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Writ Petition No. 489 of 1984, decided on 2nd October, 1985.

‑‑‑S. 8‑‑Family suit‑‑Mode of service of defendant not in accordance with procedure ‑Correct and fresh address of defendant not filed in Court, as per order of Court ‑Trial Court acting on report of process server, that on refusal of defendant to receive summon, he had affixed a copy thereof on outer door of such defendant, ordering ex parte proceedings‑‑Course adopted by trial Court; without having recourse to substituted service, and merely acting on suo Motu report of process server, held, was invalid and against mandatory requirement of law‑‑By granting decree as result of such invalid and faulty service, trial Court acted in excess of jurisdiction.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61 rel.

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Ex parte decree being result of invalid service of defendant, High Court in constitutional jurisdiction set aside same being in excess of jurisdiction of trial Court‑ Case remanded to trial Court with direction to decide on merit after due service of defendant in accordance with law .

Fazle Akbar for Petitioner.

Safirullah Khan for Respondents.

Date of hearing: 3rd September 1985.

‑‑ Muhammad Qayum Baig petitioner herein has filed this Constitutional writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with the Provisional Constitution Order, for a declaration to the effect that ex parte decree and judgment of Senior Civil Judge (Family Court Judge), Mardan, respondent No. 2 herein, dated 19‑2‑1983 in favour of Mst. Sabira Sultana respondent No. 1 herein, is without jurisdiction and lawful authority being against the mandatory provisions of section 8(1) and (2) of the Family Courts Act, 1964, and is totally void and illegal. He has, therefore, prayed that the impugned ex paxte decree and judgment passed in suit No. 97/FC on 19‑2‑1983 be declared as void and ineffective.

2. The facts relevant for the purpose of this writ petition, briefly stated, are that Mst. Sabira Sultana, respondent No. 1, filed a suit against Muhammad Qayum Baig, petitioner herein, in the Court of Family Judge, Mardan, respondent No. 2 herein, for the recovery of Rs.5,000 in cash, Rs.10,000 as the price of five Tolas golden ornaments which were allegedly given to respondent No. 1 as her dower and also for the recovery of Rs.100 per month as her maintenance from January, 1981 till December 1982 and onwards.

3. This writ petition was admitted to full hearing on the grounds that according to the petitioner service was effected upon him in this case under the provisions of section 8 of the Family Courts Act, 1964 as amended by the West Pakistan Family Courts (Amendment) Act, 1969; that this amendment Act had in fact been repealed by the West Pakistan Repealing Ordinance, No. XVIII of 1970 meaning thereby that the service should have been effected through the two newspapers as laid down in section 8(2) of the unamended Act XXXV of 1964 which in this case has obviously not been done; that as the service was not done according to law, therefore, the Courts below have acted in excess of their jurisdiction in granting decree of dower to the respondent No. 1.

4. We have heard the learned counsel for parties at length and have also gone through the record with their help and also the law applicable to the case in hand. The learned counsel for the petitioner argued, by giving the facts of the case of the petitioner, that. the marriage between the petitioner and respondent No. 1 was solemnised on 25‑6‑1976 at Mardan in accordance with Islamic Law; that they lived together in House No. 30, Bihari Colony, Attock City Punjab, for over six years, during which two children were born to them i.e. a daughter aged 51 years and a son aged 31 years. He further submitted that the parents of respondent No. 1 used to visit her parents, which the petitioner could not afford. Thus, there was always considerable arguments with the father of respondent No. 1 on this matter; that the friction increased and ultimately the father of respondent No. 1 demanded that her daughter be divorced; that the petitioner consequently divorced his wife Mst. Sabira Sultana, respondent No. 1, on 16‑8‑1982 in the morning and when returned home after attending to his work he found that respondent No. 1 had left the house accompanied and persuaded by her father and took all the ornaments, clothes furniture etc. and left behind the two children with the mother of the petitioner. He further submitted that the petitioner tried his best to bring back respondent No. 1 or to settle the matter domestically as the divorce was not final, but having failed to achieve any results, lodged a suit in the Court of Senior Civil Judge, Attock, against respondent No. 1 for the recovery of Rs.20,000 but the same was dismissed on the ground that respondent No. 1 had taken away the ornaments etc. as it were gifted to her by the petitioner. The learned counsel further submitted that the petitioner came to know of the ex parte decree only when he was summoned during the execution proceedings at Mardan, whereafter atonce he filed an application in the Court of respondent No. 2 for setting aside the ex parte decree, dated 19‑2‑1983, but his application was rejected on the ground that it was not within time as laid down in rule 13, vide order, dated 5‑3‑1984. The petitioner then filed an appeal which was also rejected by the learned District Judge. Mardan, respondent No. 3, vide order, dated 20‑10‑1984. The learned counsel for the petitioner assailed the judgment of the lower forums on the grounds that the ex parte decree of the learned trial Court in Suit No. 97/FC, decided on 19‑2‑1983 is illegal, improper, void and against the facts on records; that it is evident from the perusal of the order- sheets of the proceedings, attested copies placed on record as Annexures D.1 to D.6 of the ex parte decree that respondent No. 1 had deliberately and fraudulently avoided and disregarded the mandatory provisions of subsection (1) of section 8 of the Family Courts Act, 1964, regarding intimation to the defendant (now the petitioner) that she had instituted a suit under Family Laws in the Family Court, at Mardan. She was required under the law to inform the petitioner by registered post, within three days of filing of her suit, sending alongwith it copies of all the documents and schedule as mentioned in section 7(2) of the said Act. The respondent No 1 also failed to cause a notice published in any approved newspaper as required by subsection (2) of section 8 of the Family Courts Act, 1964, thus rendering the entire proceedings infructuous and void; that the learned trial Court has failed to exercise its discretion judicially as envisaged in the Family Court Rules, 1965 by refusing to accept the plea of the petitioner that he came to know of the ex parte proceedings against him when he was summoned by the executing Court while executing the ex parte decree, dated 19‑2‑1983. Lastly, the learned counsel for the petitioner argued that both the learned lower Courts had seriously erred in overlooking the patent irregularity with regard to the non‑compliance of the mandatory provisions of the Family Courts Act and Rules, which vitiate the entire proceedings.

