HIGH COURT OF AZAD JAMMU & KASHMIR

Family Appeal No: 59/2021.

Date of Institution: 12.10.2021.
Date of Decision: 27.09.2022.

Junaid Rauf S/o Abdul Rauf Chaudhary R/o Oochi Las Islamgarh
Tehsil and District Mirpur.
…..Appellant

Versus

Nabeela Kousar D/o Raj Muhammad R/o Neel Kacham P/o Jatti
Dheri Tehsil and District Mirpur.
….Respondent

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Family Appeal No: 60/2021.

Date of Institution: 12.10.2021.

Junaid Rauf S/o Abdul Rauf Chaudhary R/o Oochi Las Islamgarh
Tehsil and District Mirpur.

.…Appellant
Versus

Nabeela Kousar D/o Raj Muhammad R/o Neel Kacham P/o Jatti
Dheri Tehsil and District Mirpur.

….Respondent
FAMILY APPEALS

Before: Justice Syed Shahid Bahar, J.

PRESENT:
Ch. Gull Bahar, Advocate for the appellant-Junaid Rauf.
Babar Ali Khan, for the respondent-Nabeela Kousar.

Judgment:-
Above titled appeals have been directed against the ex-

parte consolidated judgment and decrees of the learned Judge

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Family Court Mirpur dated 16.12.2019 and order dated

13.09.2021, hence, both the appeals are clubbed up and being

disposed of through this single and consolidated judgment.

The concise facts of the case are that respondent

Nabeela Kousar filed two suits before Judge Family Court Mirpur

on 21.02.2019; one for maintenance allowance and second suit for

recovery of deferred dower. The defendant, appellant herein

appeared before the learned Family Court and also submitted

written statement, wherein he refuted the stance of the respondent.

The initial reconciliation was made between the parties by the

court below, but the same was not fruitful. Both the above suits

were consolidated and in light of the pleadings of the parties,

relevant issues were framed by the learned trial Court. After

framing of issues, parties were directed to lead evidence. The

plaintiff in support of her respective claim, produced oral as well

as documentary evidence before the learned Family Court Mirpur,

whereas defendant/appellant herein absented from the court

whereupon ex-parte proceedings was initiated against him on

05.12.2019. The learned Family Court after hearing ex-parte

arguments finally, passed an ex-parte decree of maintenance

allowance in the manner that the plaintiff/respondent is entitled to

get maintenance allowance to the tune of Rs.5000/- per month

from the date of institution of the suit i.e. 21.02.2019 to the date of

decision (16.12.2019) and in future till the durability of “Nikah”,

whereas, she is entitled to get the deferred dower to the tune of

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Rs.7,90,000/- from the defendant, vide Judgment and decrees

dated 16.12.2019. The said decrees attained finality as the

appellant has failed to challenge the said judgment and decrees

well within stipulated period. The appellant herein again moved to

the learned Family Court for cancellation of ex-parte decrees i.e.

deferred dower and maintenance allowance by filing application

on 24.09.2021. The learned executing court after hearing

arguments of the parties, rejected the said application vide

impugned order dated 13.09.2021, hence, the titled appeals.

The learned counsel for the appellant contended that

the impugned order dated 13.09.2021 is against the law and facts,

hence, liable to be set-aside. The learned counsel further

contended that the learned Family Court has not considered this

aspect of the case that an accident was happened with the appellant

and he was mentally distressed/absented, but the learned trial

Court has overlooked the medical reports and gathered a wrong

conclusion. The learned counsel staunchly contended that the

learned trial Court has also failed to consider this fact that after

“Nikah” departure (Rukhsati) was not executed, so, the issuance of

decree of payment of whole deferred dower is against the law and

liable to be set-aside. He argued that he was un-aware of the

issuance of the impugned decrees and when the warrant was issued

against him by the learned trial Court then he came to the

knowledge of the decrees and after that he moved an application

for cancellation of the impugned decrees, alongwith application

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for condonation of delay. The learned counsel further argued that

the decree of maintenance allowance has also been passed against

the facts and relevant law on the subject, hence, liable to be set-

aside. The learned counsel prayed that by accepting the instant

appeals, the impugned judgment and decree alongwith the order

dated 13.09.2021 passed by the learned Family Court Mirpur may

be set-aside.

