High court set aside exparte decree just because the decree was not sent to defendant as required by family court act section 9 (7).

CJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI.

JUDICIAL DEPARTMENT

W.P.No.2998 of 2018

FAZAL HUSSAIN

Versus.

RAZIA BEGUM, ETC.

JUDGMENT.

Mirza Viqas Rauf, J. This constitutional petition emanates

from a suit for recovery of maintenance instituted by respondent No.1

(hereinafter referred to as “respondent”). Suit was decreed ex-parte vide

judgment dated 17th March, 2016. The petitioner moved an application for

setting aside ex-parte decree but it was dismissed vide order dated 3rd

February, 2018, being barred by time. Feeling dissatisfied, the petitioner

though filed an appeal before the learned Additional District Judge,

Chakwal but remained unsuccessful as the appeal was dismissed through

judgment dated 30th July, 2018.

Learned counsel for the petitioner contended that the petitioner

was never served with the process of the Court. He added that on attaining

the knowledge about the ex-parte decree, the petitioner immediately moved

an application seeking setting aside of the same but it was dismissed being

barred by time. Learned counsel submitted that the petitioner feeling

aggrieved though preferred an appeal but appeal was also dismissed in a

mechanical manner. It is emphatically contended that both the Courts

while dismissing the application have erred in law.

W.P.No.2998 of 2018

Conversely, learned counsel for the “respondent” defended the

impugned judgment as well as order and submitted that the petitioner

remained indolent and intentionally avoided his appearance. Learned

counsel added that the application for setting aside ex-parte decree was

rightly dismissed.

Heard. Record perused.

Suit for recovery of maintenance was instituted by the

“respondent” before the learned Judge Family Court, Chakwal, who

proceeded to issue process against the petitioner. On account of nonappearance, the petitioner was initially proceeded against ex-pare vide

order dated 24th November, 2015 and finally suit was decreed as such by

way of judgment dated 17th March, 2016. It is claim of the petitioner that

he was not aware about the passing of the ex-parte decree and on attaining

the knowledge, he immediately moved an application, which was well

within time but it is dismissed being barred by time in an illegal and

unlawful manner.

For the expeditious settlement and disposal of disputes relating

to the marriage and family affairs and for matters connected therewith,

Family Courts were established under the Family Courts (Act XXXV of

1964) (hereinafter referred to as “Act, 1964”). Section 7 of the “Act,

1964” prescribes the manner of institution of suits before the Family Court

whereas section 8 deals with the procedure of intimation to defendant on

presentation of plaint before the Family Court. Section 9 deals with the

written statement and sub-section 5 of section 9 postulates that if the

defendant fails to appear on the date fixed by the Family Court for his

appearance, and it is proved that summons or notice was duly served on

the defendant, the Family Court may proceed ex-parte. Since the suit was

decreed ex-parte, so sub-sections 6 and 7 of section 9 of the “Act, 1964”

would be quite relevant for the resolution of matter in issue, which are

reproduced below for reference and convenience: -

W.P.No.2998 of 2018

9. (1) Written statement.– ……

(2) … …

(3) … …

(4) … …

(5) … …

(6) In any case in which a decree is passed ex parte against a

defendant under this Act, he may apply within thirty days of the service of

notice under sub-section (7) of the passing of the decree to the Family

Court by which the decree was passed for an order to set it aside, and if he

satisfies the Family Court that he was not duly served, or that he was

prevented by any sufficient cause from 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 costs as it deems fit, make an order for

setting aside the decree as against him, and shall appoint a day for

proceeding with the suit; provided that where the decree is of such a

nature that it cannot be set aside as against such defendant only, it may be

set aside against all or any of the other defendants also.

(7) The notice of passing of the ex-parte decree referred to in subsection (6) shall be sent to the defendant by the Family Court together

with a certified copy of the decree within three days of the passing of the

decree, through process server or by registered post, acknowledgement

due, or through courier service or any other mode or manner as it may

deem fit.

(8) … …

(underlining supplied for emphasis)

It is manifestly clear from the bare perusal of above referred

provisions of law that in case a suit is decreed ex-parte, a defendant may

apply within 30 days of the service of notice under sub-section 7 of section

9 of the “Act, 1964” of the passing of the decree to the Family Court by

which the decree was passed for an order to set it aside. Sub-section 7 of

section 9 of the “Act, 1964” commands the Family Court to send a notice

of passing of ex-parte decree to the defendant together with a certified

copy of the decree within three days of the passing of such decree through

process server or by registered post, acknowledgement due or through

courier service or any other mode or manner as it may deem fit.

Admittedly, due compliance to sub-section 7 was not made at all by the

Family Court.

