Judgment  Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

Constitutional Petition No. S – 808 of 2017

 

Petitioner                   :  Umer Daraz through

   Ms. Uzma Rafique Advocate.

 

Respondent No.1    :  Mst. Hina Mariam, through

   Mr. Barner Newton Barni Advocate.

 

            Date of hearing        :  09.10.2018.

 

 

J U D G M E N T

 

NADEEM AKHTAR, J. – This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the ex-parte judgment and decree dated 16.03.2017 passed against the petitioner by learned 1st Civil and Family Judge Karachi Central in Family Suit No.94 of 2017, whereby the said Suit for dissolution of marriage filed against him by respondent No.1 was decreed with no order as to cost.

 

2.         In the above Suit filed by the respondent for dissolution of her marriage with the petitioner, summons were issued through bailiff, registered post A/D and courier service. In view of the report submitted by the bailiff, the respondent / plaintiff was directed by the learned trial Court on 03.02.2017 to furnish a fresh address of the petitioner / defendant. However, instead of furnishing the fresh address of the petitioner as directed by the learned trial Court, an application for substituted service by way of publication in newspaper was filed by the respondent which was allowed on 13.02.2017. In pursuance of the above order, summons were published in newspaper viz. Urdu daily ‘Express’ on 22.02.2017 whereafter service upon the petitioner was held good by the learned trial Court vide order dated 23.02.2017 and the matter was adjourned to 11.03.2017 for filing of his written statement. As the petitioner did not file his written statement, he was debarred on 11.03.2017 from filing the same and the matter was adjourned to 16.03.2017 for the respondent’s ex-parte proof. Through the impugned judgment and decree passed on 16.03.2017, the Suit was decreed against the petitioner.

 

3.         The R&P of the Suit shows that the bailiff had submitted his report dated 23.01.2017 before the learned trial Court wherein it was specifically stated by him that the petitioner was not available at the address of the flat disclosed in the plaint and the lady who was found there informed him that she had purchased the said flat and was residing there since last one year. Record further shows that the courier service had also reported that the consignee / petitioner was not available at the given address. It may be noted that the acknowledgment due (A/D) receipt is not available in the R&P which means that the A/D receipt was never received by the learned trial Court. In view of the above, learned trial Court had rightly directed the respondent to furnish a fresh address of the petitioner, but instead of complying with the said order, an application for substituted service by way of publication in newspaper was filed by the respondent. In my humble opinion, this application should not have been granted by the learned trial Court as the respondent had failed to comply with the Court’s direction regarding fresh address of the petitioner. Moreover, no purpose would have been achieved by publication of summons in newspaper with old and incorrect address of the petitioner. Once the fact came on record through the reports submitted by the bailiff and courier service that the petitioner was not available or residing at the address disclosed in the plaint, the learned trial Court was duty-bound to ensure that before proceeding further in the matter the petitioner / defendant is served at his correct and latest address in accordance with law. However, it is clear from the record that such efforts were not made either by the respondent or by the learned trial Court.

 

4.         As noted above, service upon the petitioner was held good by the learned trial Court on 23.02.2017 when the matter was adjourned to 11.03.2017 for filing of written statement by the petitioner, and since he did not file his written statement, he was debarred on 11.03.2017 from filing the same. The above dates show that time of only sixteen (16) days was granted to the petitioner to file his written statement ; whereas under Rule 1 of Order VIII CPC, the defendant is entitled to file his written statement within thirty (30) days. Thus, the petitioner was debarred by the learned trial Court from filing written statement before expiration of the statutory period of thirty (30) days provided by law.

 

5.         In view of the above discussion, the impugned judgment and decree are not sustainable either in law or on facts. Accordingly, the same are hereby set aside. The petitioner / defendant may file his written statement in the Suit within thirty (30) days and if written statement is filed by him within the stipulated period, the Suit shall be decided by the learned trial Court on merits strictly in accordance with law. The petition is allowed in the above terms with no order as to costs.

 

J U D G E