Babar Ali Khan, the learned counsel for the respondent

controverting the arguments of the learned counsel for the

appellant and contended that the appellant previously filed both

suits i.e. maintenance allowance and recovery of dower, whereas,

the appellant Junaid Rauf was also filed suit for restitution of

conjugal rights and the stage of pre-trial he promised with the

plaintiff/respondent in the trial Court that he will take her wife

with him after “Rukhsati” within one month and he will provide

maintenance allowance alongwith separate accommodation,

whereupon a compromise decree was issued on 02.10.2018 by the

learned trial Court. He contended that the appellant has committed

violation of the compromise decree, hence, the respondent/plaintiff

was forced to file the suits again against the defendant/appellant

before the trial Court. He vehemently contended that initially the

defendant/appellant appeared before the trial Court and contested

the suits by filing written statement but later on instead to record

evidence, he was absented from the trial Court, hence he was

proceeded ex-parte and ex-parte decrees had been issued which

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have attained finality and at the stage of execution proceedings in

the trial Court. The learned counsel defended the impugned

judgment/ decrees as well as the order on all four corners and

prayed for dismissal of the appeals.

I have heard the learned counsel for the parties and

gone through the record of the case with due care.

The claim of the appellant is that the impugned ex-

parte judgment and decree dated 16.12.2019 and order dated

13.09.2021 passed by the learned Family Court Mirpur, are against

the law and facts, thus, the same may be set aside and the suits

may be decided after hearing the appellant/parties on merits. The

appellant herein moved applications for cancellation of ex-parte

decrees. The record shows that earlier the parties remained in

litigation in the trial Court, however, on assurance of the

appellant-defendant and in view of the settlement of the parties, a

compromise decree was issued in view of settlement and

“Rukhsati” of the plaintiff and one month time was obtained by

the appellant from the court for settling the matter, but when the

appellant failed to act upon the compromise decree dated

02.10.2018, the respondent was constrained to file suits for

recovery of dower as well as maintenance allowance in the Family

Court Mirpur. Finally, after due procedure, the decrees have been

issued in favour of plaintiff/respondent and same have also

attained finality.
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The appellant herein raised the point that he was

injured due to accident and was not able to prosecute the case and

could not appear before the trial Court. In this regard he attached

copies of prescriptions and reports etc with the application. It may

be mentioned here that on execution proceedings, the appellant

herein was appeared before the trial Court and submitted

objections, wherein he clearly prayed that the installment of the

payment of maintenance allowance as well as dower may be fixed

in the interest of justice, meaning thereby that the appellant

admitted the said decrees in the trial Court/executing court but

instead to pay the installments amount he later on submitted

application for cancellation of decree. Mr. Babar Ali Khan, the

learned counsel for respondent also placed on record a photo copy

of judgment titled “Junaid Rauf Vs. Nabila Kousar” passed by this

Court dated 15.02.2022, from perusal of same reveals that the

learned trial Court directed the appellant to deposit maintenance

allowance to Rs.30,000/- per month as past maintenance out of

one lac of decretal amount and current maintenance as Rs.5000/-

per month vide order dated 23.09.2020 and against which

appellant preferred an appeal. This court after obtaining written

arguments, dismissed the appeal of the appellant vide judgment

dated 15.02.2022. It is also mentioned here that the justification

given by the appellant is not considerable as he was prosecuting

his case through counsel and he was well aware of the proceedings

and contested the execution application through his counsel, under

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the circumstances he cannot take his step back and allow to take

the other stance or cannot allow to deviation from his taken stand.

It is also worthwhile to mention here that the Family

Court Act is a special law which provides limitation under the

rules. There is no concept of condonation of delay under rule 13 of

the Family court Procedure Rules. The rule lays down on the

application made to it within 30 days of passing of decree of the

decision. The limitation for setting aside the ex-parte decree is

thirty days from the date of decree and not from the date of

knowledge. In this regard, reference can be placed upon

2012 SCR 341.

The crux of the above is that finding no force in these

appeals, the same are hereby dismissed with no order as to costs.

Circuit Mirpur -Sd-

27.09.2022. JUDGE