Naveed Farid Vs Mst. Noreen Bibi etc

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No.6 13-A12023

Naveed Farid (Petitioner)

V/S

Mst. Noreen Bibi & others (Respondents)

Present; Mr. Mazhar Khan Jadoon, Advocate, for the petitioner.

(Respondents are not rePresented being a motion cose).

Dates of hearing: 20.06.2023

JUDGMENT

MUHAMMAD KHAN. J.- Thro ugh the

instant writ petition, petitioner has challenged thc order and judgment of Additional District Judge-V, Abbottabad dated 15.07 .2022, whereby hc dismissed the appeal filed by the present petitioner and maintained the order and judgment of Judge v Family court dated 31.01 .2022 who vide the sarne had dismissed the application of the prcsent petitioner for setting aside of ex-parte judgmenl and decree dated 1 1.01 .2021.

Nluhamrnad Tariq (S.8.) Hou'blc Mr..lustice Nluhammad Ijaz Khan

) Precisely, the facts of the case are that the respondent/wife namely Mst. Noreen Bibi fiIed a suit against the present petitioner for the payment of her dower, dowry articles and maintenance amount etc and after the institution of the suit summons were issued to the present petitioner who put his appearance, however, subsequently he absented himself and thus he was proceeded ex- parte and thereafter ex-parte evidence was recorded and finally an ex-parte judgment and decree dated 1 1.01 .2021 was passed in favour of respondent/wife

3.The record fuither shows that it was on 13.12.2021 when the present petitioner filed an application for setting aside aforesaid ex-parte judgment and decree and this application was duly contested by the respondent/wife, however, the same was dismissed vide one of the impugned order and judgment dated 3 1 .0 | .2022, by the Judge 'L Family Court. The petitioner being aggrieved of the aforesaid order and judgment preferred an appeal before the Additional District Judge-V, Muhammad Tariq (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

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Abbottabad, however, the same was also dismissed vide second impugned order and judgment dated 15.07 .2022 which order and judgment have now challenged by the petitioner through the instant writ petition.

4.Arguments of learned counsel for thc petitioner were heard in considerable detail and thc record perused with his able assistance.

5 The record would reveal that whcn thc suit was filed by the respondent/plaintiff, summons were issued to the present petitioner who personally attended the court on 27.10.2020 and as a proof of his attendance his thumb impression was obtained on the margin of the order shcct dated 27.10.2020. Again he appeared in the Court on 06.11 .2020 and this time he sought some time for engaging a counsel.

4 ,7 6 The record further shows that on 30.11 .2020 one Ms. Sonia Kiran, Advocate, submitted memo of appearance on behalf of preser-rt petitioner and this time she sought some tirne l'or submission of Vakalatnama, however on the Muhammad Tariq (S.8.) IIon'blc IlIr. Justice Muhammad ljaz Khan

adjourned date i.e on 18.12.2020 neithcr the petitioner nor his counsel Ms. Sonia Kiran (who has already submitted memo of appearancc) was present, therefore, notice was issued to the present petitioner for 23.12.2020, however, or the date fixed neither petitioner nor his counsel attended thc court, therefore, he was proceeded ex-parte. In thc given facts and circumstances of the case, it is established on the face of the record that petitioncr was in the knowledge of the pending proceedings against him as it was nobody else but the petitioncr himself who personally appeared on two dates and on the 3'd date his counsel appeared but later on, petitioner absented himself and thus the learncd trial court has rightly initially placcd him ex-par1c and then has passed an ex-parte judgment and decree.

,r 7 The record also shows that despite the fact that petitioner was in the knowledge of thc pending proceedings, however, it was after clevcn

(11)months of passing the ex-parle judgment and decree dated 1 1.01 .2021 when he filed an Iluhamnrad'l'ariq (S.8.) IIon'ble lIr.,Iustice i\Iuhamnrad l.jaz Khan

application for setting aside ex-parte the same on 13.12.2021. The record also indicates that on one hand he has not filed an application for seeking condonation of delay 1n filing of the said application and on the other hand the grounds which he has mentioned in the application arc apparently misconceived as it is the case of present petitioner that infact he had received fire arm injury on 07.04.2020 and that he remained indoor patient from June 2020 till July 2020, however, the record would indicate that it was much thereafter when on 27.10.2020 and then on 06.11 .2020 he was personally present in the court and has sought time to engage a counsel, therefore, the plea that he remained indoor patient due to fire arm injury could not be termed as sufficient cause as contemplated under the law.

