Malik AMEER KHAN Versus CIVIL JUDGE/FAMILY JUDGE-XVI, KARACHI SOUTH
ORDER
KHADIM HUSSAIN M. SHAIKH, J.--- Through the captioned petition, the petitioner has called in question order dated 27.02.2015, passed by the XVIth Family Judge, Karachi South in Family Execution Application No.57/2014 re-Shabana Bibi and another v. Malik Ameer Khan, whereby the execution application was allowed.
2. Briefly the facts of the case are that respondent Mst. Shabana Bibi, who happened to be the wife of the petitioner Malik Ameer Khan had filed Family Suit No.801/2007 against Malik Ameer Khan (the petitioner) for dissolution of marriage by way of Khula, recovery for Maintenance, Dower amount and Dowry Articles. On failure of pre-trial proceedings, the suit was partly decreed to the extent of grant of "khula" to the plaintiff Mst. Shabana Bibi. However, on the application under Section 17-A Family Courts Act, (XXXV of 1964), the learned trial Court allowed interim maintenance to the tune of Rs.1500/- per month for Master Malik Taufiq Khan (the son of the petitioner). As petitioner Malik Ameer Khan, failed to deposit the aforesaid monthly interim maintenance for his minor son, therefore, his defence was struck-off vide order dated 06.04.2009. After the plaintiff led her evidence, the suit was decreed by the learned 1st Civil/Family Judge, Karachi South, fixing maintenance of Rs.1500/- per month for minor with increase of 10% per anum and Rs.1000/- as maintenance for plaintiff Mst. Shabana of her Iddat period and the rest prayer in Clause 'C' of the plaint was also accepted, vide judgment and decree dated 09.02.2010. Subsequently aforementioned Family Execution Application was filed by the decree holder and process was issued for service upon the judgment debtor/petitioner through all modes including publication, which was published in daily newspaper "KAWISH" Karachi, dated 13.04.2013, but he chose to remain absent. Consequent upon failure of the judgment debtor/petitioner to appear and file his objections to the Execution Application, he was debarred from filing objections vide order dated 28.09.2013 and ultimately the Execution Application was allowed by the Executing Court vide impugned order dated 27.02.2015, hence this petition.
3. The learned advocate for the petitioner has mainly contended that the petitioner is a man of labour class, per him, his monthly earning is Rs.8000/-; that the petitioner was not aware about the proceedings of the aforementioned Family Suit and Execution Application, filed by the respondent Mst. Shabana Bibi, and, thereby the petitioner was not afforded opportunity to defend himself. He, therefore, prays that the impugned order dated 27.02.2015 may be set aside, allowing the petitioner to file objections on the family execution application.
4. None is present for the respondent No.3 Mst. Shabana Bibi to address the arguments on her behalf.
5. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the material available on record.
6. From a perusal of the record it would be seen that the aforementioned suit was filed by the lady respondent No.3, in the year 2007 for dissolution of marriage by way of Khula, recovery of Maintenance, Dower amount and Dowry Articles, which was partly decreed to the extent to grant of khula to the respondent No.3 and then ultimately the suit was decreed as discussed in paragraph-2 supra, vide judgment and decree dated 09.02.2010 (i.e. after about three years), passed by 1st Civil/Family Judge, South Karachi, and then the Execution Application, filed in the year 2013, was ultimately allowed by the learned XVIth Family Judge, South Karachi, on 27.02.2015 i.e. after eight years of filing the Family Suit. On a query, the learned counsel for the petitioner, placing on record order dated 30.09.2016, passed by the learned XVIth Civil/Family Judge, Karachi South, accompanied with the copies of application under section 12(2) read with section 151, C.P.C., application for grant of permission to deposit the decretal amount in installments, affidavit of the petitioner Malik Ameer Khan and counter affidavit of respondent Mst. Shabana Bibi, filed in the learned Family Court, submits that the petitioner was not aware about the aforesaid judgment , decree and the impugned order, hence he had filed an application under section 12(2), C.P.C. read with section 151, C.P.C. before the learned XVIth Family Judge, Karachi South, seeking setting aside of the judgment dated 09.02.2010, decree dated 09.02.2010 and order dated 27.02.2015, passed by the learned Family Court, but the same has been dismissed vide order dated 30.09.2016. A perusal of the counter affidavit filed by respondent Mst. Shabana Bibi reveals that in paragraph-5 thereof, she has categorically denied the contention of the petitioner regarding his unawareness about the aforesaid proceedings. For the sake of convenience, the said paragraph-5 of the counter affidavit of the respondent, placed on record by the learned counsel for the petitioner, is reproduced here:-
"5. That I vehemently denied that I took Ex parte Judgment/Order dated 27-02-2015 or any other order by way of fraud and misrepresentation. I say and submit that I filed Family Suit No.801/2007 for dissolution of marriage by way of Khula, recovery of Maintenance, Dower amount and Dowry Articles before the Court of learned 1st Family Judge Karachi (South). I further say and submit that the Judgment Debtor was duly served and appeared in Family Suit No.801/2007 on 11-01-2008 and filed application for granting time to engage the counsel which application was granted and the Judgment Debtor received the copies of plaint along-with annexures as well as the applications. I further say and submit that on 29-02-2008 Mr. Wazir Hussain Khoso and Riaz Hussain Khoso filed Vakalatnama on behalf of Judgment Debtor and took time to file written statement thereafter counsel for the Judgment Debtor filed Written Statement. During the pendency of suit Decree holder file application under section 17-A of Family Court Act and Judgment Debtor filed his Counter Affidavit. I further say and submit that on 26-05-2008 when the matter was fixed for pre-trial proceeding, the proceeding took place the Judgment Debtor was present and on same date the pre-trial proceeding declared failed and the Hon'ble Court granted Khula on 26-05-2008 and Family Suit was partly decreed. I further say and submit that I filed present Execution Application on the same address which was mentioned in the title of Family Suit."
7. From the above, it would be seen that the defendant/petitioner Malik Ameer Khan after engaging his counsel appeared before the learned Family Court on several dates and filed his written statement in the aforementioned Family Suit and was also present at the time of pre-trial proceedings between the parties, and, thus, the petitioner was aware about the proceedings of the aforesaid Family Suit right from inception and the contention of the learned counsel for the petitioner in this context is patently absurd, which adversely reflects upon the petitioner, who by filing the applications and petition etc. has been attempting to delay the satisfaction of the decree, passed by the learned Family Court against him and to deprive the respondent Mst. Shabana Bibi and Master Malik Taufiq Khan, of the fruits of decree, which include right of maintenance of the said minor, who is not other, but is his own son, as long as he could. Even otherwise this petition is manifestly misconceived and not maintainable. The learned counsel for the petitioner has also not been able to satisfy the Court as to how this petition is maintainable. Accordingly, the petition is liable to be dismissed.
8. Above are the reasons of short order announced by me on 14.12.2016, whereby the instant petition was dismissed along with the listed applications.
MQ/A-108/Sindh Petition dismissed.