Power of Attorney from Pakistan to be used in Saudi Arabia

  Sometimes it happens that a Pakistani National who has spent some time of his life in Saudia Arabia cannot go back to Saudi Arabia for some genuine reasons. Such a person can resolve his outstanding matters in Saudi Arabia by appointing any person in Saudi Arabia as his attorney. 

The procedure of preparing this power of attorney is little complicated. It has to be drafted in two languages i.e. English and Arabic. Ideally it should be drafted by a Pakistani lawyer in English and translated by a translation house dealing in embassy matters. Such power of attorney should contain authentic information related with the court case, CNIC details of the persons giving and obtaining power of attorney, passport details of both persons and so on. Generally a lawyer charges 100 USD (approximately 350 SAR) for drafting and translation services.

Once the document is ready, it should be attested by the Notary Public in Pakistan. Further the person giving power of attorney should visit Ministry of Foreign Affairs (MOFA) for its attestation. The charges for attestation of such power of attorney are USD $150 (approximately 525 SAR) It needs further attestation from Saudi Embassy in Pakistan which costs around 200 SAR. Finally that document will be sent to the person in Saudi Arabia which can use it before the proper forum or court of law where required.

For queries you can consult lawyergolra@gmail.com

Regards,

Salman Yousaf Khan (Golra)

International Lawyer

+923335339880

While computing period of limitation, Intervening period of summer vacations has to be excluded

 PLJ 2002 Peshawar 151 [D.I. Khan Bench]

Present: qazi ehsanullah qureshi, J. ZULFIQAR-Petitioner

versus

MUHAMMAD JAN-Respondent C.R. No. 134 of 2001, decided on 21.1.2002.

 Civil Procedure Code, 1908 (V of 1908)--

—-O.V, Rr. 16, 18 & 19-O.LX, R. 13 & Ss. 12(2) & 115-Summons were not served in accordance with the mode prescribed in C.P.C.~Effect—No endorsement on the back of the summons indicated as to why defendant was not served at his home address as given in the plaint and why he was served in the B.C. Office and who had indemnified him and in whose presence he was served-Trial Court before passing ex-parte decree and before ordering ex-parte proceedings had not examined process server on oath which was mandatory legal requirement-Appellate Court while disposing of appeal did not examine as to whether trial Court while
proceeding ex-parte had acted in accordance with relevant provisions of law—Appellate Court treated ex-parte application to be one under S. 12(2)
C.P.C. and ignored the fact that such application could be. filed within three years and not within thirty day-Courts below failed to understand
that while computing period of limitation, intervening period of summer vacations has to be excluded-Judgments and decrees of Courts below
were set aside and case was remanded to trial Court for decision on merits by giving them opportunity to contest the case.                                                                                               [P. 154] A

Mr. Liaqat All Khan Marwat, Advocate for Petitioner. Mr. Abdul Aziz Khan Dalokhel, Advocate for Respondent. Date of hearing: 21.2.2002.

judgment

The petitioner has moved this Court through the instant revision petition for setting the ex-parte judgments and decrees for Rs. 40,000/- dated 29.4.2000 and dismissal order dated 25.4.2001 on application for setting aside the ex-parte decree passed hy the learned Senior Civil Judge Lakki, and also dismissal of appeal vide order dated 6.11.2001 of the learned District Judge Lakki.

2.   The controversy in the matter is that initially respondent had  filed a suit for recovery of Rs.  40,000/- in connection with the sale
transaction of landed property, which according to the plaintiff/respondent despite payment of the entire sale consideration, the petitioner had failed to

. transfer the suit land in his name. The learned trial Court after issuance of notice and its receipt as served proceeded against ex-parte, recorded ex-parte evidence and decreed the suit as prayed for vide judgment and decree dated 29.4.2000 in favour of the respondent against the petitioner. Subsequently, when the petitioner came to know during the execution proceedings about the ex-parte decree, he moved the Court for its setting aside but the said application was dismissed on 25.4.2001. Aggrieved therefrom, the petitioner filed an appeal before the learned District Judge Lakki which too was dismissed on 6.11.2001. Hence this revision.

