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