So far contention of learned counsel for the “respondent” that

this ground has not been taken in the petition, suffice to observe that

W.P.No.2998 of 2018

sending of notice of passing of ex-parte decree in the manner provided in

sub-section 7 of section 9 of the “Act, 1964” is the mandate of law. Nobody

can be penalized on account of fault of the Court. Reference to this effect

can be made to Syed AGHA HUSAIN SHAH and another v. Mst. DEENA

BIBI and others (2017 CLC Note 69).

It is an oft repeated principle that when law provides a specific

manner for performing an act, then it should be performed in such manner

but in no other way. Needless to mention that limitation of 30 days for

filing an application for setting aside ex-parte decree would start from the

service of notice under sub-section 7 as added by the Ordinance LV of

2002. It would not be out of context to mention here that prior to insertion

of sub-section 7, sub-section 6 ordained that in any case in which a decree

is passed ex parte against a defendant under the Act, he may apply within

reasonable time of the passing thereof to the Family Court by which the

decree was passed for an order to set it aside. The word “reasonable time”

was, however, substituted through the Amending Ordinance LV of 2002

dated 1st October, 2002 as “30 days” of the service of notice under subsection 7 of the passing of the decree. In addition thereto, sub-sections 7

and 8 were also added therein.

10.

Though Rule 13 of the Family Court Rules, 1965 postulates that

an ex-parte decree or proceeding may for sufficient cause shown be set

aside by the Court on application made to it within 30 days of the passing

of the decree or decision but this rule is apparently showing scorn and

derogative of the basic provision of “Act ,1964”. It is trite law that

whenever there is an inconsistency between the rule and the basic

provision of statute, the latter will prevail. Guidance in this respect can be

sought from NATIONAL ELECTRIC POWER REGULATORY

AUTHORITY versus FAISALABAD ELECTRIC SUPPLY COMPANY

LIMITED (2016 SCMR 550). The relevant extract from the same is

reproduced below:

W.P.No.2998 of 2018

“11. NEPRA Rules, 1998 are framed by the Authority under

section 46 of the Act, 1997 with the approval of the Federal

Government. Rules and or Regulations are the progeny or off spring of a

Statute and are to be strictly in conformity with the provisions of the

Statute where under same are framed. It is settled proposition of law

that the rules framed under a Statute are to remain within the precinct of

the Statute itself and cannot transgress the limits and parameters of the

parent Statute itself. All efforts are to be made to interpret the rules so

as to bring it in conformity and without injuring the intent and spirit of

the Statute, where it is not possible then the rules in as much as it is

injuring the very intent and spirit which must yield to the Statute. This

view finds support from a case reported as Ziauddin v. Punjab Local

Government (1985 SCMR 365 @ 368), wherein it was held as under:-

"Rules framed under the statute could not go beyond and over

reach the statute itself. To make implementation of statutory

provision consistent harmonious directory effect must be given to

requirement of Rule".

12.

In another case reported as Pakistan v. Aryan Petro

Chemical Industries (Pvt.) Ltd. (2003 SCMR 370) in paragraph 11 of

the judgment, it was held that "This is a settled principle that a statutory

rule cannot enlarge the scope of the section under which it is framed

and if a rule goes beyond what the section completes, the rule must yield

to the statute. The authority of executive to make rules and regulations

in order to effectuate the intention and policy of the Legislature, must be

exercised within the limits of mandate given to the rule making authority

and the rules framed under an enactment must be consistent with the

provisions of said enactment. The rules framed under a statute if are

inconsistent with the provisions of the statue and defeat the intention of

Legislature expressed in the main statute, same shall be invalid".

Reference to this effect can also be made to SUO MOTU CASE NO.13 OF

2009 (PLD 2011 Supreme Court 619) and Civil Appeals Nos.2296 to 2412

of 2001 “FEDERATION OF PAKISTAN through Secretary, Ministry of

Finance and others versus Haji MUHAMMAD SADIQ and others” (PLD

2007 Supreme Court 133).

11.

The nutshell of above discussion is that the Courts below have

committed patent illegality while dismissing the application for setting

aside ex-parte decree, being barred by time. Resultantly this petition is

allowed. The impugned judgment as well as order dated 30th July, 2018

and 3rd February, 2018 are set aside being illegal and unlawful. As a

sequel, the application for setting aside ex-parte decree shall be deemed to

be pending before the learned Senior Civil Judge (Family Division),

W.P.No.2998 of 2018

Chakwal, who shall decide the same afresh on its own merits strictly in

accordance with law. No order as to costs.

12.

Parties are directed to appear before the learned Senior Civil

Judge (Family Division), Chakwal on 14.12.2023.

(MIRZA VIQAS RAUF)

JUDGE

Approved for reporting.

JUDGE

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