Order Sheet

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

Constitutional Petition No. S – 439 of 2019

 

Date

                                Order with signature of Judge

 

Fresh Case :

1. For orders on CMA No.1578/2019 (U/A) :

2. For orders on CMA No.1579/2019 (E/A) :

3. For orders on CMA No.1580/2019 (Stay) :

4. For hearing of Main Case :

 

12.03.2019 :      Mr. Jahangir Ali Khan, advocate for the petitioner.

…………

 

            Family Suit No.96/2016 filed by respondent No.3 and her minor son against the petitioner for maintenance and recovery of gift items was decreed by the learned Family Court vide judgment and decree dated 09.03.2017 against which no appeal was filed by the petitioner and as such the same attained finality. Family Execution Application No.07/2018 filed by respondent No.3 was allowed on 03.08.2018 by the learned executing Court. Thereafter, the petitioner filed an application under Section 12(2) CPC for setting aside the above judgment and decree passed by the Family Court on the ground that the same were obtained by respondent No.3 through fraud and misrepresentation. The said application was dismissed by the learned Family Court vide order dated 20.10.2018 against which the petitioner filed Family Appeal No.51/2018 which was also dismissed by the learned appellate Court vide order dated 09.02.2019 impugned in the present petition.

 

            Perusal of the judgment and the order of dismissal of application under Section 12(2) CPC passed by the learned Family Court as well as the impugned order passed by the learned appellate Court shows that it was observed therein that despite repeated opportunities the petitioner had failed to adduce evidence in rebuttal to the evidence led by respondent No.3 / plaintiff and he also did not file any application before the Family Court for reopening his side. In his application under Section 12(2) CPC, vague and general allegations were made by the petitioner that the dowry and gift articles had already been received by respondent No.3 through her brother. However, no evidence in support of this assertion was led by him although he had the full opportunity to defeat the claim made by respondent No.3. In such circumstances, he was not justified in alleging that the judgment and decree were obtained by respondent No.3 through fraud and misrepresentation. Moreover, no appeal was filed by the petitioner to challenge the judgment and decree.

 

            In view of the above, the application filed by the petitioner under Section 12(2) CPC was rightly dismissed by the learned Family Court and the order of its dismissal was rightly maintained by the learned appellate Court. Both the above orders do not require any interference by this Court. Accordingly, this petition and listed applications are dismissed in limine with no order as to costs.

 

 

     J U D G E