1. GHULAM SAFDAR SHAH,J.-This appeal by leave of the Court is meant to impugn the judgment of the Lahore High Court, dated 10-2-1977, by which the writ petition of respondent, against the judgment and decree of Additional District Judge, Lahore, way allowed and consequently the decrees of the Courts below were set aside and the case remanded to the Family Court for fresh disposal according to law.
2. The facts leading to this appeal are that on 19-6-1970 the parties herein got married. But soon thereafter their relations became strained with the result that the appellant on two occasions was allegedly driven out of the house by respondent. Faced with this situation, the appellant filed against respondent suit in the Court of Family Judge, Lahore, for the dissolution of marriage on three grounds: (i) cruelty; (ii) incompatibility of temper; and (iii) maltreatment. The record would show that on 17-6-1971, the Court ordered the issuance of summons to respondent through the bailiff as well as by registered post, returnable on 23-7-1971. But the summons were returned un- served. The Court again directed the issuance of summons as before, returnable on 10-9-1971, but on this date the Presiding Officer was on leave and consequently the case was adjourned to 16-9- 1971. In due course few more attempts were made to serve the respondent but all these efforts failed. For according to the last report of Process-Server he had shifted from the old place of his residence to another place the whereabouts of which could not be found out. On receipt of this report, the learned Judge finally directed that respondent be served through publication. In compliance with this order, the required proclamation was published in the "Nawa-i-Waqt" of Lahore, dated 22-1-1972. But even then the respondent did not appear in Court, consequently he was proceeded against ex parte and on 8-3-1972 the Court decreed the suit of appellant.
3. On 12-5-1972, respondent filed in the trial Court, an application for setting aside the ex parte decree passed against him on two grounds: (i) that he had never been served with the summons of the suit; and (ii) that in the proclama--tion published in "Daily Nawa-i-Waqt", Lahore, dated 22-1-1972, in the body of the notice his name had been wrongly mentioned as Rao Ismat Ali Khan instead of Rao Riaz Ali Khan. On this application, the trial Court issued notice to the appellant who vigorously contested the same. The order of the learned trial Judge would show that in the said proceedings both parties adduced their respective evidence; upon the one issue framed therein, namely, "whether there existed sufficient ground to set aside the ex parte decree?", and it was thereafter that he dismissed the application of respondent. Being aggrieved, the respondent went in appeal before the Additional District Judge, Lahore. But he failed and finally he filed in the High Court a Constitutional petition challenging therein the ex parte decree passed against him on the same two grounds, namely, that he had never been served; and that in the publication appearing in "Nawa-i-Waqt", his name had been wrongly mentioned as Rao Ismat Ali Khan instead of Rao Riaz Ali Khan. As already mentioned he succeeded is the High Court. And hence the appellant came to this Court for leave to appeal against the impugned judgment which by the order of this Court, dated 31-5-1977, was granted to her to consider whether the High Court was right to set aside the concurrent findings of the two Courts below in the exercise of its Constitutional jurisdiction.
4. In the trial Court, the burden was on the respondent to prove that there existed sufficient cause to set aside the ex parte decree passed against him. In order to discharge this burden he appeared as his only witness. From the side of appellant, however, the appellant herself appeared in the witness-- box and also produced three other witnesses, namely, lbadat Ali (R. W. 2), her brother Abdul Khaliq Toor (R. W. 3) and Mumtaz Ali (R. W. 4), the Process-Server of the Court. The substance of the evidence of respondent was that he was never served with the summons of the suit; that the attempt to serve him by publication in the newspaper was wholly illegal, as at no stage of the proceedings any attempt was made to serve him personally according to the requirements of section 8(t) of the West Pakistan Family Court Act, 1964 (hereinafter called the Act); and that even in the proclamation published in "Nawa-i-Waqt", Lahore, dated 22-1-1972 his name had been wrongly mentioned as Rao Ismat Ali Khan, and so it cannot be said that he had been properly served. In regard to the fact as to how he came to know that an ex parte decree had been passed against him, his evidence was that on 6-5-1972 the appellant told him on phone that they were no more husband and wife as the Court of Family Judge had decreed her suit for the dissolution of her marriage.
