ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt: Petition No.S-1126 of 2017.

Date of hearing

Order with signature of Judge

1. For hearing of M.A.No.247/2018

2. For hearing of main case.

09.11.2018.

                        Mr.Zulfiqar Ali Channa, Advocate for the petitioner.                                  Mr.Rafiq Ahmed Abro, Advocate for private respondents     

Mr.Ameer Ahmed Narejo, State Counsel.

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IRSHAD ALI SHAH, J.- The petitioner by way of instant constitutional petition has impugned an order dated 31.10.2017, passed by learned District Judge, Jacobabad, whereby his family appeal was dismissed as time barred with the following observation;

“the impugned judgment and decree have been passed by learned Family Judge Jacobabad on 27.02.2016, and the application for obtaining certified true copies of judgment and decree was filed before learned Family Judge on 25.08.2017, after delay of about six months and certified copies were provided by the Family Court on 26.08.2017, but appellant filed this appeal on 06.09.2017 with further delay of 11 days by showing that he was fallen ill”.

                        The facts in brief necessary for disposal of instant constitutional petition are that the private respondents filed a suit for recovery of maintenance allowance before learned 1^st Civil/Family Judge, Jacobabad. In that suit, the petitioner put his appearance through his counsel then preferred to remain absent. Consequently, the suit so filed against the petitioner was decreed exp-arte by learned 1^st Civil/Family Judge, Jacobabad, vide judgment and decree dated 27.02.2016. The petitioner preferred a family appeal against such ex-parte decree. It was dismissed by learned District Judge Jacobabad on 31.10.2017, being barred by time by way of impugned order.

                        It is contended by learned counsel for the petitioner that the delay in filing of family appeal on the part of petitioner was not willful but beyond his control as he was not feeling well. By contending so, he sought for remand of the matter to learned Appellate Court for fresh decision on family appeal of the petitioner on merits.

                        Learned State Counsel and learned counsel for the private respondents have sought for dismissal of the instant constitutional petition by contending that the leaned trial Court has rightly dismissed family appeal of the petitioner being barred by time by eight months, which was not willful. 

                        I have considered the above arguments and perused the record.

                        Admittedly, the petitioner even after service of the notice did not contest his suit before learned trial Court by way of filing his written statement, without any lawful justification. Consequently, the suit filed against him was decreed ex-parte by learned Family Court. If the petitioner was aggrieved of such ex-parte decree then he was having an opportunity to have challenged the same within time, which he did not challenge within time under the pretext that he was not feeling well. If petitioner was able to attend his physician, then it was easy for him to have attended the learned trial and Appellate Court(s) for filing his written statement or appeal against ex-parte decree within time. It was not done by him for, no obvious reason. The delay in filing of the appeal on the part of appellant is appearing to be willful. In that context, the learned Appellate Court was right to dismiss the family appeal of the petitioner on point of limitation.

                        In case of Khushi Muhammad through legal heirs vs. Mst.Fazal Bibi and others (PLD 2016 SC-872), it has been observed by the Honourable Court that;

“(ii) The hurdles of limitation could not be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignore, negligence, mistake or hardship did not save limitation, nor does poverty of the parties”. 

                        In view of the facts and reasons discussed above, it could be concluded safely that; the learned Appellate Court has committed no illegality by dismissing the family appeal of the petitioner, which could be made right by this Court by way of instant constitutional petition; it is dismissed accordingly, with no order as to cost.

JUDGE

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