed for appearance of the defendant-respondent on 8-12-1998. On the aforesaid date the respondent was absent despite service through proclamation and the Trial Court initiated the ex parte proceeding against him and the case was fixed for ex parte evidence on 15-12-1998. On the aforesaid date the statement of a witness was recorded and on the request of the plaintiff-appellant for further evidence the case was posted to 30-12-1998. On 30-12-1998 again on the request of plaintiff-appellant the case was adjourned to 1-1-1999 for the evidence by the appellant. The statements of two witnesses by the appellant were recorded on the aforesaid date and then the case was fixed for arguments on 5-1- 1999. On the said date the Trial Court heard the arguments and announced the judgment and allowed the suit by the appellant.
4. ' The respondent Ghulam Sarwar moved an application for setting aside the ex parte decree, dated 5-1-1999 and requested the Court to decide the case on merits by setting aside the ex parte decree against him as he was not served with any notice about the institution of a suit for jactitation of marriage by the appellant against him. The Trial Court after due process of law allowed the application by the respondent and set aside the ex parte decree passed against the respondent on 5-1-1999. It was observed by the Trial Court that under the relevant law the time limit for appearance of the defendant-respondent was 15 days after the service upon him and as the ex parte proceedings were initiated against him before expiry of time limit, therefore, the ex parte decree against him was liable to be set aside. The appellant feeling aggrieved by the order of the Trial Court to set aside the ex parte has preferred this appeal to reverse the impugned order.
5. ' The learned counsel from the appellant argued that the respondent despite service did not appear before the Court and the ex parte decree was recorded against him on 5-1-1999, whereas the application to set aside the ex parte decree was presented before the Court on 4-2-1999.
6. Therefore, the respondent deliberately absented himself for about a month and it could not be said that he was not served with the notice in the light of the evidence on record. He further argued that it was not necessary to wait for completion of statutory period for his appearance under the relevant law. Therefore, in the estimation of the learned counsel, when the service was affected upon the respondent and he did not appear before the Court despite service, the Trial Court by recording ex parte decree against him travelled in the right direction and the application by the respondent for setting aside the ex parte decree was liable to be dismissed but the Trial Court while allowing the application acted contrary to law.
7. ' On the other hand, the learned counsel for the respondent argued that it was mandatory for the Trial Court to wait for 15 days after the due service upon the respondent but the Trial Court before expiry of time-limit, initiated ex parte proceedings against him and on the basis of ex pane evidence an ex parte decree was passed against him which offended the relevant law and it was against the interest of justice. The learned counsel also argued that no one should be condemned unheard and the technicalities could not be allowed to defeat the ends of justice. Even otherwise the application to set aside the ex parte decree is as within time, the learned counsel argued.
8. ' I have heard the learned counsel for the parties and gone through the record of the case carefully.
9. The relevant provisions dealing with the matter in hand are sections 8 and 9 of The Family Courts Act", which reads as under:---
8. Intimation of defendants.---(l) Within three days of the presentation of the plaint to a Family Court the plaintiff shall send to each defendant by registered post, a copy of the plaint together with 'a copy of the schedule as mentioned in section 7(2) and copies of all documents mentioned in section 7(3);
(2) Save as may otherwise be prescribed, the plaintiff shall also, within the time specified in subsection (1), cause notice to be published in Newspaper approved by. The Family Court of the fact of his having filed the plaint.
9. Written statement.---Within fifteen days of the service of notice upon him by registered post or the appearance of a notice in a Newspaper, whichever is earlier, the defendant shall appear in Court and file his written statement.
(4) If the defendant fails to appear within the time specified in subsection (1). The Family. Court may proceed against him ex parte."
10. ' Subsection (1) of section 8 of the said Act envisages that the plaintiff at the time of presentation of his/her plaint is required to intimate the defendant through registered post about the institution of the suit within three days and is also required to send a copy of plaint, list of witnesses and copies of all the documents appended and relied upon by the plaintiff. Subsection (2) of the said provision shows that in absence of any other law the plaintiff is also required to cause a notice through proclamation in some Newspaper approved by the Family Court within three days from the presentation of the plaint.
11. ' As in Azad Jammu and Kashmir nothing has been otherwise prescribed by the rules under the Act, therefore, the plaintiff is required to do two things simultaneously within three days:---
(a) to intimate the defendant through registered post about the institution of the suit; and
(b) to cause a notice to each defendants through a proclamation in a Newspaper approved by the Family Court.
12. The word 'shall' has been used in the above referred provision of law but no consequences are provided for noncompliance of the said provision of law. It means that this provision of law is not mandatory but directory in nature as no penal clause is provided to this provision of law. It is settled principle of law that where no penal clause has been provided to a certain provision of law, then it deems to or directory in nature. Thus, under this provision of law, a plaintiff may intimate the defendant/defendants even after the expiry of three days-time-limit.
13. ' Subsection (1) of section 9 of the Act provides that within 15 days from service through registered post or through notice" in the Newspaper whichever is earlier the defendant shall appear in the Court and file his written statement. It means that Maximum time-limit is 15 days for his appearance and any action against him on the part of the Court before expiry of time-limit is not warranted under law. Subsection (4) of section 9 of the said Act envisages that if the defendant fails to appear within 15 days, the Court may proceed against him ex parte. It implies that the Court may or may not proceed ex parte and it is left to the discretion of the Court to proceed ex parte or otherwise even after the expiry of 15 days from service. It further shows that to proceed ex parte against a defendant before expiry of time-limit is contrary to law.
14. ' Therefore, the Trial Court in the instant case initiated the ex parte proceedings before expiry of 15 days as time-limit specified for appearance of the defendant and this act of the Court was not in accordance with law. The position which emerges out from the perusal of the relevant provision of law is that when the Court may abstain its hands to proceed ex parte even after the expiry of 15 days, then to proceed ex parte before the expiry of said time-limit definitely amounts to subversion to the intent and purposes of the legislation.
15. ' Testing the case of the respondent on the above criteria, the Trial Court has rightly set aside the ex parte decree as the same was recorded on the basis of ex parte proceedings i,e,, before expiry of time-limit specified in subsection (1) of section 9 of "The Family Court Act". Even otherwise the appellant has brought a suit for jactitation of marriage and the nature of the suit requires its disposal on its merits for the reason that the ex parte decree in such-like case may not leave a positive effect while living in a Muslim society.
16. ' Thus, in the light of above observation, the appeal being devoid of force is hereby dismissed and the impunged order is allowed to stand. The Trial Court is directed to decide the case on merits at its earliest. 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.