5. The appellant, in her own evidence, denied all that what was asserted by the respondent in his evidence. She maintained that the respondent was all along aware that she had filed suit against him for the dissolution of her marriage, but he deliberately avoided to be served through the Process-Server; that on two occasions during the pendency of her suit he had approached her brother Abdul Khaliq Toor (R. W. 3) through Ibadat Ali (R. W. 2) with a view to compromising their disputes. But his efforts did not fructify. As regards the claim of respondent that she had told him on phone on 6-5-1972 that her suit had been decreed by the Family Court Judge, the appellant denied the said claim saying, she had never told him any such thing. Now by going through the evidence of lbadat Ali (R. W. 2) and Abdul Khaliq Toor (R. W. 3), the evidence of the appellant would seem to carry more conviction than the uncorroborated evidence of the respondent. The evidence of Ibadat Ali is that the respondent had approached him twice with a view to seeking some sort of compromise with Abdul Khaliq Toor, the brother of the appellant. But on both occasions, when he took the respondent to Abdul Khaliq Toor, no compromise could be reached. In regard to the second visit of respondent, the evidence of lbadat Ali is that he was carrying with him a copy of "Daily Nawa-i-Waqt", dated 22-1-1972, in which the proclama--tion against him was published and that was why he had come to him and requested him to take him to Abdul Khaliq Toor in an effort to bring about come sort of compromise between him and the appellant. Abdul Khaliq Toor has corroborated the evidence of Ibadat Ali in every material detail. Now this being the entire evidence on record, the learned trial Judge seemed to have rightly preferred the evidence of the appellant to that of the respondent, and consequently decreed her suit. As already stated, the decree of trial Judge was affirmed by the learned Additional District Judge in appeal. But in the High Court, in the writ proceedings instituted by respondent, he succeeded with the result that the judgments of trial Court and the Court of Additional District Judge both were set acid: and the case remanded to the learned trial Judge for fresh disposal according to law.
6. We have heard the learned counsel for the parties. Mr. Abid Hassan Minto, the learned counsel for the appellant, has attacked the judgment of the High Court mainly on the ground that in the exercise of its Constitutional jurisdiction the High Court could not convert itself into an Appellate Court reappraise the evidence on record and consequently set aside the concurrent findings of the two Courts below. There seems to be force in this contention. The learned Judge in the High Court seems to have been mainly influenced by the fact that no effort had been made to serve the respondent herein according to the requirement of section 8 of the Act as also that in the proclamation published in "Nawa-i-Waqt", dated 22-1-1972, the name of respondent had been wrongly mentioned as Rao Ismat Ali Khan instead of Rao Riaz Ali Khan. Now the requirement of section 8 of the Act no doubt is that within three days of the presentation of the plaint before it, the Family Court shall, in addition to the issuance of summons to defendant, send to the defendant a notice of the suit by registered post acknowledgment due; also send a copy of the notice and a copy of the plaint to the Chairman of the Union Council concerned who on receipt of the notice shall display the said copy of the plaint on the notice board of the Union Council for a period of seven consecutive days. The High Court, however, discovered that no notice was ever sent to the respondent by registered post acknowledgement due nor indeed was any notice sent to the Chairman of the Union Council within whose jurisdiction the petitioner (appellant herein) resided.
