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Writ Petition No. 238 of 1986/ WP, decided on 27th September, 1986.

(a) Constitution of Pakistan (t9'13)‑

Art. 199‑West Pakistan Family Courts Act (XXXV of 1964), S. 14 ‑Dissolution of marriage by Khula‑Suit of respondent wife decreed ex parse by Trial Court‑Such decree later set aside by Trial Court on application of petitioner‑District Judge on appeal by respondent setting aside order of Trial Court whereby ex parte decree was set aside‑Order setting aside ex parse decree, held, was not appealable under S. 14 of Family Courts Act, 1964, nor could it be said that objection as to jurisdiction might have been waived in its not being raised by petitioner before Appellate Court and muchless could it be held that in cases of inherent lack of jurisdiction, a failure to raise objection on point could result in conferment of jurisdiction by submission or acquiescence‑Petitioner, however, contesting appeal below on merits in Court of District Judge and sitting on fence to take chance of a favourable decision ‑Such conduct debars a party from seeking relief through discretionary jurisdiction of High Court‑Interference in exercise of discretionary constitutional jurisdiction, hold, could not be claimed as a matter of either right or mere course‑Petitioner in his statement recorded below stating that he was not unaware of suit filed against him for dissolution of marriage but he did not put in appearance to contest it which resulted in passing of ex parte decree and about ten months thereafter petitioner moving an application for setting it aside Respondent, meanwhile, contracted a second marriage and giving birth to some children out of her second marriage‑Parties having been in litigation for several years, gulf between them having enlarged with passage of time and much water having flown under the bridge, just and proper order, held, had come to be passed between parties with ex parte decree for dissolution of marriage being maintained as a result of order of District Judge ‑ Exercise of discretionary jurisdiction in facts and circumstances of case declined.

Shah Muhammad v. Additional District Judge, Sheikhupura and another 1979 C L C 364 and Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner (Pakistan) Lahore and 2 others P L D 1964 S C 829 ref.

Haji Abdul Sattar v. Additional District Judge, 'Rawalpindi and others 1984 S C M R 925 distinguished.

(b) Jurisdiction‑

‑‑ Failure to raise objection of lack of jurisdiction before a Court not having jurisdiction to decide a matter, held, would not confer jurisdiction on such Court‑No conferment of jurisdiction can result by submission or acquiescence.

(c) Constitution of Pakistan (1973)‑

‑‑Art. 199‑Constitutional jurisdiction, exercise of‑Scope‑Conside rations‑Principle of grant of relief in writ stated‑Order impugned in writ petition passed by a Court having no jurisdiction‑Petitioner raising no objection as regards lack of jurisdiction before that Court‑Such conduct of petitioner will disentitle him from having relief by way of writ petition‑Principle upon which writ is refused is not that jurisdiction has been conferred on the Tribunal/Court concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction, the petitioner had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess.

(d) Constitution of Pakistan (1973)‑

‑‑ Art. 199‑Writ jurisdiction, exercise of‑Scope‑Nature of relief ‑Jurisdiction discretionary in nature ‑ Exercise of constitutional jurisdiction cannot be claimed as a matter of right or mere course but exercise is discretionary and dependant upon facts and circumstances of a case.

Ch. Masood Ahmad Bajwa for Petitioner.

A suit for dissolution of marriage filed by Mst. Hanifan respondent No. 1 resulted in the passing of an ex parte decree against the petitioner on 24‑2‑1982. He put in an application on 21‑12‑1982 for the ex parte decree being set aside on the ground that he had neither been served with a notice for appearance in the suit nor had he refused to accept its service. He also alleged that he had gone to Karachi to earn his livelihood and that he had filed a suit for restitution of conjugal rights in .the Court of Family Judge, Chichawatni wherein Mst. ‑Hanifan had filed a written statement disclosing that she had secured a decree for dissolution of marriage on 24‑2‑1982 and hence he came to know about this decree on 18‑12‑1982, whereafter he came to Sadiqabad and had filed the petition after securing copy. This petition was contested by the lady by reiterating that he had refused the service of summons. It was set down to be triad on the following two issues :‑

"(1) Whether the application is time‑barred O. P. R.

(2) Whether there are sufficient grounds to set aside ex parte decree dated 24‑2‑1982 O. P. A.

In the evidence, apart from the parties themselves entering the witness‑box in support of their contentions, one witness Muhammad Ishaq was examin ed by the applicant and two witnesses Tufail Muhammad and Muhammad Munir were examined by the respondent and in addition to exhibiting the report of the process‑server as Exh. R. 1, a copy of the plaint in the petitioner's suit .for restitution of conjugal rights at Chicha Watni was filed as Exh. A. 1 and ‑that of the written statement filed therein by Mst. Hanifan was produced as Exh. A. 2. In his own statement of the petitioner recorded as P. W. 1, be did not even allege that his counsel or anybody else may have informed him about the passing of the ex parte decree against him and, without even asserting that he had gone away to Karachi, he went on to state also that he filed his suit for restitution of conjugal rights upon coming to know about the suit for dissolution of marriage. He also stated that the written statement in his own suit was filed by Mst. Hanifan on the fourth date. A copy of the written statement showed that it had been filed in the said Court on I5‑I 1‑1982. Learned trial Judge accepted the averments made in the application, without any proof led in their support, and .concluded that he had not been served in the suit" for dissolution of marriage, the ex parte decree passed wherein against him had come to his knowledge only on 18‑12‑1982. Thereupon, he held the application dated 21‑12‑1982 to be within time and holding that he had not either been served nor had he refused to accept service, proceeded to set aside the decree by his order dated 8‑7‑1985.