3.  The learned counsel for the petitioner, inter alia, contended that the petitioner was not properly served during the trial proceedings in the
manner and mode prescribed under the CPC. There is an endorsement on back of the summon by the process-Server that service on the petitioner was
affected at D.C. Office. It is un-understandable and no such reasons are given on the summon that why the petitioner has not been served on his home
address. It also does npt contain that how the petitioner was identified at D.C. office. The procedure under Rule 18 CPC regarding service has not
been adopted by the learned -trial Court who has proceeded in the matter in great hurry and has dealt the matter summarily. He next argued that
execution petition was filed by the respondent/plaintiff after obtaining ex parts decree on 12.7.2000 which was fixed for hearing on 31.7.2000. It is
presumed that the petitioner in the execution proceedings might have been served between 12/7/2000 and 31/7/2000. Be that as it may, he is served on

12.7.2000 ------  in the circumstances of the case, even than thirty days expires on 12.8.2000 which was month of August and Courts were closed due to Summer Vacations till 31.8.2000. Under Section 4 of the Limitation Act, it is provided that when the Courts are closed, the limitation period is to be reckoned w.e. from the opening of the Court and the period of vacations is not to be counted for the purpose of limitation. So, the petitioner promptly filed an application for setting aside the ex-parte decree on 1.9.2000 which is well within time, hence the learned trial Judge mis-construed and mis­conceived the legal aspect of the matter and had not appreciated the delicacy of the situation.

4.            The learned counsel for respondents opposed the arguments of the learned counsel for the petitioner with full force and submitted that the
petitioner was served properly strictly according to law and the learned trial Judge after due reasonable diligence proceeded ex-parte followed by a decree
against the petitioner. The judgments/decrees impugned herein are perfectly in order and the petitioner had failed to point out any jurisdictional error,
illegalities and irregularities if committed by the Courts below, so as to warrant interference by this Court in exercise of its revisional jurisdiction.

5.            I have gone through the record with the able assistance of the learned counsel for the parties. Let the petition be thrashed out in view of
the provisions meant for the purpose. Order 5, Rule 16 CPC envisages as under:--

"16. Persons served to sign acknowledgment.-Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.""

Order 5, Rule 18 CPC reads as under:

18. Endorsement of time and manner of serw'ce.--The servicing officer shall in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."

Order 5, Rule 19 CPC speaks as below:

Rule 19. Examination of the Serving 0/7Icer.--"Where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit."

6.   The bare reading of the above mandatory provisions of the Code of Civil Procedure 1908 provides complete guidelines for the Courts and
Process-Serving Agencies. It says that in all cases in which summons have been served under Rule 16 CPC mentioned above, the Process-Server shall
require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 ibid further  directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Similarly, Rule 19 CPC lays down the procedure for the Courts that where a summon is returned under Rule ,17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further.

7.         In the instant case, endorsement on the back of summons does not indicate any such method that the mode of service is affected in line with the above provisions of law. There is no mention of identifying the person served, as to who had identified the petitioner at B.C. office, no witness is cited that in whose presence the service is affected, there is no endorsement on the back of the summons that as to why the petitioner is not served at his home address given in the plaint, and that what were the circumstances led him to locate the petitioner at B.C. office. Similarly, the Court before proceeding ex-parte had not examined the process-server on oath. The appellate Court had also treated the appeal before him off-handedly without applying his mind to the mandatory provisions of law. He was so careless that he had not even examined that under what provision of law, the application for setting aside the ex-parte decree was moved by the petitioner. He had treated such application U/S. 12(2) CPC and dismissed the appeal perhaps he was not conversant with the law on the subject that in case the
application of the petitioner was filed U/S. 12(2) CPC, the time prescribed thereof is three years and not thirty days, as repeatedly held by the apex Court, as falls under Article 181 of the Limitation Act. It is also noticed with serious concern that both the Courts below have not appreciated the fact that after excluding the vacation period, the time is to be counted (thirty days) after excluding intervening period of Summer vacations. As such, in my view, the Courts below have not dealt
with the matter from all legal angles and disposed it of against the all norms of justice.

9.    In the wake of above discussion, I am inclined to accept this  revision petition, set aside the impugned judgments and decrees of the two
Courts below and remand the case to the trial Court for trial denovo. The parties shall be provided with^an opportunity to contest the case which shall

be ----  decided on merits.............. The Courts are required to dispense substantial justice instead of disposal on mere technicalities. No order as to costs.

(A.P.)    Case remanded

Benefit of Summer Vacations can be taken if appeal filed on 1st September

 PLJ 2012 Lahore 308

Present: Mehmood Maqbool Bajwa, J.

RASHEED AHMAD etc.--Petitioners

versus

Mst. SURRAYA BIBI etc.--Respondents

C.R. No. 199 of 2009, heard on 27.10.2011.