8.It is also relevant to mention there that since the instant case is governed by provision of Family Court Act, 1964 and West Pakistan Family Court Rules, 1965, where, section 9 sub scction 6 &. J betng relevant are reproduced as below:- \{uhammad -l'ariq (S.B.) IIon'ble Ilr..lustice Iluhanrnrad Ijaz Khan

e. (1).-"-"

(s)------

(6)In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within [thirty days of the service of notice under subsection (7) of the passing of the decreeJ to the Family Court by which the decree was passed for an order to set it eside, and if he satisfies the Family Court that he was not duly sensed, or that he was prevented by any sfficient cause fro* appearing when the suit was heard or called.for hearing, the Family Court shall, after service of notice on the plaintffi and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit,'

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.J

(7)The notice of passing of the exparte decree referred to in subsection (6) shall be sent to the defendant by the Family Court together with a certi/ied copy of the decree within three days cf -rt the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.

Rule 13 of the West Pakistan Family Court Rules, 1965 which is reproduced as below:- Muhammad Tariq (S.B.) Hon'blc Mr. Justicc Muhammad ljaz Khan

13.Ex parte decree or proceedings may, for sfficient cause shctwn, be set aside by the Court on application made to it within thirQ days of the passing of the decree or dectsion.

The aforesaid provision of law unmistakenly shows that ex-parte decree can only be set asidc if thc judgment debtor satisfies the Family Court that hc was prevented by any sufficient cause when thc suit was called for hearing as per Itule 13 of thc West Pakistan Family Courts Rules, 1965 an application for setting aside ex-parte decrec has tcr be made within 30 days of the passing of thc decision however, in the present casc, as stated hereinabove, the petitioner was duly served and hc personally attended the court but thereafter hc opted to absent himself from the court procceding, therefore, his application after eleven (11) months of the judgment and decree is hopelessly time ,s/ barred. It may be noted that The West Pakistan Family Courts Act, 1964 and the Rules framed thereunder are special laws governing special disputes amongst the spouses, thereforc, thc legislature have intentionally enacted the aforesaid Statutes/Rules that the disputes amongst the Nluhammad 1'ariq (S.8.) [Ion'ble NIr.,Iustice Muhammad ljaz Khan

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spouses inter-se should be taken to the logical end at the earliest, therefore, as per section 9 sub- section (6) of the aforesaid Act R/W Rule 13 of The Family Court Rules 1965 an aggrieved person is required to file an application for setting aside ex-parte decree within a period of thirty days of the passing of decree but the petitioner has delayed the same for almost eleven (11) months and that too when he was well in the knowledge of the pendency of the proceedings against him, therefore, the impugned orders and judgments of the two Courts below do not called for any interference 9 It may be noted that under Article 164 of The Limitation Act, 1908 a period of thirty days has been provided for filing an application for setting aside an ex-parte decree, however, in the present case such application has been filed almost v after 11 months, the petitioner has also not filed any application for the condonation of delay in filing of the instant application. It is settled by now that the delay of each and every day has to be explained by a party and the same should not be Nluhammad Tariq (S.B.) IIon'ble Mr. Justice Muhammad Ijaz Khan

taken in a mechanical manner. In the case of "Lul Khan throush Z.Rs Muhummad Yousuf'

thlausb L,Rs" reported as PLD 2011 Supreme Court 657 it was held by the Apex Court that any aggrieved person has to pursue his legal remcdics with diligence and if a petition or a suit is filed beyond limitation, each day's delay has to bc explained. Similarly, in the case of "Honda Atlcts Csrs (Pakistant Limited v/s Honda Sarhsd (Pvt.t Ltd & others" reported as 2005 SCMR 609 it was also observed by the Apex Court that plea raiscd by appellants was that the applications were timc- barred as the same were filed beyond the period of thirty days and no application for condonation ol- delay was filed by respondents. Both the applications were beyond the period of limitation i.e. 30 days under Arts.163 and 164 of Limitation Act, 1908, therefore, it was incumbent upon thc

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respondents to have availed the benefit of S.5 of Limitation Act, 1908. If there was delay in {rling applications, the respondents should have invokcd the provisions of S.5 of Limitation Act, 1908 Respondents had not approached the 'frial Court I\{uhammad Tariq (S.R.) Hon'blc NIr. .Iusticc Muhamrnad ljaz Khan

for setting aside orders adversely operating against them within 30 days, nor there was any request for condonation of delay in filing of applications, therefore Trial Court had rightly declined to restore the suit and to set aside ex parte decree.

