ORDER SHEET
IN THE HIGH COURT OF SINDH
BENCH AT SUKKUR
Const. Petition No.S-195 of
2021
Date |
Order with signature of Judge |
1.
For
orders on office objection at flag `A`
2.
For
orders on CMA No.5989/2021
3.
For
hearing of main case
4. For orders on CMA No.5990/2021
17-12-2021
Mr. Abdul Sattar Mahesar, Advocate for the petitioner
.-.-.-. -.-.-.-.-.-.-.-.-
Zulfiqar Ali Sangi,
J:- Through
this petition, the petitioner has assailed the judgment and decree dated 18.04.2015,
passed by learned Family/Civil Judge-III Khairpur, in
Family Suit No.08/2014 re-“Mst. Tahmina Khatoon v. Pathan Khan” whereby
the suit of the respondent/plaintiff was decreed by allowing the
maintenance for respondent/plaintiff at
the rate of Rs.5000/- per month with effect from May 2014 onwards with 10%
annual until subsistence of marriage or completion of Iddat
period and also prompt dower of Rs.200,000/- to be paid by the petitioner/ defendant
to the respondent/plaintiff.
2. Learned Counsel
for the petitioner submits that the judgment and decree passed by learned trial
court is much against law, facts, equity and justice which are liable to be
set-aside as the same has been passed exparte in
absence of petitioner/defendant, without
hearing and providing him chance of
defending the suit. He next submits that
the petitioner is employee in Pakistan Army and was unaware about the
institution of the suit against him by the respondent/plaintiff. He further
submits that the learned trial court has acted illegally and with material
irregularity while decreeing the suit of the respondent/plaintiff. Lastly he
submits that the law, facts, equity and justice requires that the petition of
the petitioner may be allowed and impugned judgment and decree be set-aside.
3. I have heard
learned Counsel for the petitioner and have gone through the material available
on record.
4. Record reflects
that the petitioner/defendant prior to challenge the impugned judgment and
decree before this court through present petition, had filed an appeal against
the impugned judgment and decree before the District Court which has been
dismissed by the learned Additional District Judge-I, Khairpur,
while deciding an application u/s 5 of limitation Act, filed with the appeal,
vide order dated 29.06.2021. The said order though has not been impugned in
this petition however; the said order is well reasoned and the learned
appellate court has rightly dismissed the appeal of the petitioner/defendant as
it was hopelessly time barred by five years. The relevant para
of the said order dated 29.06.2021 is reproduced hereunder:-
“6. Moreover,
that it is a well-established principle of law that in order to seek concession
of condonation and discretion of the Court in this
behalf, the party seeking condonation must explain
the delay of each and every day, which has not been done in this case. It is
also well settled that where an appeal is not filed within time and valuable
rights accrue in favour of the opposite party, such valuable rights cannot be
taken away unless very strong, convincing and solid grounds are shown for
condoning the delay. In Imtiaz Ali V. Atta Muhammad and another, PLD
2008 SC 462, it was held by the Hon’ble Supreme Court of Pakistan that
the appeal, having been filed after one day of the period of limitation, had
created valuable right in favour of the respondents, and as such even the delay
of only one day was not condoned by the Hon’ble Supreme Court of Pakistan as no
sufficient cause was found for fling the appeal beyond the period of
limitation. In Government of Pakistan
through Ministry of Works and another Vs. Messrs Malbrow Builders, Contractor, Sialkot, 2006 SCMR 1248,
the Hon’ble Supreme Court of Pakistan was pleased to hold that the question of
limitation being not a mere technically cannot be taken lightly and the rights
accrued to the other party due to limitation cannot be snatched away without
sufficient cause and lawful justification.”
5. Record reflects that after
passing of impugned judgment and decree by the family court on 18.04.2015, the
petitioner/defendant slept over his right for a long period and on first time
filed an appeal before the appellate court on 12.12.2020 after delay of more
than five years and no plausible explanation had been given for such a long delay
though the law provides time of 30 days to file an application for setting-aside
the exparte decree and petitioner/respondent was
bound to explain the delay of each and every day in satisfactory manner but he
failed to do so and learned appellate court has rightly dismissed his appeal. Learned counsel for the petitioner has also not
been able to point out any illegality or irregularity in the order dated
29.06.2021 passed by the appellate court, which even has not been challenged in
this petition by the petitioner and without challenging the appellate court’s
order filed this petition against the judgment and decree of the Family Court,
which is not maintainable. Learned counsel has also not been able to point out
any illegality in the impugned judgment and decree passed by the trial court. In
these circumstances, instant petition being not maintainable is hereby
dismissed in limine along with pending applications.
JUDGE
Suleman
Khan/PA