IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constitutional Petition No. S- 1431 of 2011.

Present:

                                                            Mr. Justice Abdul Maalik Gaddi, J.

             

Shakeel Ahmed Buriro.                                                       ………….Petitioner.

 

Versus

Mst. Kausar Parveen

& others.                                                                                .…..….Respondents.

           

            Mrs. Meena Devi, Advocate for the petitioner.

            Mr. Faiz Mohammad Larik, Advocate for respondent No.1.

 

Date of hearing:                    13.09.2013.

Date of Judgment:                20.09.2013.

 

J U D G M E N T

 

Abdul Maalik Gaddi, J:     This writ petition is directed against the judgment and decree dated 06.05.2011, passed by learned District Judge, Jacobabad, whereby an application filed by the petitioner for setting-aside the ex-parte judgment and decree dated 09.10.2010, was dismissed. 

 

2.         The facts in brief necessary for the disposal of this petition are that a suit for maintenance was filed against the petitioner by his wife, the respondent No.1 with the plea that she was married with the petitioner in the year 2007, at Jacobabad, under the registered Nikahnama. The respondent No.1 was given dowry articles worth Rs.4 to 5 lacs and Haq Mahar was fixed as two tola gold in shape of locket. The respondent No.1 has stated in the plaint that after marriage she remained with the petitioner as his wife in his house for about eight months, where attitude of the petitioner and his family members was very cruel and they used to beat the respondent No.1 and made her life miserable. On 03.10.2008, she went to the house of her parents with permission of the petitioner, and on 17.10.2008, the petitioner informed through telephone to her father that he had contracted second marriage and her parents tried best for settlement with petitioner upto the Sardar of the petitioner, but he did not turn up. According to her, she is residing in the house of her father and the petitioner did not provide maintenance to her since then, therefore, she claimed her maintenance allowance at the rate of Rs.10,000/- w.e.f. 03.10.2008, upto date at the same rate.

 

3.         The suit of the respondent No.1 was decreed ex-parte, vide judgment and decree dated 09.10.2010. As per record on 05.3.2011, the petitioner had filed an application for setting-aside the ex-parte judgment and decree but that application was dismissed by the learned trial Court vide order dated 05.3.2011. Thereafter, the petitioner went in appeal before learned District Judge, Jacobabad, where the order passed by learned trial Court i.e. 2nd Civil and Family Judge, Jacobabad, was maintained, hence this petition.

 

4.         It is pertinent to mention here that the petitioner has wrongly made Additional District Judge and Senior Civil Judge as respondents No.2 and 3, although the ex-parte judgment and decree were passed by learned 2nd Civil and Family Judge, Jacobabad, and those were maintained by learned District Judge, Jacobabad. Even otherwise, they are formal parties and no relief has been sought against them, and main contesting party is the respondent No.1.

 

5.         I have heard learned counsel for the petitioner, as well as learned Advocate for respondent No.1.

 

6.         It is mainly contended by the learned counsel for the petitioner that the impugned judgment passed by two Courts below have been passed in hot haste manner without considering the fact that the petitioner was not duly served before passing the ex-parte judgment and decree by the learned Family Court at Jacobabad. According to the learned counsel for petitioner the petitioner on the relevant dates was in Quetta and he had no knowledge about the pendency of the case and the publication made in daily “Kawish”, dated 13th August 2010, having limited circulation, therefore, the impugned judgment and decree passed by Family Court, as well as appellate Court are illegal and liable to be set aside. It is further argued by learned counsel that, learned trial Court as well as appellate Court have exercised their jurisdiction illegally with material irregularities and therefore, the petitioner may be given an opportunity to contest the case on merit. In support of her arguments learned counsel relied upon case law reported in 2006 YLR 549 Lahore.

 

7.         As against this, learned Advocate for the respondent No.1, has supported the impugned judgment and decree passed by the learned trial Court as well as by appellate Court by arguing that the petitioner was given sufficient opportunities to contest the case but he was the petitioner who intentionally and deliberately has not contested the matter. According to him, the suit for maintenance was admitted on 16.3.2010 before Family Court, Jacobabad, thereafter time and again summons/notices were sent to the petitioner/ defendant and according to the reports of the Bailiff available in the file of the trial Court that on 28.5.2010 and 08.6.2010, the Bailiff went to serve the summons/notices upon the petitioner and according to Bailiff, the petitioner himself refused to accept the summons/notices. According to learned counsel, the petitioner was also got served through publication of notice in daily “Kawish” dated 13th August, 2010, but despite all these efforts the petitioner did not contest the case, therefore, he was of the view that the petitioner was in full knowledge about pendency of the suit but he kept himself away from the case, therefore, he was of the view that no illegality or irregularity is made out in the impugned judgments and decrees of two Courts below.

 

8.         I have given my anxious though to the contentions raised at the bar and gone through the material available before me including the Record & Proceedings of the case.

 

9.         After hearing the learned Advocate for the parties, I myself with the assistance of the counsel have gone through the case file of Family suit No.07/2010, re; Mst. Kausar Parveen v. Shakeel Ahmed, which reflect that after admission of the suit the summons/ notices were sent to the petitioner through Bailiff time and again, which are on record of the trial Court. On asking why the petitioner did not contest the suit against him before the trial Court, it was stated by the learned counsel for petitioner that he was unaware of the pendency of the suit against him and notice of the suit published in daily newspaper “Kawish”, which has having no circulation in Quetta city, where the petitioner was residing due to flood. The explanation offered on behalf of the petitioner appears to be contrary to record, which reveals that the petitioner at-least twice refused to acknowledge the notices/summons of the trial Court when it was going to be served upon him in person by the Bailiff of the Court, firstly on 28.5.2010, when the case was fixed on 29.5.2010, and secondly on 08.06.2010, when the matter was fixed before the trial Court on 12.06.2010. These two reports of the Bailiff available in the R & Ps: of the Family Court cannot be ignored. The refusal to acknowledge summons/notices of the Court in the suit on the part of petitioner reflects that it was petitioner who instead contesting the suit against him preferred to remain absent; now he has to face the consequences.  The law would help vigilant and not indolent. My, this view is supported by the case law reported in 1999 SCMR 1326, and 2009 CLC 420. I may also mention here that, he, who seeks equity, must do equity. Equity moves in the aid of law and not to defeat the law. Equitable relief could not be granted to the person, foundation of whose claim is based upon illegality. Moreover, the applicant has not come to this Court with clean hands, as he suppressed that he was served twice through Bailiff in the trial Court, therefore, on this ground also he is not entitled for any relief through this petition. Herein this case, as observed above the claim of the applicant is based upon false plea that he was not served with the summons/notices, which is not supported from the record. Be that as it may, admittedly the respondent No.1 is the wife of the petitioner and she filed the case for maintenance before the trial Court and under the Islamic Law the husband is duty bound to maintain his wife, which is admittedly neglected by the petitioner. 

 

10.       In view of the above circumstances, it is observed that the impugned judgment and decree passed by learned trial Court as well as appellate Court having not suffering from any legal error, would not be open to interference by this Court in exercise of its constitutional jurisdiction. Besides, this Court in exercise of its constitutional jurisdiction could not undertake a detailed factual inquiry, therefore, in view of what has been observed above, I am of the opinion that this petition has no merits, which is hereby dismissed with no order as to cost.

 

11.       The, case law cited by the learned counsel for the petitioner has been perused and considered, but did not find applicable to the facts of the present case, as in the case in hand besides service of summons/notices by publication in newspaper, the petitioner had twicely refused to accept the notice sent to him through Bailiff; therefore, the said case law is not helpful for the petitioner.

 

Judge