5. Now we would, in view of the above arguments, like to advert to the law applicable to the facts of the case and for consideration of which this writ petition was admitted to full hearing. Section 7 of the West Pakistan Family Courts Act, 1964 runs as under:‑

7. (1)‑‑ Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and in such Court as may be prescribed. (2) The plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and a brief summary of the facts to which they would depose:

Provided that the parties may, with the permission of the Court, call any witness and at any later stage, if the Court considers such evidence in the interests of justice."

Section 8 of the said Act, on which great stress has been laid by the learned counsel for the petitioner, runs as under:‑

8.(1)‑‑Where a plaint is presented to a Family Court it:

(a) may fix a date ordinarily of not more than thirty days for the appearance of the defendant;

(b) shall issue summons to the defendant to appear on a date specified therein;

(c) shall within three days of the presentation of the plaint, send:‑

(i) to each defendant, by registered post, acknowledgment due a notice of the suit, together with a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7 and copies of the documents and a list of documents referred to in subsection (3) of the said section; and ‑

(ii) to the Chairman of the Union Council within whose, jurisdiction the defendant or defendants as the case may be, reside, and where the defendants reside within the jurisdiction of different Union Councils, to the Chairman of every such Union Council, a notice of the plaint having been presented.

(2) Every summons issued under clause (b) of subsection (1) shall be accompanied by a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7, and copies of the documents and list of documents referred to in subsection (3) of the said section."

We have with the help of the learned counsel for the parties perused the order‑sheets of the trial Court, particularly, dated 28‑11‑1982, which is as under: ‑ ,

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Subsequent order sheet , sated 23-12-1982 is of great importance in the circumstances of the present case and the same is as follows :

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A bare reading of order‑sheet, dated 28‑11‑1982 shows that the address of the defendant, now petitioner, was incomplete and the plaintiff, now respondent No. 1, was directed to file complete correct address on 23‑12‑1982. A look pt the order‑sheet, dated 23‑12‑1982 further proves that the plaintiff, now respondent No. 1, was again directed to file fresh address of the defendant, now petitioner alongwith a registered envelope within a week after which summons was to be issued in the name of the petitioner. This order‑sheet does not carry the words that service of the defendant, now petitioner, if not possible by ordinary means, it should be advertised in newspaper, nor the order speaks about substituted service, but strangely enough the learned trial Judge has added in the same order‑sheet that according to the report of the process‑server of the Court of Senior Civil Judge, Attock, the defendant, now petitioner, has been served through substituted service, is absent and placed ex parte. The above procedure adopted by the learned trial' Court clearly shows that he had not complied with the mandatory provision of section 8 of the West Pakistan Family Courts Act, 1964. The record shows that even the correct and fresh address of the petitioner was not filed by the respondent No. l as ordered by the learned trial Court, , and the summons which was issued on the old address was received back with the report that it was insufficient. Besides above, as the petitioner was admittedly living in Attock City, a notice shall have to be advertised in any approved newspaper under the law, which has also not been done in the case in hand. Over and above all, there is no mention of the fact in the order‑sheet, dated 28‑11‑1982 that if personal service of the petitioner was not possible, then he should be served through substituted service, but strangely enough the process server of the Court of Senior civil Judge, Attock reported at the back of the summons EXh.R.W.l/1, that the petitioner was not going to accept' the summons therefore, he prepared copy thereof and affixed it at the outer door of his house, and the trial Judge acting on this sue motu report passed the order on 23‑12‑1982 proceeding ex parte against the petitioner. Such a recourse has rendered all the subsequent proceedings to be invalid and against the mandatory requirement of an absolute statutory enactment. If any authority is needed on the point, reference can conveniently be made to a case reported in Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61 wherein their Lordships of the Supreme Court have held as under:‑

"Neglect of plain requirement of an absolute statutory enactment prescribing how something is to be done‑‑Held, would invalidate thing being done in some other manner‑‑Enactment whether absolute or merely directory. It is well‑settled that the neglect of the plaint requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory It is not possible to lay down a general rule. of universal application in this behalf, but the one which is suggested by‑ the reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute, and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language.

As a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, nowithstanding the fact that the provisions thereof are expressed in merely affirmative language."

6. In view of the abovementioned circumstances and the legal flaw in the case in hand, we are of the firm opinion that the two Courts below have acted in excess of their jurisdiction in granting decree of dower etc. to respondent No. 1. Accordingly, we declare both the impugned judgments to be void and ineffective against the interest of the petitioner.

7. In the result, we would accept this writ petition and set aside the judgments of respondent No. 2 dated 19‑2‑1983 and of respondent No. 3, dated 20‑10‑1984 with the direction that the suit would be deemed pending before Judge, Family Court, who is to decide the same on merits after due service of the defendant, now petitioner, in accordance with law. Keeping in view the circumstances of the case, we would make no order as to costs.

A . A . Petition accepted.

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