FAMIA IJAZ and 2 others vs IJAZ HAMEED and 2 others
This civil appeal arises from a family maintenance dispute where the appellants filed a suit for maintenance, resulting in an interim order and a subsequent decree under Section 17-A of the West Pakistan Family Courts Act, 1964. Dissatisfied with the quantum, the appellants appealed, and the appellate court enhanced the maintenance ex parte. The private respondent filed an application to set aside the ex parte judgment and concurrently invoked the constitutional jurisdiction of the High Court through a writ petition to challenge the execution proceedings. The High Court allowed the writ petition. The core legal question was whether the High Court could competently exercise its constitutional jurisdiction while an application for setting aside the ex parte decree remained pending before the lower forum. The Supreme Court held that the writ petition was incompetent as alternative remedies were being pursued and no final order had been passed on the pending setting-aside application. Consequently, the Supreme Court set aside the High Court's order, revived the pending application for decision on merits, and allowed the appeal.
- Can the High Court exercise its constitutional jurisdiction when an application for setting aside an ex parte judgment and decree is still pending before the lower forum?
- Whether a writ petition challenging execution proceedings is competent while a remedy against the underlying ex parte decree is being pursued?
- Section 17-A, West Pakistan Family Courts Act 1964
ORDER
1. SH. AZMAT SAEED, J.---In the instant appeal, the present Appellants filed a suit, inter alia, for maintenance allowance. In the said suit, an order of interim maintenance allowance at the rate of Rs.2,000/per child per month was passed. The private Respondent did not pay the said interim maintenance allowance, hence, the suit was decreed in terms of section 17-A of the West Pakistan Family Courts Act, 1964. Such decree was of Rs.2,000 per month per child with 10% increase. The Appellants/Plaintiffs were dissatisfied with the said quantum of maintenance, hence, they filed an appeal before the learned first Appellate Court. In appeal, the private Respondent was proceeded ex parte. Where after, the appeal was allowed and the maintenance was enhanced to Rs.8,000/- per month per child with 10% increase. In the above backdrop, the private Respondent filed an application for setting aside the ex parte appellate judgment and decree. During pendency of the said application, the private Respondent filed a Writ Petition in the High Court, wherein it was prayed as under:- "Under the circumstances, it is respectfully prayed that proceedings in execution petition filed in pursuant to the ex parte judgment and decree dated 11.9.2012 may kindly be stayed, stopped and set aside, as ex parte judgment/decree dated 11.9.2012 was passed at the back of the petitioner in harsh, exorbitant and excessive and an irrational manner.
2. Any other relief deemed proper be also allowed to the petitioner."
2. The said Writ Petition has been allowed by way of the impugned order.
3. 3.We have heard the learned counsel for the parties and with their assistance perused the available record.
4. 4.Any relief available to the Respondent against application, which was filed. In the above backdrop, the learned High Court could not exercise its Constitutional Jurisdiction, more particularly, when no order at that point of time had been passed on the application seeking setting aside the ex parte appellate judgment and decree.
5. 5.In the above circumstances, the Writ Petition was incompetent; hence, the impugned order is set aside. The application of the Respondent, if any, for setting aside the ex parte appellate judgment and decree, if pending, shall be decided on its own merits. If it is disposed of in view of the impugned order of the learned High Court only then it shall stand revived.
6. 6.Consequently, this Civil Appeal is allowed in the above terms.