IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

CP No. S- 22 of 2022          :           Syed Naveed Shah vs.

Mst. Rukhsana Bibi & others

 

For the Petitioner                 :           Mr. Abdul Rehman A. Bhutto, Advocate

                                                           

Date of hearing                    :           14.02.2022.

 

Date of announcement      :           14.02.2022.

 

ORDER

 

Agha Faisal, J.         A family suit was decreed exparte by the Court of learned Civil and Family Judge-II, Kashmore, vide judgment dated 30.08.2021. The operative findings are reproduced herein below:

 

                “I have heard the learned counsel for plaintiff and perused the material available on record as well as the relevant law. Infact apparently there is nothing in rebuttal on such accounts of events, yet; it is settled principle of law that the plaintiff is required to establish her claim of recovery of maintenance and to prove her case independently. The contents of affidavits in the evidence of the plaintiff and her witness are as per to verbatim of her claim mentioned in plaint, sufficient evidence is available while her version has gone un-challenged and un-rebutted. She mainly established her case for maintenance allowance for herself so also for her minor. The plaintiff has also produced original Nikahnama alongwith plaint, which reveals Nikah was registered with Nikah Registrar and the marriage/ Nikah between the souse is still intact, it is admitted position that the plaintiff is wife of the defendant while minors are his sons.

 

                Furthermore; the instant family suit is purely for issuance of maintenanceallowance for a wife and children/ minors against a father and husband, for that it has been settled various law citations that the father is under legal obligations to providemaintenance to his wife and children/ minors. Needless to say that it is duty of the Court to keep in mind the source of income, financial position of the defendant including the facts and circumstances of the case while fixing or denying the maintenance allowance. Yet it is obligatory duty of father to maintain his wife and child son till attaining the age of majority while his daughter till she gets married. Reliance is placed in case of Faiz Muhammad v. Mst. Soni and 2 others, reported in 2020 CLC Sindh (Hyderabad Bench) 148, in which the Hon’ble Court of Sindh has observed as under:

 

                “Suit for recovery of maintenance allowance for wife and children. Husband is under obligation to maintain his wife and father is obliged to provide maintenance to his son till he attains majority and to his daughter till she gets married and maintenance includes food, shelter, clothing and all other this things which are necessary for the life.”

 

                In view of the above discussed facts and circumstances and factual position of the suit, the plaintiff has proved her case, thus; she is entitled for receiving maintenance allowance for herself so also for her minor sons Ghulam Abbas Shah aged about 9 years, Atif Shah and Hassnain Shah age about 8 years, hence; the suit of the plaintiff is decreed as ex-parte as prayed, with no order as to costs. Let such decree be prepared according to the law.”

 

2.            The appeal against the aforementioned judgment was also dismissed by the Court of learned District Judge, Kashmore @ Kandhkot vide Order dated 10.01.2022. The operative findings are reproduced herein below:

 

“I have heard the arguments of learned counsel for appellant/ defendant, learned counsel for respondent/ plaintiff and minutely thrashed the entire material placed before me.

 

Keeping in view the arguments, advanced by the parties and from the perusal of record, it transpires that respondents Mst. Rukhsana Bibi filed family suit for maintenance before learned 2nd Civil/ Family Judge Kashmore for grant of maintenance of herself as well as three children namely Ghulam Abbas Shah, Atif Ali and Hassnain Shah. The family suit was proceeded exparte and finally suit was exparte decreed vide judgment and decree dated 30.08.2021. Thereafter, appellant/ defendant Naveed Shah filed application under Section 9 (6) of Family Court 1964 wherein objections were filed by the plaintiff/ respondent and finally the learned Family Court dismissed the application under Section 9 (6) of Family Court 1964 vide order dated 13.11.2021 and same order is assailed by the appellant/ defendant by filing instant appeal.

 

It is contended by learned Advocate for appellant that on 30.08.2021, the appellant/ defendant was seriously ill in Malaria and Diapheria, hence could not appear before the trial Court and due to absence the exparte decree was passed. In this context, I have perused the judgment dated 30.08.2021 passed by learned trial Court, it reveals that notices were served upon the defendant/ appellant Naveed Shah and he had appeared before the trial Court on the date of hearing i.e. 30.06.2021 and submitted application for adjournment, which was granted and matter was adjourned to 04.08.2021 but on said date defendant Naveed Shah remained absent without intimation and matter was adjourned to 16.08.2021. The judgment dated 30.08.2021 further reveals that on 16.8.2021 defendant Naveed Shah again remained absent without intimation and in the interest of justice matter was adjourned to 25.8.2021 and on said date as per routine defendant Naveed Shah remained absent without intimation and resultantly he was made exparte and de-barred from filing of written statement and plaintiff/ respondent was allowed to file affidavit in exparte evidence and finally the suit of the plaintiff was exparte decree on 30.8.2021.

