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Constitutional of Petition No. S‑22 of 1981, decided on 3rd May, 1983.

‑‑ O. IX, r. 13‑Decree ‑ Ex parse, setting aside of ‑ Petitioner neither making any request to trial Court to allow him to participate in proceedings after his application for setting aside ex parte decree rejected nor appearing himself before Court for purpose‑Contention that trial Court in spite of rejection of application should have allowed him to participate in proceedings, held, without merit.

‑‑ Art. 9‑Decree awarded by trial Court against petitioner with regard to claim of respondent (divorcee of petitioner) on account of expenses spent over delivery of child based on bills produced on her behalf ‑In other two suits in which decrees awarded certain facts alleged on behalf of respondent remaining uncontroverted on account of proceedings being ex parte wherein petitioner had not partici pated‑Trial Court, held, rightly accepted versions in suits against petitioner No illegality committed by trial Court in awarding said decrees to respondents‑Interference declined in writ jurisdiction.

Abdul Hafeez Lakho for Petitioner.

Syed Zia Hussain Shah A. Hussaini for Respondent No. 1.

Date of hearing : 3rd May, 1983.

The petitioner and respondent No. 1 were married in 1970‑71. The petitioner sent a "Talaqnama on 25th October, 1978 dissolving his marriage with respondent No. 1. On or about 2nd January, 1979, respondent No. 1 filed three separate suits against the petitioner in the Court of Civil Judge' Family Court, Thatta. In one suit she claimed Rs. 3,600 towards the expenses borne by her father during delivery of a child while she was admitted in Civil Hospital, Hyderabad. This suit was decreed ex parte in favour of respondent No. I for Rs. 1,930.10 The second suit, a family suit, was filed for the recovery of Rs. 5,000 claimed by respondent No. 1 as dower and Rs. 6,500 on account of dowery. That was also decreed ex parte.

In the third family suit, respondent No.1 claimed maintenance for herself at Rs. 400 per month and at Rs. 150 per month for the only child out of the wedlock. The claim was made with effect from December, 1977. In the suit it was claimed that the "talaq" had not become effective in view of the provisions of the Family Laws Ordinance, 1961 and maintenance was claimed for herself up to the time it became effective and thereafter for "Iddat" period. This suit was also decreed ex parte.

2. The case of the petitioner is that he had been served with summons in all three suits for appearance on 27th January, 1979, on which date he appeared with his counsel and sought an adjournment, which was granted and the case was adjourned to 31st March, 1979. It is averred on behalf of the petitioner that daring this period father of the respondent No. 1 has approached the petitioner for a settlement and the petitioner was assured that the cases would be withdrawn and that the petitioner need not appear in the three suits before the Court and on such assurance the petitioner did not appear on or after 31st March, 1979 up to 1st July, 1979 before the Court. However, then he came to know of the pendency of the suits and the ex pane proceedings pending against him and in the circumstances he filed separate applications for setting aside the ex parte orders. These applica tions were rejected by the learned Civil Judge/Family Court by his order dated 31st July, 1979. Thereafter ex pane judgments were passed by the trial Court. The petitioner filed civil appeals against the three ex parte judgments, but the appeals of the petitioner were also dismissed, hence this petition. I have heard Mr. Abdul Hafeez Lakho, learned counsel for the petitioner and Mr. S. Zia Hussain Shah A. Hussaini, learned counsel, who appeared on behalf of the respondent No. 1.

2. It was first contended by the learned counsel for the petitioner that even if the applications for setting aside the ex parte proceedings/orders had been rejected by the trial Court, he should have allowed the petitioner to participate in the proceedings. There is nothing on record to indicate that any request or application was made in writing or orally by or on behalf of the petitioner to the trial Court after his applications for setting aside the orders for ex parte proceedings had been rejected that he may be allowed to participate in the proceedings or that the trial Court had res trained the petitioner from participating in the proceedings. Memo of the appeal filed before the District Judge by the petitioner had not been filed alongwith the present petition but Mr. Abdul Hafeez Lakhos learned counsel for the petitioner had shown copies of the memo. of appeals and on a perusal of the same I find that no such ground had been taken in the memo. of appeals. It, therefore, follows that it was not the grievance of the peti tioner that he had not .been allowed to participate in the proceedings before the trial Court. It follows further that after his applications for setting aside the orders for ex parse proceedings had been rejected, the petitioner himself did not appear before the trial Court for participating in the pro ceedings. I find no merit in the contention raised in this behalf by the learned counsel for the petitioner.

It was next contended that even to ex parte proceedings, the Courts must apply their minds while pronouncing judgments and in the instant cases it appears that there has been no judicial, application of mind by the trial Court. I find no substance in the contention of learned counsel for the petitioner in so far as the facts of the instant cases are concerned. In s far as the case of the medical, expenses is concerned, respondent No. 1 had claimed a sum of Rs. 3,600 but the trial Court did not allow the full claim but only passed a decree for Rs. 1,930.rO for which amount bills had been produced on behalf of respondent No. 1. In so far as other suits are concerned, certain facts had been alleged on behalf of the respondent No. 1 and the same were not controverted, as proceedings were ex parte and the petitioner did not participate in the proceedings. In the circumstances, in the other two suits, the trial Court rightly accepted the version presented on behalf of the respondent No. 1. I see no illegality committed by the trial Court so as to call for interference under the Constitutional juris diction of this Court.

3. Learned counsel had raised certain contentions regarding the finding of the trial Court as well as the appellate Court against the petitioner on the application of the limitation. However, it is not necessary to refer to the submissions of the learned counsel in this regard, as I do not find any substance in the present petition.

4. As a result, Constitutional Petition No. S‑22 of 1981 is dismissed with costs in favour of respondent No. 1.

M. Y. H. Petition dismissed.

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