10.It is by now settled that the law of limitation is not to be taken lightly and the same is no more a mixed question of law and facts but the same has to be treated as a question of law. It has also been settled that it is the duty of the Court to adhere and attend to the question of limitation as Section 3 of The Act of 1908 do require from a Court of law to address the question of limitation even if the same has not been agitated as a defence by u party.Recently alarger Bench of the Hon'ble Apex Court in the case titled Khushi Muhammad throuqh L.Rs. and oth ers vs. Mst. Fazal Bibi and others reported as PLD 2016 Supreme Court ^r 872 has held that the purpose of the laws of limitation is to establish certainty in the affairs of men, to bring repose and to bring an end to litigation after a certain time period has expired Muhammad Tariq (S.B.) Hon'ble Mr. Justice Nluhammad Ijaz Khan

from accrual of an actionable right. It was also held that before considering the propositions above, it is expedient to mention certain salient features which have been settled over a period of time by the superior Courts for the purposes of interpretation of the law of limitation. These are:- i. The law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly; t9 ii. The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties;

Muhammad Tariq (S.B.) tlon'ble Mr. Justice Muhammad Ijaz Khan

iii. It is salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the caSe comes strictly within the ambit of the provision;

iv. There is absolutely no room for the exercise of any imagined judicial discretion vis-ir-vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The Court cannot claim any special inherent equity jurisdiction;

v A statute of limitation instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should have received such support from Courts of justice as would have made it what it was intended emphatically to be, L statute of repose. It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere ( ,y technical plea as it is based on sound public policy and no one should be deprivcd of the right he has gained by the law. It is indeed often a righteous defence. The Court has to only see if the defence is good in law and not if it is moral or conscientious; Nluhammad Tariq (S.8.) Ilon'ble lllr. .Iusticc l\'luhammad Ijaz Khan

vi. The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to il suit to enforce an existing right;

vii. The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suitor;

viii. Construing the Preamble and Section 5 of the Act it will be seen that the fundamental principle is to induce the claimants to be prompt in claiming rights.

Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly bc encouraged or countenanced.

11.It may also be noted that the petitioner through the instant writ petition is seeking a declaration to the effect that the order and judgment of the Judge Family Court and appellatc Court are illegal, however, to obtain favourable order, petitioner has to show that either thc Court below has exceeded its jurisdiction or it has not properly exercised jurisdiction or it was not having jurisdiction, however, he could not pointed out any such legally recognized ground for the issuancc of Muhammad Tariq (S.l).) [Ion'ble Nlr. ,lusticc Muhamrnad liaz Khan

the writ of a certiorari. In the case of Amiad Khan v^s. Muhummad lrshud (deceased) roush LRs reported as 2020 scMR 2155 the Hon'ble Apex Court has held that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non- reading of evidence, or is not in accordance with the law. If none of these errors is present, the I{igh Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter Similarly, in the case of "Chief Exec utive Meno &

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V others v/s Muhammud Fazil & othert reported as 2019 SCMR 919. the Hon'ble Apex Court has declared that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or Muhamnrad Tariq (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

material irregularity IS pointed-out, such determination cannot ordinarily be interfercd with by the High Court while exercising jurisdiction under Article 199 of the Constitution. In the casc of "Chairmsn NAB v/s Muhammad Usman & others" reported as P ,

the Hon'ble Apex Court has held that the powers of judicial review vested in High Court undcr Article 199 of the Constitution is no doubt a great weapon in the Judge's hands, however, the samc shall not be exercised in a case where discretion is exercised by the subordinate court/'l-ribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at r random and in routine manner.

12.In view of the above discussion, thc petitioner/plaintiff has not been able to make out any case for interfere in the impugned orders of,thc two courts below which neither suffcrs from any illegality or irregularity nor the same is the result of Nluhammad'fariq (S.l|.) I{on'blc illr..lusticc N'Iuhamrnad Ijaz Khan

an improper exercise of jurisdiction, therefbre, the same are maintained and upheld and consequently

tlre instant writ petition is dismisscd in limine.

Announced 'a Dt: 20.06.2023 E

!Iuhammad'l'ariq (S.8.) Ilon'hlc l\lr. Juslicc Muhanrmatl Ijaz- Khan