Tuesday, 29 May 2012

Time period for restoring suit dismissed in default

PLJ 2006 Sh.C. (AJ&K) 39

Present: Iftikhar Hussain Butt, J.

SIKANDAR ALI--Appellant

versus

ROBINA KOUSAR--Respondent

Civil Appeal No. 62 of 2005, decided on 14.4.2006.

Azad Jammu & Kashmir Family Court Procedural Rules, 1998--

----Rule XII (II)--Custody of minor--Ex-parte decree--Petition against Ex-parte decree dismissed--Petition for restoration of application also dismissed--Validity--Petition for setting aside ex-parte decree was dismissed and application for its restoration was filed after more than period of five months, whereas according to Rule XII (II) of Rules, 1998, Court was empowered to restore suit dismissed in default on application within 30 days of its dismissal in default provided sufficient cause was shown whereas instant application was filed after period of more than five months without showing any sufficient cause--Appellant did not file any application for condonation of delay--Application can also be dismissed in default and it can also be restored like suit in absence of any express provision of law--Held: Petition was hopelessly time barred which was rightly dismissed by Court below without framing issues--Appeal was meritless and was accordingly dismissed.             [Pp. 42, 43 & 44] A & B

2003 SCR 313; 2003 SCR 43; 2002 SCR 332 & 2005 SCR 37, ref.

Mr. Muhammad Yousaf Arvi, Advocate for Appellant.

Mr. Muhammad Ashraf Ayyaz, Advocate for Respondent.

Date of hearing : 14.4.2006.

Order

This appeal has been preferred against the decision of Civil Judge empowered as Guardian Judge Mirpur dated 9.9.2005, whereby an application for the restoration of file was dismissed.

The facts precisely stated are that an ex-parte decree of guardianship and custody of Rataba Ali, minor was passed in favour of respondent, herein, and against the appellant, herein, on 18.3.2004. The respondent, herein, filed an application for execution/complaince of the decision dated 19.10.2004. Meanwhile, the appellant presented an application for setting aside the aforesaid ex-parte decree, which was dismissed for default of prosecution on 5.1.2005. Feeling aggrieved, the appellant filed an application for restoration of the petition for setting aside the ex-parte decree on 10.6.2005 and averred that on account of misunderstanding of junior counsel, the appeal was dismissed for want of prosecution, therefore, non-appearance of the learned Counsel for the appellant was not intentional. It was further averred that prior to the instant application, the appellant also filed an application for restoration of the file which was dismissed on technical ground. The petition was resisted by the respondent who contended that the application is not maintainable because an earlier application for restoration of the file was dismissed by the Court below but the aforesaid order of dismissal was not challenged before any superior Court, which has attained finality. It was also averred that the application has been presented beyond period of limitation, therefore, is liable to be dismissed.

The learned Court below after affording an opportunity of hearing to both the parties, dismissed the application for restoration of the file vide its decision dated 9.9.2005. It is the aforesaid decision which has been assailed through the instant appeal.

Arguing on behalf of the appellant, Muhammad Younis Arvi, Advocate, submitted that the Court below fell in grave error while dismissing the application for restoration of file because under Rule XII (1) AJK Family Courts Procedural Rules, 1998 only a suit can be dismissed in default and not an application. The learned counsel further contended that the Court below misdirected itself while recording its decision without framing issues because the question of expiry of limitation is mixed question of law and fact which needs a detailed scrutiny through recording of the proper evidence. The learned Counsel pointed out that two petitions were pending before Court below out of these one was adjourned and the other was dismissed but the junior Advocate appearing on his behalf misunderstood that both the cases were adjourned, therefore, his absence before the Court was not intentional. The learned Counsel prayed that the impugned decision may be set aside and the original file may be restored.

Controverting the arguments raised by learned Counsel for the appellant, Ch. Muhammad Ashraf Ayyaz, the learned Counsel for the respondent submitted that an ex-parte decree was passed in favour of the respondent on 18.3.2004 but an application for setting aside the same was instituted on 24.11.2004, after a period of seven months, which was dismissed vide order dated 5.1.2005. The learned Counsel pointed out that an application for restoration of the same was filed before the Court below which was also dismissed vide order dated 27.4.2005 but the aforesaid order was not challenged before any Court, therefore, it has attained finality. The learned Counsel also maintained that neither two files were consolidated by Court below nor both were fixed on the same day for hearing, therefore, the question of misunderstanding of junior counsel about the adjournment of the case does not arise. The learned Counsel vehemently contended that an application for setting aside the ex-parte decree was dismissed on 5.1.2005 but the appellant filed a second petition for its restoration on 10.6.2005, after five months of the order, which is hopelessly time barred. He submitted that neither the learned Counsel nor his junior counsel filed any affidavit to prove the sufficient cause for non-appearance, therefore, the impugned decision does not require any interference. In support of the arguments, the learned Counsel cited the following authorities:--

1.             2002 SCR 121.

2.             2002 SCR 332.

3.             2003 SCR 43 & 313.

4.             2005 SCR 37.

I have given my dispassionate thought to the arguments addressed at the Bar and perused the record with care. It is admitted on record that an ex-parte decree was passed in favour of respondent against the appellant on 18.3.2004, and the same was challenged on 24.11.2004. It is further admitted that an application for setting aside the ex-parte decree was dismissed on 5.1.2005. Another petition for restoration of the application dated 24.11.2004 was filed but it was also dismissed vide order dated 27.4.2005, prior to the application presented on 10.6.2005. The aforesaid order of dismissal dated 27.4.2004 was never challenged before this Court, therefore, it has attained finality, thus, it cannot be called in question by filing a subsequent application.

