Both Constitutional Petitions Nos.S-265 of 2001, S-266 of 2001 are proposed to be disposed of by this common order as they arise out of common set of facts and circumstances.
2. Petitioner Dr.Zafar Ahmed and respondent No,1 Mst. Shamsa were married at Karachi on 20-12- 1997 in accordance with Sunni Hanafi MuslimLaw and a sum of Rs,10,00,000 was fixed as prompt dower. On 6th January, 2000 Mst. Shamsa, respondent No,1 filed two suits against Dr.Zafar Ahmed, the petitioner in the Court of Family Judge, Karachi East, one for recovery of dower (Family Suit No,16 of 2000) and the other for maintenance (Family Suit No,17 of 1999). It was commonly alleged in both the suits that soon after marriage the plaintiff came to know that the respondent/petitioner was a married person having tour children which fact was concealed from her. She alleged that instead of maintaining equality between the two wives the defendant, right from the very beginning neglected her. After having resorted to all best possible remedies to persuade the petitioner/defendant she issued a legal notice to him for payment of her prompt dower which was refused on the ground that the payment of dower hid already been made to her. She, therefore, filed a suit claiming an amount of Rs,10,00,000 as prompt dower. In the second suit she asserted that in the circumstances she was constrained to live with her parents, therefore, she was entitled to maintenance and accordingly sought maintenance at the rate of Rs,50,000 per month right from January, 1998 and onwards. During the proceedings of the suits the petitioner was declared ex parte and his applications for setting aside ex parte orders were rejected and ex parte decrees were passed against him in both suits on 30-5-2000. He preferred appeals against the judgments and decrees on 23-8-2000 under section 14 of the Family Courts Act. Since the appeals were time- barred, he moved an application in each appeal for condonation of delay in filing the same within- the meaning of rule 22 of the Family Courts Rules, 1965 read with section 5 of Limitation Act, 1908.
The learned Appellate Court heard arguments and dismissed both these applications and by the same order dismissed the appeals being time-barred. The petitioner, having no alternate remedy, resorted to these Constitutional petitions under Article 199 of the Constitution of Pakistan on the grounds that:
(1) Initially the learned Family Judge had passed ex parte order on the basis of invalid service of summons.
(2) The learned Family Judge was not authorized under law to 'strike off the defence of the petitioner/defendant on account of his non-filing of written statement.
(3) The judgment passed on 25-5-2000 by the Family Judge suffered from jurisdictional and factual infirmities.
(4) The Appellate Court had failed to exercise jurisdiction by not taking into account the conflict between section 9(6) of the Family Courts Act and rule 13 of the Family Courts Rules.
(5) The dismissal of petitioner's application for condonation of delay was based on erroneous facts and was, therefore, illegal.
(6) The orders passed by the Appellate Court as also the Family Judge were based on super technicalities.
3. I have heard learned counsel for the parties and perused the R & Ps of the Courts below.
4. There is no denying of the fact that the appeals were filed not within the prescribed period of 30 days from passing of the decree in both the suits. The main contention raised on behalf of the petitioner is that the petitioner had offered enough explanation and had, substantially, shown sufficient cause to condone the delay and extend the time for filing the appeals within the meaning of rule 22'of the Muslim Family Courts Rules but the Appellate Court arbitrarily turned down his request and dismissed the application. Learned counsel for petitioner argued that the Appellate Court was under an obligation to discuss the other material on record. He urged that the service of summon on the petitioner/defendant was absolutely defective and invalid, therefore, the explanation offered by the petitioner/defendant on his appearance was to be considered; and the Family Court was not empowered to strike off the defence of the petitioner/defendant, but the suit was to' be decided on merits. He contended that the order of trial Court declining to set aside ex parte order suffered from serious legal drawbacks and was void as such the superstructure founded thereon including the appellate order shall have no legal effect. He specifically contended that the procedure adopted by learned Family Judge was wholly violative of sections 9, 10 and 11 of the Family Courts Act, 1964. Further, according to him the grant of maintenance at the rate of Rs,50,000 per month was exorbitant and out of proportion.
5. Mr. Kamaluddin Ahmed, learned counsel for respondent submitted that the Family Court, after recording the bailiff's statement and exercising sufficient caution had held the service good as the summonses were served through TCS also. He added that the ex parte decree passed by the Family Court was legal and the appeals were barred by time for which no genuine explanation was offered by the petitioner. The appellate order, therefore, need not be interfered with.
6. A number of precedents were cited at the Bar on different points.
7. As regards the service of summons on defendant reliance was placed by learned counsel for petitioner on Muhammad QayumBaig v. Sabira Sultana (1986 CLC 196) wherein the substituted service effected on the basis of suomotu report of bailiff by way of affixing it at the outer door of the house of defendant was held to be in violation of the provisions of section 8 of the Family Courts Act, 1964. Reference was also made to Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division (PLD 1971 SC 61) wherein judgments of both the Courts below were held to bevoid ineffective. In Maqsood Ahmed v. Judge Family Court, Bhoreywala (2001 CLC 567) it was held that the Family Courts Act, 1964 or Rules framed thereunder did not empower the Family Court to strike off the defence of defendant on his non-filing of written statement. The principle laid down in Bashir Ahmed v. Zubaida (1990 ALD 180) was that even if written statement was not filed the decree without recording the evidence of defendant would be without legal effect. As regards point of limitation the delay in filing the appeal was condoned on the ground of illness of the appellant in Aziz Ahmed v. Ashraf (1991 CLC 1261). On a similar ground delay was condoned in. Muhammad Sharif v. Ghulam Ali (1995 M LD 923).
