Brief facts relevant for the disposal of this Constitutional petition are that on 10-11-1995 the petitioner was married with Mst. Tahira Tasneern (respondent No.3). On 3-9-1996 the Almighty blessed them with a son who was named as Junaid (respondent No.4). Later on relations between the spouses became strained.
2. On 12-12-1998 Mst. Tasnim filed a suit against the petitioner claiming Maintenance for herself and the minor alleging that since the last two years the petitioner has deserted her, and did not provide for their maintenance and she alongwith the minor is living with her parents. Maintenance was claimed at the rate of Rs.2,000 p.m.
3. Summons were issued to the respondent in response whereof Rana Sardar Ali Khan, Advocate appeared in the Family Court on 17-6-1999 and submitted his power of attorney on behalf of the petitioner, he. Obtained about five adjournments for filing written statement and ultimately on 30- 10-1989 which was the last opportunity for filing written statement, none appeared on behalf of the petitioner on account of which he was proceeded against ex parte. Thereafter, evidence of the respondent was recorded by the trial Court on 26-2-2000 and suit was ultimately decreed ex parte on 8-4-2000. Maintenance allowance at the rate of Rs.700 each p.m. Was granted to the were and child of the petitioner from the ,date of institution of their suit.
4. On 14-7-2000 the petitioner moved an application for setting aside the aforesaid ex parte decree alleging that a few days ago he had learnt from the inhabitants of the Mohallah that Mst. Tahira Tasnim had obtained a decree for maintenance allowance against him from some Court at Multan and on probe it transpired to him that on his behalf a power of attorney was submitted by somebody in that suit which was not executed by him and is liable to be cancelled; it was alleged that the decree was collusive and was liable to be set aside.
5. The application was opposed by Mst. Tahira Tasnim. After framing issues and recording evidence the said application was dismissed by the Family Court vide order, dated 2-5-2002.
Petitioner's appeal against that order was dismissed by Additional District Judge, Multan vide judgment, dated 22-10-2002.
6. In this writ petition the aforesaid order of Family Court and judgment of Additional District Judge are called in question as illegal and without lawful authority, without seeking any further relief.
7. Learned counsel for the petitioner urged that summons were never served on the petitioner who is a Government servant and during the trial he was on duty and the place of his posting was in the knowledge of respondent No.3 (plaintiff). Reliance was placed on "Mst. Aneela v. Qari Abdul Majid and 2 others" (2000 CLC 320 (Karachi).
This argument is without substance because in the application for setting aside the ex parte decree, Annexure ' C' , it is not alleged by the petitioner that he was not served. The solitary ground taken up in the said petition is that power of attorney submitted on his behalf in that suit was not executed by him, hence for the said reason the ex parte decree was collusive. The fact not alleged as a ground ii, the petition cannot be raised before higher forum. Apart from that in the plaint of suit for maintenance (Annexure A) permanent address as well as present address of the plea of posting of the petitioner is given and during cross-examination petitioner admitted the said addresses given in the plaint are correct. In the ordinary course summons are sent on the present address. Petitioner did not produce copy of summons with the writ petition in support of his assertion that summons was not sent to his present address but was sent to his Permanent address. Besides that service or non-service of the summons was of no legal consequence because appearance of petitioner as proved in the Court during the trial.
The authority cited by the learned counsel viz. 2000 CLC.320 (Karachi) is not at all relevant to the facts and circumstances of this case. In the said ruling it is held that exclusion of rule 15 of Order V, C.P.C. In section 8(6). Family Courts Act, 1964, !Early indicate that service of summons of male member of family of female defendant is not permissible. In the said case female defendant was served through her brother and she had shown sufficient cause for her non--appearance on the adjourned date of hearing. In the present case it was not alleged by the petitioner in his application for setting aside expate decree that he was not served on service was made through some other person. His case was simply that he was not aware about the passing of the decree and that the power of attorney which was submitted on his behalf in that case was not executed by him.
