Find a Lawyer

Writ Petition No.607 of 2011, decided on 11th December, 2014.

----Ss. 9(6) & 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dower---Ex-parte decree, setting aside of---Scope---Two documents (Nikahnamas) having distinct entries---Effect---Contention of wife was that dower of seven tola gold ornaments was fixed at the time of Nikah which had not been paid---Husband contended that same had been paid and Nikah Nama produced by the wife was not genuine and was a forged one---Validity---Husband had failed to advance any cogent, convincing and authentic reason of his absence from proceedings before the Trial Court---Earlier request of husband for setting aside ex parte decree had already been turned down by the High Court---Findings with regard to maintenance allowance were well justified and same did not call any interference---Both the Nikah Namas contained distinct entries with regard to payment of dower---Family Court had not considered the said aspect at the time of passing ex parte judgment and decree and had simply relied upon the copy of Nikah Nama tendered by the wife by treating the same as correct and genuine---Family Court had not ascertained the authenticity of said Nikah Nama through the record of concerned union council as there was a specific allegation of same being forged with another copy of Nikah Nama---Family Court was bound to ascertain the veracity of Nikah Nama while deciding the issue of fact---No such effort was made by the Family Court---Suit was decreed on the basis of document tendered by the wife without taking into consideration the objection contained in written statement coupled with the copy of Nikah Nama having distinct and divergent entry---Family Court was bound to consult the record of concerned union council for ascertaining authenticity of two documents before passing the decree---Said important aspect had also skipped from the sight of Appellate Court which would require rectification in order to do substantial justice---High Court had power to annul orders if same were arbitrary and result of non-reading and misreading of evidence or improper exercise of jurisdiction while exercising constitutional jurisdiction---Impugned order of ex parte proceedings was maintained, however ex parte judgment and decree to the extent of recovery of dower were set aside and matter was remanded to the Trial Court for decision afresh within a specified period---Constitutional petition was disposed of accordingly.

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court had power to annul orders if same were arbitrary and result of non-reading and mis reading of evidence or improper exercise of jurisdiction while exercising constitutional jurisdiction. Sardar Tariq Mehmood for Petitioner. Tahir Ishaq Mughal for Respondent No.3.

Petitioner (defendant in main suit filed by respondent No.3) is aggrieved by Ex Parte Judgment and decree dated 21-4-2010 and Judgment and Decree dated 3-2-2011, whereby learned Judge Family Court decreed the suit of respondent No.3 for recovery of dower and maintenance allowance while appeal there-against was dismissed as being time barred. 2. Precisely, facts giving rise to filing of this petition, are that respondent No.3 filed a suit for recovery of dower and maintenance allowance which was initially contested by the petitioner through written statement but after failure of reconciliation proceedings, he was proceeded ex parte vide order dated 15-4-2010 and ultimately suit was decreed ex parte vide Judgment and Decree dated 21-4-2010. 3. On coming to know of it, petitioner filed an application under section 9(6) of the Family Courts Act 1964 which was dismissed vide order dated 28-7-2010 and thereafter he moved the Hon"ble Lahore High Court, Rawalpindi Bench through Writ Petition No. 4117 of 2010 which was also dismissed in limine vide order dated 27-9-2010 by observing that proceedings of the learned Trial Court did not support his version of having no knowledge about proceedings after failure of reconciliation proceedings and that he had to prefer an appeal against the Judgment and Decree. 4. At this stage, the petitioner filed appeal against the Judgment and Decree of learned Trial Court but it was dismissed vide Judgment dated 3-2-2011 by observing that request for setting aside ex parte proceedings had already been turned down by Hon"ble Lahore High Court, Rawalpindi Bench vide order dated 27-9-2010 and, therefore, the court had no power to set aside the same and that no sufficient reason had been advanced to allow the petitioner to adduce his case. Hence, this petition assailing both the orders together with original order dated 15-4-2010 whereby ex parte proceedings 16 were initiated against him. 5. Learned counsel, inter alia, pressed this petition by submitting that if an order, on the face of it, is result of misreading and non-reading of the material available on record, this Court has ample power to set it aside. It is further contended that both the learned courts failed to consider the important objection regarding Nikah-Nama relied upon by the respondent No.3. 6. Learned counsel for respondent No.3, on the other hand, repelled the above submissions. He submits that it is quite evident from order sheets that after failure of reconciliation proceedings, learned counsel for petitioner had been appearing and thereafter ex parte proceedings were initiated against which a writ petition was also filed by him but it was dismissed in limine, therefore, the matter cannot be reopened. He added that both the courts have addressed the grounds advanced by the petitioner and the petition due to having no question of law is liable to be dismissed. 7. Heard and record perused. 8. In order to seek setting aside ex parte proceedings initiated on 15-4-2010, petitioner has failed to advance any cogent, convincing and authentic reason of his absence from proceedings before the learned Trial Court. His earlier request has already been turned down by the Hon"ble Lahore High Court, Rawalpindi Bench, Rawalpindi, vide Judgment dated 27-9-2010. 9. Findings to the extent of recovery of maintenance allowance at the rate of Rs.4000 per month with effect from May, 2008 till subsistence of marriage in the light of evidence available on record were well justified and do not call for any interference. 10. Adverting to main ground of misreading and non-reading of material facts, record reveals that respondent No.3 in her plaint mentioned that at the time of Nikah, dower was fixed as seven tola gold ornaments which are still unpaid and to verify the fact she annexed Nikah-Nama that had been made basis for awarding decree in her favour. The petitioner in his written statement had taken a specific stance together with copy of Nikah-Nama that dower of seven tola gold ornaments had been paid and it is mentioned as such in Nikah Nama and that Nikah Nama relied upon by the respondent No.3 is not genuine and a forged one. Copies of both these documents containing distinct entries against column No. 13 are available on file which read as under:-- ___________________________________RELIED BY PETITIONER ___________________________________RELIED BY RESPONDENT NO.3 11. The learned Trial Court at the time of passing ex parte Judgment and Decree did not consider this important aspect and simply relied upon copy of Nikah-Nama tendered by respondent No.3 by treating the same as correct and genuine without ascertaining its authenticity through the record of concerned Union Council as there was a specific allegation of it being forged with another copy of Nikah-Nama. It is settled principle that court while deciding an issue of fact is under obligation to ascertain its veracity but in this respect no such effort was made and the suit was decreed on the basis of document tendered by respondent No.3 without taking into consideration the objection contained in written statement coupled with copy of Nikah Nama having distinct and divergent entry. It was obligatory for the learned Trial Court to consult the record of concerned union council for ascertaining authenticity of the two documents before passing a decree. 12. The above important aspect skipped the sight of learned Trial Court as well as Appellate Court which require rectification in order to do substantial justice. If the orders are arbitrary and result of non-reading and misreading of evidence or proper exercise of jurisdiction, this Court under Article 199 is competent to annul the same in order to meet the ends of justice. 13. In view of above, while maintaining order of ex parte proceedings dated 15-4-2010, Ex Parte Judgment and Decree dated 21-4-2010 and Judgment and Decree dated 3-2-2011 of the Appellate Court to the extent of Issue No.1 are set aside and the matter is remanded to the learned Trial Court, which shall be decided afresh in the light of observations contained hereinabove within a period of fortnight under intimation to this Court through the Registrar for perusal in Chambers after giving due audience to both the sides. No orders to costs. AG/77/Isl Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.