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Constitutional Petition No.. 121 of 1983, decided on 15th August, 1983.

----‑ Art. 9‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2 ‑Divorce‑ Concurrent findings of fact‑interference in constitutional jurisdiction ‑Concurrent findings of fact based upon material on record that it is not possible for spouses to live together as husband and wife within prescribed limits of God‑Held, cannot be validly chal lenged by invoking extraordinary constitutional jurisdiction of High Court.

.‑‑ Art. 9‑‑‑Concurrent finding of fact‑Interference‑Courts having law ful jurisdiction to decide disputes brought before them have jurisdiction to decide same‑Merely because another view could be taken by any other Court, held, does not render such decision as without lawful authority, Muhammad Hussain Munlr and others v. Sikandar and others P L D 1974 S C 139 ref.

----‑ Art. 9‑Civil Procedure Code (V of [908), O. IX, r. 13‑Ex parte judgment, setting aside of‑Petitioner served by registered post A/D as well as by publication‑‑No case of any fraud made by petitioner nor sufficient good cause shown to set aside ex parte judgment by Family Court‑Petitioner, held, could not successfully challenge order rejecting application for setting aside ex parte order by invoking consti tutional jurisdiction.

Mst. Ismat Khanam Toor v. Riaz Ali Khan and others 1978 S C M R 335 (2) ref.

‑‑ Art. 9‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2‑ Civil Procedure Code (V of 1908), O. IX, r. 13‑Petitioner's application for setting aside ex parte judgment dismissed on merits Appeal filed against that judgment also dismissed‑Chairman, Union Council confirming marriage, presumption being that such action taken after notice to husband‑Nothing to show that ex parte order passed by competent Courts of jurisdiction, suffering from any infirmity which rendered same as without lawful authority or of no legal effect Petition dismissed.

Muhammad Jamil v. Sarwar Jahan and others 1983 S C M R 398 ref.

Shaffat Husain for Petitioner.

Nemo for Responent.

Date of hearing : 15th August, 1983.

By this petition, filed under Article 9 of the P. C. O. the petitioner prays for the declaration that the ex parte judgment dated 30th August. 1981, passed in Family Suit No. 1829/79, whereby the marriage between the petitioner and respondent No. 1 (Mst. Shaista) was dissolved by way of Khula by the Family Court at Karachi is without lawful authority and of no legal effect. He also prays that the order, dated 25th March, 1982, passed by the learned Family Court refusing to set aside the ex‑parte judg ment and decree mentioned above and thus dismissing his application, be also declared as without lawful authority in excess of jurisdiction and of no legal effect.

I have heard Mr. Shaffat Husain the learned counsel for the petitioner, husband of Mst. Shaista the respondent.

A perusal of the ex parte judgment passed in Family Suit No. 1829/ 1979 shows that the respondent No. 1 filed the suit for dissolution of her marriage with the petitioner on 7th June, 1979. On the facts pleaded in the plaint on oath supported by affidavit filed by the respondent/wife and which were held not to have been rebutted by the petitioner (hereinafter referred to as the husband) and further finding that the husband though served with summons by registered post (AD) as well as by publication/substituted sera vice, had remained absent and there being no reason to disbelieve the version of the plaintiff/wife, decreed the said suit dissolving the marriage between the parties by way of Khula with no order as to costs. It was further held, "in consideration of Khula plaintiff is not entitled for dower, past main tenance as well as Iddat period."

It may be mentioned that in the plaint serious allegations were made against the husband. It was inter alia pleaded that soon after the marriage the petitioner/husband started making unwarranted demands and thus compelled the respondent No. 1/wife to get financial aid from her parents that he also extorted money from her to purchase a motor‑cycle for him, that though separate arrangement was made by her parents foe the residence of the cou ples but the petitioner/husband being a greedy person, went to the extent of even blaming her of bad character and to attack her piety to her great shock, making her life miserable and that he started maltreating her and even gave physical beatings. One of such incidents according to the plaintiff/ wife took place on 24th June, 1980 when the husband again beat her and after doing so took away her golden ornaments and other dowry articles. A report to this effect was lodged in the P. S. Nazimabad. Even after this incident the petitioner (husband) and his parents continued to threaten the plaintiff (wife and her brothers with dire consequences which led to filing of another complaint at the same police station on 30th July, 1980. On these facts, amongst others, it was pleaded by the plaintiff/wife the spouses could not continue to live together, at any cost, that there was danger to her life and that they could no longer live together. within the prescribed limits of GOD and thus prayed for dissolution of marriage on the basis of Khula.

2. The learned Family Court believed the version of the plaintiff/wife on the material on record and decreed the suit ex parte as mentioned above.