8. It was next submitted by the petitioner's counsel that when it was alleged by the petitioner that he did not authorize any advocate to appear on his behalf and had disowned execution of Wakalatnama, the Court should have sent the disputed power of attorney with his admitted signatures 'for comparison to ascertain whether signatures purporting to be that of the petitioner on the power of attorney were genuine or forged.
This argument is misconceived and without force because it was the petitioner who had alleged that power of attorney was not executed by him and it did not contain his genuine signature, therefore, he should have requested the Court for sending the said document for comparison to the Handwriting Expert at his expense. In civil case it was not the duty of the Court to incur such expenditure at State expense.
9. It was next argued that ex parte decree was passed against the petitioner without affording opportunity of being heard, therefore, it is void.
It is true that opportunity of being heard was the right of the petitioner; according to record five adjournments were granted by the Court for filing written statement whereafter on the request of the petitioner's counsel last opportunity was provided to the petitioner for filing the written statement but on the date fixed neither the petitioner nor his counsel had bothered to appear before the Court; in such situation it cannot be deemed that opportunity of being heard was not provided and the Court was left with no option but to proceed ex parte against the delinquent.
10. Learned counsel further contended that the petitioner had instituted a suit for restitution of conjugal rights (Annexure H) against respondent' No.3, hence she was not entitled to decree of maintenance in view of the aforesaid suit of restitution.
The argument is without substance inasmuch as the said suit was filed on 1-6-2000 i.e. After the decree of maintenance was passed against the petitioner; secondly as to what had happened after the institution' of that suit is not disclosed. No order passed by the Court in that suit has been produced.
Family Court has got the jurisdiction and lawful authority to entertain and decide family. Suits as well as petitions for setting aside ex parte decrees passed by it. Similarly Additional District Judge had the jurisdiction to dispose of the appeal against the order of Family Court. It was the petitioner who had filed the appeal hence it does not lie in his mouth to say now that the Additional District Judge had no lawful authority to pass the impugned order.
Reasons given by the Family Court for dismissing the application for setting aside the ex parte decree are that period for filing such application was 30 days; impugned ex parte decree was passed on 8-42000, application for setting aside the same was moved on 17-7-2000 i.e. Beyond the period of limitation, without any application for condonation of delay hence it was time-bared. Ex parte decree could be set aside only on f two grounds viz. Non-service of summons and sufficient cause for non-appearance.
First ground was not taken up in the application. Petitioner's contention that he learnt about the ex parte decree from residents of the Mohallah was not proved by producing I any person from the Mohallah and his other assertion that power of attorney was not executed by him was not proved on record.
Reasons given by Additional District Judge for dismissing the appeal against the aforesaid order of Family Court are that the petitioner while appearing as A.W.1 admitted during cross-examination that the counsel who put appearance and filed Wakalat Nama on his behalf during trial was the maternal uncle of the petitioner and a practising lawyer; he was not produced by the petitioner in support of his contention and the petitioner satisfied himself by saying that he was not on good terms with his said uncle. If it was so the petitioner had the option to seek comparison of his alleged signatures on the Wakalat Nama with his admitted signatures from a Handwriting Expert but no such request was ever made by him. It may be observed that the fact of not having good relations with his said uncle Advocate was not alleged in the application for setting aside the ex parte decree hence it could be considered as an afterthought and this fact was also concealed by the petitioner that the person who had submitted power of attorney on his behalf was his uncle.
Ex parte decree of maintenance was passed in favour of respondents Nos. 3 and 4 but respondent No.4 was not made a party in the appeal.
During the arguments before the Appellate Court, the learned counsel for the petitioner said that respondent No.4 was not impleaded in the appeal because petitioner does not dispute the impugned decree to the extent of respondent No.4. It is illogical that the ex parte decree to the extent of respondent No.4 is valid but to the extent of respondent No.3 it is without jurisdiction and without lawful authority.
Findings of both the Courts below are based on evidence and were given after examining and assessing the material on record.
Learned counsel for the petitioner could not show that impugned orders suffer from any jurisdictional defect or violate any provision of law or are based on erroneous assumption of facts.
Writ petition being devoid of any merit is accordingly dismissed in limine.