2. Mst. Hanifan filed an appeal there against on 24‑7‑1985 in the Court of District Judge, Rahim Yar Khan which was accepted by him by the order dated 10‑3‑1986, impugned herein, on the ground that the application for setting aside the ex parte decree was time-barred from the date of knowledge of he petitioner which had to be fixed as 15‑11‑1982 because he had not either produced a copy of the interim order of that date to show that he was not himself present in the Court of Chichawatni on that date nor examined either the concerned counsel or any one else to establish any other date with regard to his knowledge of the ex parte decree' and his assertions made' in the application with regard to the know ledge of the ex parse decree and his own absence out of station had also not been either proved by any evidence or even sworn to by the petitioner in his deposition. Consequently, he accepted the appeal to set aside the order of the trial Court.

3. The order passed by the ‑learned District Judge is assailed in this writ petition on the ground that an order to set aside an ex pane decree is not amenable to appeal under section 14 of the Punjab Family Courts Act, 1964 and reliance is placed on Shah Muhammad v. Additional District Judge, Sheikhupura, and another (1), in support of this contention to submit also that learned District Judge did not have the jurisdiction to entertain or accept the appeal of the respondent. It is conceded that the petitioner had not raised any objection before the learned District Judge with regard either to the competence of the appeal or his own jurisdiction to hear the same and it is maintained that such objection relating to the jurisdiction of the Court below, is open to be taken at any stage 'of the proceedings and reliance is placed on Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others (2), to submit that such an objection is not shut out from being taken in a writ petition. There is no cavil with. the proposition that an order for setting aside ex parse‑decree is not appealable under section 14 of the Act nor can it be said that the objection. as to jurisdiction may have been waived in its not being raised by the petitioner before the concerned forum and muchless can it be held that in cases of inherent lack of jurisdiction, a failure to raise the objection on the point can result in conferment of jurisdiction by submission or acquies cence but the question really is, as to whether the petitioner is entitled to now turn round, after having contested the proceedings and lost them on merits, to raise such an objection in this constitutional petition relating to the discretionary jurisdiction of the Court. There is no doubt that in thus having contested the appeal below on merits, in the Court of the learned District Judge, the petitioner sat on a fence to take the chance of a favourable decision. As a rule regulating the exercise of discretionary jurisdiction of the High Court, such conduct .has been held to debar the party from seeking relief. In Ghulam Mohyud Din v. Chief Settlement Commissioner (Pakistan) Lahore and 2 others (3), at page 839 of the report, there appear the following observations :‑

"Again, one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. Vide The King v. Williams and others Ex parte Philips L R 1914 1 K B 608.

(1) 1979 C L C 364 (2) 1984 S C M R 925

(3) P L D 1964 S C 8Z9

In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from exercising his power of review. Notwithstanding this, he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was unaware that the filing of the second revision petition debarred the Settlement Commissioner in law from review ing his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as be had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."

The authority relied upon by the learned counsel proceeds upon different facts and the said observation has been made in another context but even therein, their Lordships of the Supreme Court have only observed :‑

" . there is no absolute rule that objection to jurisdiction of the Rent Controller, if not taken before him or the Appellate Authority, can in no case be taken in the writ jurisdiction."

Therein, a departure cannot be considered to have been made from the rule laid down in Ghulam Mohyud Din's case (ibid).

4. Be the above, as it may, interference in exercise of constitutional jurisdiction cannot be claimed as a matter of either right or mere course Its exercise is discretionary. It emerges from the statement of the petitioner himself recorded below as P. W. 1 that he was not unaware of the suit filed against him for dissolution of marriage and he did not put in appear ance to contest it which resulted in the passing of an ex parte decree for dissolution of marriage on 24‑2‑1982 and it was only on 21‑12‑1982 that he moved the application for its being set aside. In the meanwhile, Mst. Hanifan had contracted a second marriage and has, by now, even given birth to some children out of her second marriage. So, was disclosed before this Court on 31‑5‑1986 when she was sent for by my learned brother Ch. Muhammad Sharif, J., for being heard at motion stage. Parties have, by now, been in litigation for several years and gulf between them has only enlarged with the passage of time. Much water has by now flown under the bridge and it appears that in this case a just and proper order has come to be passed between the parties with the ex parte decree for dissolution of marriage being maintained as a result of the order of learned District Judge and, to a large extent the petitioner has himself contributed in its passing. I am not persuaded to exercise my discretionary jurisdiction in the facts and circumstances of this case.

5. As a result, this writ petition is dismissed in limine.

S, Q. Petition dismissed

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