3. The petitioner against the above filed Family Appeal No. 56 of 1982 in the Court of District Judge at Karachi which was transferred for disposal to the learned IIIrd Additional District Judge, Karachi, who dis. missed the said appeal by judgment announced on 16th April, 1983 with the observation that there were no reasonable grounds to set aside the decree for dissolution of marriage. It was further observed that dissolution of mar riage had already been confirmed by the Chairman Union Council since after the passing of the judgment by the learned Family Court.

4. A perusal of the record further shows that on 12th January, 1982 the husband/petitioner had also moved an application, dated 12th January, 1982 for setting aside the ex parte decree, passed by the learned Family Court. The said application was dismissed by the learned Family Court by order passed on 25th March, 1982 on coming to the conclusion that repeated efforts were made to serve the husband/petitioner in the normal course through bailiff but all such attempts failed. It was further held that the petitioner/ husband was served with the notice of the suit through registered post (A/D) and even by substituted service. It was accordingly held that the suit rightly proceeded ex parte, The learned Family Court further observed that the husband failed to establish that no notice was issued to him before the confirmation of the divorce by the Chairman.

The above application for setting aside ex-parte decree as mentioned above was dismissed with the further observation that in view of the circumstances of the case it could not be said that the ex parte judgment had been obtained by fraud. The learned Court also held that no sufficient or good cause was shown to set aside the said ex parte judgment.

5. The learned Advocate for the petitioner has attacked the findings given in the suit, appeal and on the application which have been referred above, by invoking the constitutional jurisdiction of this Court.

6. After going through the record and hearing the learned counsel for the petitioner, I find that no grounds calling for any interference with the im pugned orders have been made out. The Family Court as well as the learned appellate Court has given concurrent findings of fact based upon material on record that in the circumstances of the case it was not possible for the parties to live together as husband and wife within the prescribed limits of GOD.

Besides, the application for setting aside the ex parte judgment and decree was dismissed by the Family Court on 25th March, 198 2 on the finding that no sufficient cause had been made out to set aside the said judgment.

7. The findings given as above by the two Courts of competent juris diction while decreeing the suit and dismissing the appeal and the order of dismissal of the application for setting aside the ex parte judgment passed on 25th March 1982 by the Family Court, based as they are on appreciation of facts cannot validly be challenged by invoking the extra‑ordinary constitutional a jurisdiction of this Court. The Courts having lawful jurisdiction to decided the disputes brought before them for decision, have jurisdiction in law to decide the same and merely because another view could be taken by any other Cour4 would not render such decisions as without lawful authority. Reference if needed may be made to the case of Muhammad Hussain Munir and others v. Sikandar and others (P L D 1975 S C 139) wherein the Honourable Supreme Court held as follows;---

"It is wholly wrong to consider the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the constitution makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction.'

8. As regards the submission of the learned counsel for the petitioner that sufficient ground existed for setting aside the ex parte judgment, am however of the opinion that the learned Family Court on the material on record having come to the conclusion that the petitioner had been served by registered post A/D as well as by publication and that in obtaining ex part judgment no case of any fraud had been made out by him and that no sufficient good cause was shown to set aside the ex parte judgment, the petitioner cannot successfully challenge the said order rejecting the said application by invoking constitutional jurisdiction of this Court. The view taken by me as above finds support from the authoritative pronouncement of the Hon'ble Supreme Court made in the case of Mst. Ismat Khanam Toor v. Riaz Ali Khan and others (1978 S C M R 335) wherein it was held that in the exercise of its constitution jurisdiction the High Court could not convert itself into an appellate Court. These observation were made by the Hon'ble Supreme Court while setting aside the judgment of the High Court passed in writ petition instituted by the husband, who had challenged the ex parte judgment and decree passed against him dissolving his marriage by the Family Court.

The circumstances of the present case also show that not only his application for setting aside the ex parte judgment was dismissed on merits but a even the appeal filed against the judgment had also been dismissed by the Court on merits by coming to the conclusion that no reasonable ground to set aside the decree for dissolution of marriage had been made out.

Further 1 find, as rightly noted by the learned Family Courts, that con firmation of the marriage by the Chairman, Union Council had already taken place, the presumption being that such an action was taken after notice to the husband.

9. For the reasons discussed above and as laid down by the Hon'ble Supreme Court in the case of Muhammad Jamil v. Sarwar Jahan and others, (1983 S C M R 398) the policy of law being to confer a finality on such decrees, in the circumstance of the present case, there being nothing to show that the orders passed by the competent Courts of jurisdiction, suffered from any infirmity which rendered them as without lawful authority or of no legal effect, this petition is dismissed in limine.

M. Y. M Petition dismissed.

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