' MUHAMMAD BASHIR JEHANGIRI, J.---Faiz-ul-Hassan petitioner seeks leave to appeal against the impugned judgment of the Peshawar High Court, Peshawar, dismissing Writ Petition No,272 of 2000.
2. Mst. Jan Sultan respondent No,1 instituted a suit against the petitioner in the Court of respondent No,3, for the recovery of her dower amounting to Rs,1,00,000. It appears that the petitioner had ignored to appear before the trial Court, therefore, ex parte decree was passed against him on 25- 7-1995 in the said suit of respondent No,1. The applicaiton filed by the petitioner for setting aside the ex parte decree was, however, dismissed by respondent No,3 on 9-9-1999. The petitioner, feeling aggrieved, preferred an appeal against the dismissal of his application for setting aside the ex parte decree which was accepted by respondent No,2 on 25-1-2000 and the case was remanded to the Court of respondent No,3 with the direction to dispose of the case on mertis subject to deposit of Rs,1,00,000 in cash by way of security. It appears that the petitioner did not deposit the amount of security as ordered by respondent No,2 in appeal. Respondent No,3 decreed the suit again on 13-3-2000.
3. Feeling still dissatisfied with the abovementioned order, the petitioner challenged the decision of respondent No,3 (the learned trial Judge) in Writ Petition No,272 of 2000 principally on the ground that the learned Appellate Court had ignored the law that ex parte decree is set aside on the terms only as to costs and no order for deposit of security could be passed by it under the West Pakistan Family Courts Act, 1964.
4. In the written reply filed on behalf of respondent No,1, she had repudiated the grounds taken up in the writ petition. The learned Division Bench of the Peshawar High Court took notice of the main contention of the learned counsel for the petitioner that the provisions of the Civil Procedure Code were not applicable to the proceedings under the West Paksitan Family Courts (Act XXXV of 1964)
(hereinafter called as the Act) and, therefore, the learned District Judge was not competent to direct the petitioner for payment of Rs,1,00,000 as security in cash. In support of this proposition the learned counsel appearing on behalf of the petitioner in the High Court had placed implicit reliance on the precedent of Abdullah v. Mst. Zubaida Begum and others 1988 CLC 1631.
Nonetheless the learned Division Bench while disposing of the writ petition pointedly referred to the fact that on passing the conditional order of setting aside the ex parte decree by the learned District Judge, no review or any other proceedings were initiated by the petitioner and thus accepted the condition while appearing before the learned trial Court. Again it was held that the writ petition was hit by laches inasmuch the order of the learned District Judge passed on 25-1- 2000. It was next observed that the marriage between the parties had been dissolved in 1994 and respondent No,1 was locked in litigating for recovery of her dower since 2-1-1995 she instituted her suit which was later decreed ex parte on 25-7-1995 after completion of substituted service of the process. It was also pointed out that application for setting aside the ex parte decree was filed on 28-7-1997 after lapse of more than two years and, therefore, it was dismissed after contest on 9-9- 1999. Thereafter the appeal of the petitioner was accepted on 25-1-2000 and the case was remanded to the learned trial Court. For decision on merits. According to the learned Division Bench of the Peshawar High Court, in view of the peculiar circumstances of the case and the conduct of the petitioner, the learned District Judge in his discretion directed the petitioner to deposit Rs,1,00,000 as security which was not complied with. The learned Judges of the Division Bench concluded that the petitioner was deliberately prolonging the agonies of his divorced wife who was litigating since early 1995. Reliance was placed by the learned Division Bench on the precedent of Muhammad Farid Khan v. The Civil Judge, Abbottabad 1989 CLC 1630, wherein it was ruled that the Constitutional jurisdiction of the High Court could not be exercised in aid of injustice or to perpetuate the inequitable conduct of the petitioner as to impede the lawful course of justice.
In view of these observations, the writ petition was dismissed in limine.
5. Mr. Muhammad Ikram Chaudhry, learned Advocate Supreme Court has reiterated the contentions which were raised before the learned Division Bench of the Peshawar High Court and again relied on the case of Abdullah (supra). The learned counsel for the petitioner has invited our attention to the provisions of section 14 of the Act to contend that the right of appeal conferred on an aggrieved litigant under section 14 ibid was not dependent on the deposit of decretal amount as a condition precedent to the entertainment of appeal and, therefore, the invocation of provisions of the Code of Civil Procedure, 1908 was clearly inapt.
6. We find that the facts of the precedent case of Abdullah (supra) are different. In point of fact the learned Appellate Court has not directed the petitioner as a condition precedent to the entertainment of any appeal within the contemplation of Order XLI, Rule 8 but in its inherent jurisdiction when it was going to set aside the ex parte decree passed against the petitioner after lapk of many years.
7. Looking to the conduct of the petitioner to enhance the agonies of his divorced wife at every occasion that was available to him, we do not find that the learned two Courts below or for that matter, the learned Judges of the Division Bench of the High Court were not justified to have passed an order for the deposit of amount of dower before remanding the suit to the learned trial Judge. In any case, the petitioner completely ignored to challenge the impugned order of the learned District Judge before the same Court for review or before the High Court in the writ jurisdiction at that juncture. By implication he had accepted the order of the learned Appellate Court and went to the trial Court without demur. He participated in the proceedings but even then he did not file a written statement as directed by the learned Appellate Court and the learned trial Court. The learned Judge Family Court was, therefore, constrained to strike off the defence of the petitioner and pass the ex parte decree for the recovery of Rs,1,00,000. Thereafter the petitioner chose to challenge before the learned High Court in its Constitutional jurisdiction the order of the learned appellate authority directing him to deposit the amount of dower as security on setting aside the ex parte decree but without any success.
8. We, therefore, find no merit in this petition which is accordingly dismissed.