ORDER SHEET
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
C. P No. S- 791 of
2018
For hearing
of case (priority)
1.
For orders on office objection at flag ‘A’
2.
For hearing of main case
3.
For hearing of CMA No.9535/2018 (S/A)
18.02.2019
Mr. Humayoun
Shaikh Advocate for the Petitioner
Mr.Muhammad
Naeem Mughal Advocate for respondent No.1
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Irshad Ali Shah, J;- The facts
in brief necessary for disposal of instant Constitutional petition are that the
petitioner filed an application U/s 9(6) of Family Courts Act, 1964 before
learned Family Judge Sukkur, for setting aside of Ex-parte judgment and decree
dated 13.10.2016. It was dismissed by learned Family Judge Sukkur vide order
dated 17.10.2018, with the following observation;
“Heard. Instant application is not maintainable as R and P of
the Suit has already been sent to learned Family Judge
Hyderabad through proper channel for satisfaction of the decree.”
2. The
petitioner being aggrieved of dismissal of his application u/s 9(6) of Family
Courts Act, 1964, filed a Family Appeal, it was also dismissed by learned by
learned Additional District Judge (Hudood) Sukkur vide judgment dated 27.10.2018 with the following
observation;
“I dismiss the family appeal being devoid of
legal substance and merit in limine with cost of
Rs.10,000/- which causes upholding of the impugned
order dated 17.10.2018 but I express my legal anxiety that the learned Family
Judge/Civil Judge at Sukkur ought to have decided an application u/s 9(6)
Family Court Act, 1964 with reason after appreciating of material annexed with
it as per law.”
3. The applicant being
aggrieved of his dismissal of his Family Appeal has filed the instant
Constitutional petition before this Court.
4. It is contended by the
learned counsel for the petitioner that the petitioner has never been served
with the notice in Family Suit, he has been condemned unheard and his
application for setting aside of Exparte judgment and
decree has been dismissed by learned trial and appellate Court in summarily
manner without lawful justification. By contending so, he sought for direction
against learned trial Court to hear and decide the application of the petitioner
for setting aside of the Exparte judgment and decree,
in accordance with law after providing chance of hearing to all the concerned.
5. Learned
counsel for the private respondent has sought for dismissal of the instant
petition by contending that the petitioner is intending to delay the
satisfaction of decree against him.
6. I
have considered the above arguments and perused the record.
7. It
is the claim of the petitioner that he has never been served with the notice in
Family Suit, which has been decreed against him Exparte.
The petitioner by way of filing an application u/s 9(6) of Family Courts Act,
1964, sought for setting aside of such Exparte
judgment and decree. It was dismissed by learned Family Judge at Sukkur simply
for the reason that the very decree for its satisfaction has already been sent
to learned Family Judge at Hyderabad. No merits of the
case were discussed. Such aspect of the matter has also been considered by
learned appellate Court yet appeal has been dismissed with cost in summarily
manner. None indeed is to be condemned unheard, which is against the spirit of
natural justice and mandate contained by Article 10 of the Constitution of
Islamic Republic of Pakistan 1973, which prescribe right of fair trial to every
person.
8. In view of the facts and
reasons discussed above, the orders passed by learned Family Judge and
appellate Courts could not be sustained, those are set aside. Consequently,
learned Family Judge at Sukkur is directed to decide the application of the
petitioner which he has moved u/s 9(6) of Family Courts Act, 1964 afresh on merits, after providing chance of hearing
to all the concerned.
9. The
instant constitutional petition is disposed of accordingly with listed
application. No order as to costs.
Judge
ARBROHI