Dolat Khan Vs Mst. Bakht Nisa

JUDGMENT SHEET

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.733-A of 2017

JUDGMENT

Date of hearing...............26.07.2017.................................

Petitioner(s) ...(Dolat Khan) by Mr. Abdul Salam Mufti, Advocate.........

Respondent(s)...(Mst. Bakht Nisa etc).................................

SYED MUHAMMAD ATTIQUE SHAH, J.-

Through instant petition, the petitioner approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

“It is, therefore, most humbly prayed that on acceptance of the instant writ petition, the case be remanded back to the trial Court/ respondent No.4 with the directions to proceed with the case according to law and decide the case on merit after filing of written statement, framing issues and recoding of evidence of the parties and any other relief which this Honourable Court deem fit

and appropriate in the circumstances of the case, may also be granted.”

2.Brief facts of the case are that

respondents No.1 to 3 brought a family suit against the petitioner in the Court of learned Judge Family Court, Battagram. The present petitioner was summoned by the learned trial Court and upon his failure to appear before the Court, he was proceeded against exparte vide order dated 11.03.2014. After recording exparte evidence, a decree was passed in favour of respondents No.1 to 3 on 02.05.2014.

Later, on 03.02.2015, the respondents No.1 to 3 submitted execution petition before the executing Court against the present petitioner, wherein again he was served and he appeared before the Court and moved an application for setting aside the said exparte decree. Similarly, the present petitioner also submitted an application under section 12(2) C.P.C alongwith application for staying of execution proceedings. However, the said application under section 12(2) CPC was subsequently withdrawn by the petitioner. The learned lower Court dismissed the application for setting aside exparte decree vide

order dated 28.07.2016 on the ground of limitation.

Being aggrieved, the present petitioner challenged the judgment of lower Court before the Appeal Court, which was dismissed vide judgment dated 10.07.2017. Hence, the present writ petition.

3.Learned counsel for the petitioner argued that the petitioner was never served in the initial proceedings before learned Judge Family Court and the exparte decree was obtained on the basis of fraud and misrepresentation and thus the petitioner has been deprived of his valuable rights of defence. He prayed for setting aside the impugned judgment and orders of learned lower Courts below on acceptance of present writ petition.

4.Arguments of the learned counsel for the petitioner heard and the available record perused.

5.It transpires from record of the case that a suit for recovery of dower, dowry and maintenance was filed against the present petitioner on 10.12.2013.

In the said suit, notice was issued against the present petitioner and he was served through registered AD post but he failed to appear before the Court and was thus proceeded against exparte on 11.03.2014.

Perusal of record reveals that the present petitioner

was duly served through registered post and in this respect ‘Acknowledgement Due’ (AD) card is available on record of the case. The record further transpires that marriage between the parties is still in existence. Moreover, no plausible reason has been shown by the present petitioner for his non- appearance before the Court in his application for setting aside exparte decree. It was mentioned by him that the respondents have obtained exparte decree from the Court through fraud by giving wrong address in the plaint. However, in the application for setting aside exparte decree and on the petition u/s 12(2) CPC as well as on the appeal before the Appellate Court, the present petitioner himself mentioned the same address. Moreover, the petitioner has never controverted the receipt of registered post by Jan Muhammad in his application for setting aside exparte decree nor in his 12(2) petition and as well as in his appeal. Moreover, AD card is available on record of the case and it is evident from the same that it has been received by Jan Muhammad, whose CNIC number is also mentioned thereupon. Apart from the above, the application for setting aside was filed after lapse of one year, which was hopelessly time barred

and therefore the same has rightly not been considered by the Courts below.

6.It transpires from the record that the present petitioner has never paid any maintenance to respondents. It is also evident from the record of the case that the petitioner has contracted second marriage in the year 2001, whereas, respondent No.1 alongwith her daughters, respondents No.2 and 3 are residing in the house of her parents. During all this period the petitioner has not fulfilled his obligation towards the respondent No.1 as well as respondents No.2 and 3.

7.In view of above, this Court reached to the conclusion that both the learned Courts below have properly appreciated entire facts and the law applicable thereto while rejecting application and appeal of the present petitioner. Learned counsel for the petitioner could not point out any illegality or material irregularity in passing the impugned judgments and orders. Moreover, the petitioner has approached this Court in its equitable jurisdiction and it is well settled principle of law that he who seeks equity must do equity himself.

8.For the foregoing discussion, the present writ petition being bereft of merits is dismissed in limine..

Dt.26.07.2017. JUDGE M.Saleem/*