7. Having noted these omissions, the learned Judge proceeded to observe that according to the requirement of section 3(6) of the Act summons were required to be served on the respondent herein in the manner provided in Order V of the Code of Civil Procedure, 1908. But again he noted that even this requirement had been violated by the trial Court. In recording this conclusion the learned Judge took note of the three notices, dated 23-7-1971, 27-10-1971 and 15-1-1972 on the back of which the Process-Server had reported that the respondent herein was not available at his residence; that he did not observe any fixed timings of coming to and going out of his house; and that (so he finally reported on the back of notice dated 15-1-1972) he had shifted from his place of residence. To another place the address of which was, however, unknown. With these reports the learned Judge in the High Court was evidently dissatisfied, for according to him the trial Judge had failed to examine the Process-Server on oath to ensure if his reports were really genuine, The learned Judge similarly held that since -in the proclamation published in "Nawa-i-Waqt", dated 22-I-1972, the name of respondent herein was wrongly mentioned as Rao Ismat Ali Khan, he could not be said to have been served. And so on all these accounts the ex parte decree passed against him would be without jurisdiction.
8. Now by going through the record of this case, it is true that the learned trial Judge had not fully observed the requirements of section 8 of the Act. But in view of the peculiar facts of this case the said omission would seem to be of not much consequence. The main question which required consideration in this case was whether the respondent herein can be said to have been aware that the appellant bad instituted against him suit for the dissolution of her marriage and had deliberately avoided to be served. It is true that in the application filed by him, sec king to set aside the ex parte decree passed against him, he had pleaded ignorance about the suit of the appellant.
9. But in that regard lie was disbelieved by the trial Court as well as by the Court of Additional District Judge for reason with which respectfully agree. It is in the evidence of lbadat Ali (R. W. 2) and Abdul khaliq Toor (R. W. 3) that when the respondent came to see them on the second occasion, be had with him the copy of "Daily Nawa-i-Waqt", dated 22-1-197? In which the proclamation of summons had been published. The fact that the appellant had also deposed in the same strain would go a long way to prove that the respondent was aware of the institution of her suit as against his uncorroborated evidence.
10. The view taken by the learned Judge in the High Court, however, was that since in the body of the proclamation the name of respondent had been wrongly mentioned as Rao Ismat Ali Khan instead of Rao Riaz Ali Khan, he cannot be said to have been properly served. With respect, we have not been able to agree with this conclusion which is based not on the substance of the proclamation in question. It is true that in the body of the proclama--tion the name of respondent had been wrongly mentioned as Rao Ismat Ali Khan, taut in the title of the suit his name had been properly mentioned as Rao Riaz Ali Khan. In this view of the matter, therefore, it would be idle for him to contend that he was misled by the proclamation . . , , especially when according to Ibadat Ali (R. W.
11. 2) and Abdul Khaliq Toor (R. W. 3) he had with him a copy of "Nawa-i-Waqt", dated 22-1-1972 when he came to see them on the second occasion with a view-seeking" the compromise of hi disputes with the appellant.
12. We have noted that in the High Court, in the exercise of its Constitutional jurisdiction, which is necessarily of a 'discretionary nature, no notice was taken of the social standing of the appellant and respondent. The record would show that whereas the respondent herein was employed as Sub-Inspector in the Excise and Taxation Department, and thus would seem to be sufficiently educated, the appellant holds the Master's Degree in Zoology and was working as Lecturer in Government College-for Women, Gujranwala. In this view, it would be legitimate to presume that they had entered into the marriage bond as free agents just as it can be presumed that no woman, especially enjoying the social background of the appellant would, within a year of her marriage, rush to the Court seeking the dissolution of her marriage ties. The record would show that when she instituted the suit against respondent, she was 27 years old and by that reckoning, she is now over 34 years old. In these circumstances the High Court should have declined to exercise its discretionary jurisdiction in favour of respondent, for by remanding the case to the learned trial Judge for fresh disposal it was evidently prolonging the agony of the appellant who had no intention to own the respondent as her husband.
13. Upon the peculiar facts of this case, therefore, we are satisfied that the impugned judgment of the High Court cannot be sustained;" Accordingly this appeal is allowed, the judgment of the High Court is set aside, but under the circumstances the parties would bear their own costs.