8. The question before this Court is whether fundamentally the initial order of refusing permission to the petitioner .To contest the suit on his appearance was valid and legally justifiable. Perusal of the record shows that - notice to defendant was issued through Bailiff as well as through TCS and on 27-4-2000 the Bailiff reported effective service on the petitioner/defendant and on that date the plaintiffs Advocate filed a TCS delivery confirmation. The statement of Bailiff is said to have been recorded on 6-5-2000 but on examining the record it transpired that the bailiff had given a written version on 6-5-2000 on which the Family Court passed the following orders: "Heard the bailiff on oath in person and perused the statement. I have also perused the TCS confirmation which states that it has been received by Mrs.Zafar at 10-45. Hence this proves that defendant properly intimated and has knowledge of the same. The service is held good upon the defendant. Put up for W.S."
9. The defendant/petitioner in his affidavit filed in support of his application under Rule 13 of Family Courts Rules, 1965 for setting aside theex parte Order dated 18-5-2000 totally denied the service of summons upon him. On a bare perusal it would be seen that the signature of the petitioner on the affidavit 'is totally different from that on the copy of summons produced by the bailiff. The post through TCS has also been delivered to someone claiming to be Mrs. Zafar. In this view of the matter an inquiry was reasonably required in order to arrive at a legitimate conclusion that the summons was duly served, but on the said application of petitioner/defendant the learned Family Judge passed the following sketchy order: "This application is filed by Advocate for the defendant which was noticed and objection to which are filed herewith. I have heard the learned counsel for the plaintiff and defendant and perused the file. Hence I dismiss this application as ex parte has already been announced."
10. The last sentence in the above order manifestly discloses the indifferent attitude of the learned Family Judge in dismissing the application for setting aside the ex parte order simply on the ground that ex parte order had already been announced. Such a slipshod and rough order is to be refrained from while performing sacred duty of judicial dispensation. Not only a Judge but by way of introduction of new provision in section 24-A(2) of the General Clauses Act every authority, office or person making an order under the powers conferred by or under any enactment is required to assign/record reasons for passing the order. Indeed, if the last mentioned sentence is the only ground for passing the order dated 25-5-2000 it can irresistibly be opined that it is no 'reason' in the eye of law. An order shall be a speaking order and more particularly while dealing with substantive rights of parties a cursory and a groundless order without assigning reasons cannot be conceived, nor would it be treated as a legal one.
11. Precisely, within the domain of Family Courts Act, it may be observed that the provisions of section 9(5) (a) of the Family Courts Act, 1964 have been flagrantly disregarded by the learned Family Court while passing the above order. Subsection (5) of section 9 of the Family Courts Act is reproduced below for ready reference:-- "(5) If the defendant fails to appear on the date fixed by the Family Court for his appearance, then- -
(a) if it is proved that the summons or notice was duly served on the defendant, the Family Court may proceed ex parte; provided that where the Family Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may upon such terms as the Family Court directs, be heard in answer to the suit as if he had appeared on the day fixed for his appearance; and
(b) if it is not proved that the defendant was duly served as provided in subsection (4) of section 8, the Family Court shall issue fresh summons and notices to the defendant and cause the same to be served in the manner provided in clauses (b) and (c) of subsection (1) of section 8."
12. A bare perusal of the above clause would lead to reasonable interpretation that when the Family Court is satisfied that the summons or notice is duly served on defendant and the Court decides to proceed ex parte but no proceedings are taken on that date and the case is adjourned the defendant has a right at or before such hearing to appear and assign good cause for his previous non-appearance. In case the defendant assigns good cause for his previous non- appearance the Family Court has to hear him in answer to the suit as if he had appeared on a day fixed for his appearance,subject, of course, to such terms as the Family Court may direct but essentially such terms would not be meant to take away the right of hearing which guaranteed in this clause itself. The Family Court was thus required in the first instance to pass an order in express terms as to whether the defendant was able to assign good cause for his previous non- appearance or not. A bald observation that the application is dismissed because the ex parte order has already been passed negates the provision of clause (a) of this subsection. The Family Court is not supposed to overlook the provision of law and pass an arbitrary order. Indeed, the order dated 25-5-2000, in the circumstances, cannot be sustained in the eye of law and is void. All the subsequent orders follow the aforementioned order as the petitioner/defendant has been refused the right to participate in the proceedings and as such an ineffective decree has been passed which too is void. The decree, therefore, could not be maintained. The appellate order would also be null and void since the foundation thereof is void ab initio.
13. In view of the above, the judgment and decree of the trial Court as also the order dated 25-5- 2000 passed by Family Court coupled with the appellate judgment dated 18-5-2001 are set aside and both the suits are remanded to the learned Family Court for proceedings afresh and allowing petitioner defendant to file his written statement and contest the suits on merits but it is clarified that petitioner/defendant should not employ any dilatory device to delay the proceedings. Both the petitions are disposed of in above terms with no order as to costs.