 

As per contention of learned counsel for the appellant that on 30.8.2021 the appellant was seriously ill therefore, he could not appear before the Family Court. But learned Advocate for appellant has not furnished any record or arguments that for what reason appellant remained absent after giving his first appearance before the trial Court on 30.6.021. According to Section 9 (6) of West Pakistan Family Court Act 1964, in any case in which decree is passed exparte against defendant under this Act, he may apply and satisfy the Family Court that he was not duly served or prevented by any sufficient cause appearing when the suit was heard or called for hearing, the Family Court shall after service of notice on the plaintiff and on such terms as to cost as it deems fit make an order for set aside the decree against him. It is also settled law that the application for setting aside the decree can be made within reasonable time of the passing exparte decree by showing reasonable ground of his non-appearance before the Family Court, but in instant matter the appellant/ defendant has not produced any medical certificate that on 30.8.2021, the appellant was seriously ill. Even the appellant/ defendant has not furnished reasonable ground or cause that on 04.8.2021, 16.8.2021 and on 25.8.2021, he was remained absent without intimation before the Family Court. Nor the learned counsel for the appellant/ defendant during course of arguments has furnished any reasonable cause of non appearance of appellant / defendant before the Family Court on 04.08.2021, 16.8.2021 and on 25.8.2021. From the above circumstances, it is established that the absence of appellant/ defendant before the Family Court was intentional.

               

Furthermore, the appellant/ defendant annexed photocopy of Talaqnama dated 17.5.2012 with his appeal and contended that the appellant is not legally bound to pay the maintenance to Mst. Rukhsana Bibi as firstly she was divorced by him verbally on 26.4.2012, written Talaqnama was given by appellant. In this context, the learned counsel for respondent/ plaintiff has contended that the plea of divorce was not agitated by the appellant/ defendant in his application under section 9 (6) of Family Court Act, nor this plea was raised during the course of arguments. In this connection, I have perused the copy of application under Section 9 (6) of Family Court, Act, annexed with instant appeal which indicates that no any plea of the divorce was taken by the appellant before trial Court. The impugned order dated 13.11.2021 also indicates that no such plea of the divorce was agitated by the appellant/ defendant. From the above discussion, I am of the considered opinion that the arguments / contentions of learned counsel for the plaintiff/ respondent carries weight that plea of divorce is after thought and same was agitated mala fidely at the appellate stage for saving himself for payment of past and future maintenance of plaintiff/ respondent.

 

For what has been discussed herein above, it is crystal clear that impugned order passed by learned trial Court does not require interference of this Court, hence instant family appeal merits no consideration and impugned order dated 13.11.2021, passed by learned trial Court is maintained, with the result instant family appeal filed by appellant/ defendant is hereby dismissed. Parties shall bear their own costs.”

 

3.            Per learned counsel the learned trial Court acted otherwise than in accordance with law while decreeing the suit exparte and the learned appellate Court also erred in not appreciating the same.

 

4.            Heard and perused. There is no cavil to the authority of the learned trial court to determine a suit ex parte. There is also no argument before this Court that the learned trial court was not seized of the pertinent circumstances to exercise its power in such regard. Admittedly, the petitioner had remained truant from the proceedings before the trial court, however, it is apparent that the trial court had kept all the lawful considerations paramount while determining the lis there before. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court.

 

5.            Article 199 of the Constitution contemplates the discretionary[1] writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter admittedly there existed an adequate remedy, however, the same was duly availed / exhausted and no case has been set forth before us for invocation of the writ jurisdiction.

 

6.            The ambit of constitutional petition is not that of yet another forum of appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.

 

7.            In view hereof, we are constrained to observe that no case has been set forth for the invocation of the discretionary writ jurisdiction of this Court, hence, this petition, along with pending application, is hereby dismissed.

 

                                                                    JUDGE

                                                         

 


[1] Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.

[2]Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.