The perusal of application for restoration of the file for setting aside the ex-parte decree presented on 10.6.2005 also shows an admission on the part of appellant wherein it has been averred in Paragraph No. 3 of the petition that the earlier application for restoration of the file was dismissed on technical ground i.e. non-filing of a Vakalatnama.

For the sake of the argument, if the subsequent application for restoration filed on 10.6.2005 is taken into consideration, it also renders no help to the case of appellant because it has not been proved on the record as to whether both the application for setting aside the ex-parte decree and the petition to place under suspension the execution proceedings, were consolidated or fixed for hearing on the same day, therefore, the question of misunderstanding of the dates does not arise. Furthermore, the aforesaid aspect of the case was never supported by the appellant through filing affidavits by learned Counsel or his junior counsel.

It is also on the record that the petition for setting aside an ex-parte decree was dismissed on 5.1.2005 and the application for its restoration was filed on 10.6.2005, after more than a period of five months, whereas according to Rule XII (II) of the Azad Jammu & Kashmir Family Court Procedural Rules, 1998, the Court is empowered to restore a suit dismissed in default on application within 30 days of its dismissal in default provided a sufficient cause is shown whereas the instant application was filed after a period of more than five month without showing any sufficient cause, as stated earlier. It will not be out of place to note here that the appellant did not file any application for condonation of delay.

The August Court of AJK has observed in numerous cases that it is the duty of the party to explain the delay of each day. A reference may be made to the following cases on the point:--

In the case titled Development Authority MZD & 4 others v. Iqbal Hussain Nizami (2002 SCR 121), the question of delay of one day was resolved in the following manner at page 124 of the report:

"I have given my due consideration to the arguments advanced by the learned Counsel for the petitioners as well as the learned Counsel for the respondent and perused the relevant record. The impugned judgment of the High Court was announced on 29.11.2001, whereas the petition for leave to appeal was lodged on 29.1.2002. The application for supplying the copies of grounds of writ petition and impugned judgment of the High Court was moved by the petitioners on 29.1.2002 and the same were supplied to them on the same day, i.e. 29.1.2002 when the period of limitation for filing the petition had already expired. There is no explanation whatsoever furnished by the petitioners for lodging the petition for leave to appeal one day late than the prescribed period of limitation. It is a settled law that the delay of each and every day has to be explained by the petitioners for lodging the petition after the prescribed period of limitation."

In the case reported as Govt. of Pakistan v. Mst. Parveen & 2 others (2003 SCR 313), it was observed at page 314 of the report as under:--

"We have heard the learned Counsel for the parties and also gone through the record carefully. It is noticed that the appeal before the High Court was time-barred and the appellants failed to explain the delay of each and every day as the application filed for condonation of delay is silent about the aforesaid fact. There was no sufficient cause for acceptance of application filed for condonation of delay. The judgment and order passed by the High Court does not warrant any interference as the same were recorded after due appreciation of the facts and law. The appeal, therefore, is dismissed with costs."

In the case titled Muhammad Javaid & another v. Shamim Akhtar (2003 SCR 43), the petition for leave to appeal barred by limitation of two days was dismissed.

Identical view was expressed in the case reported as Abdul Ghafoor v. State & another (2002 SCR 332).

I find no substance in this plea of the learned Counsel for the appellant that only a suit can be dismissed for default and not an application, therefore, the Court below was not justified to dismiss his application for want of prosecution. Suffice to note that although the provisions of CPC and Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993. However, the Courts can exercise inherent powers in absence of any express provision of law to meet the ends of justice. At the same time, the Courts are vested with the powers to make any order which they are pleased to consider to be in the interest of justice. The Courts can adopt a particular procedure to do justice or redress a wrong when an express provision of relevant law is not available to meet the requirements of the case. In this regard, reference may be made to the case reported as Robeena Fazil V. Yasin Khan (2005 SCR 37), wherein the following observation has been made at page 40 of the report:--

"No doubt the provisions of C.P.C. and the Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993, however, the inherent powers are available to the Courts which are invoked when any situation is not covered by any express provision of law and where the Courts feel that the justice is to be done, then in such peculiar circumstances even though no procedure is prescribed for such occasion, the Courts in exercise of inherent powers in such exceptional circumstances allow the parties such relief which in their opinion would meet the ends of justice. In suitable cases where no codified law is available, the Courts have got inherent competence to determine how proceedings should be conducted. The Courts can adopt a suitable procedure which is nearer to the principle of justice. Under the provisions of the Family Courts Act, 1993 there is no absolute bar on the powers of the Family Courts that these cannot allow any suit to be restored where it is dismissed in default or these cannot allow a party to amend its pleadings. Therefore, the learned Judge in the Shariat Court while placing reliance upon the case titled Mst. Zareena Begum vrs. Nisar Hussain & another [1996 SCR 82] rightly allowed the amendment application of the respondent, whereby he wanted to raise the question of divorce."

In view of the aforesaid position, an application can also be dismissed in default and it can also be restored like a suit in absence of any express provision of  law.  In  such  state  of  affairs,  the  petition  is  hopelessly  time barred, which was rightly dismissed by the Court below, without framing the issues.

For the foregoing reasons, I find no merit in this appeal which is hereby dismissed.

(Aliya Sattar Chaudhry)            Appeal dismissed

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