Limitation Act, 1908 (IX of 1908)--

----Art. 152--Civil Procedure Code, (V of 1908), S. 115 & O. XVII, R. (3) Code (Lahore High Court Amendment), O. XVII, R. 1(3)--Closure and dismissal of suit for want of evidence--Order was called by preferring an appeal which was dismissed being barred by time--Appeal was hopelessly barred by time and as such no exception can be taken to judgment before High Court--Order regarding closure of evidence could be deemed to be an order u/O. XVII, R. (1)(3) of Code (Lahore High Court Amendment)--Counsel was not present in the Court when suit was dismissed for want of evidence--Validity--According to Art. 152 of first schedule of Limitation Act, appeal can be preferred within thirty days from date of decree or order before Distt. Court--Since judgment and decree was made on 18.7.2008, therefore, time would be reckoned from 19.7.2008, excluding the day on which judgment and decree was drawn up and as such period of thirty days expired on 16.8.2008--Benefit of summer vacations, even if given, required the petitioners to prefer the appeal against judgment and decree on first day of Sep. 2008, the day when Courts re-opened.    [P. 313] A

Limitation Act, 1908 (IX of 1908)--

----S. 5--Civil Procedure Code, (V of 1908)--O. XVII, R. 3--Closure of evidence--Suit was dismissed--Appeal was dismissed being barred by time--Challenge to--Condonation of delay but no sufficient cause--Validity--Petitioner applied for certified copies of judgment and decree of trial Court on 13.10.2008 after expiry of period of 3 months--Ground agitated regarding mis-conception of next date of hearing has been dealt with finding it un-tenable--No period of limitation was prescribed at instance of petitioners that no period of limitation was prescribed in order to assailed the vires of void order though might not be questioned but the proposition of law cannot advance plea of petitioners in view of discussion made as judgment and decree cannot be said to be void--Petition was dismissed. [P. 313] B

Revisional Jurisdiction--

----Revisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegality or with material irregularity.  [P. 313] C

Ch. Manzoor Hussain Basra, Advocate for Petitioners.

Mr. Abdul Khaliq Safrani, Advocate for Respondents No. 1 to 3.

Date of hearing: 27.10.2011.

Judgment

Legality and validity of judgment and decree dated 18.7.2008, recorded by learned Civil Judge, Pasroor, judgment and decree dated 8.11.2008 recorded by a learned Addl. District Judge Pasroor dismissing the appeal of petitioners in limine has been called in question at the instance of petitioners/plaintiffs.

2.  Present petitioners, instituted suit for declaration and perpetual injunction against the Respondents No. 1 to 3 claiming proprietary and possessory rights being collateral of Muhammad Ismail, father of Respondents No. 1 to 3 and assailing the vires of Mutation No. 462 dated 16.9.1987 attested in favour of Respondents No. 1 to 3 by their father i.e. Muhammad Ismail whereby the property owned by Muhammad Ismail was alienated by him in favour of his daughters by way of gift.

3.  The suit was contested by Respondents No. 1 to 3. Respondents No. 4 & 5 were arrayed as proforma defendants. After casting necessary issues, lis was posted for evidence of petitioners for 30.5.2007. On 18.7.2008, evidence of petitioners was not in attendance resulting in its closure and dismissal of suit for want of evidence under Order XVII, Rule 3 of the Code of Civil Procedure, 1908. The said judgment and decree was called in question by preferring an appeal on 31.10.2008. Along with appeal, application under Section 5 of The Limitation Act, 1908 was made. While dismissing the application under Section 5 of The Limitation Act, the appeal preferred by present petitioners was dismissed being barred by time vide judgment dated 8.11.2008.

4.  Heard.

Learned counsel for the petitioners maintained that the date i.e. 18,7.2008 was not fixed at the request of petitioners as is evident from interim order sheet because on i.e. 14.7.2008 adjourning the suit for 18.7.2008, the learned Presiding Officer was on leave and suit was adjourned by ministerial staff. Further maintained that since case was not adjourned at the request of present petitioners, therefore, penal provision of Order XVII, Rule 3 of the Code of Civil Procedure, 1908 was not attracted to the facts of the case. Making reference to the provision of Order XVII, Rule 5 of the Code of Civil Procedure, 1908, it was argued that since the learned Presiding officer was absent, therefore, the ministerial staff was required to hand over slip of paper specifying the next date fixed for the proceedings in the suit. Submitted that the said mandatory provision was not complied with and as such the order regarding closure of evidence and judgment and decree passed in pursuance of said order is legally not sustainable. Further maintained that the Petitioner No. 1 appeared before learned Civil Court on 28.6.2008 and Reader of the Court though adjourned the case to 14.7.2008 but due to misunderstanding he noted the next date as 14.10.2008 resulting in non-appearance of petitioners on 18.7.2008. submitted that affidavit of Advocate representing the petitioners is annexed. Learned counsel for the petitioners has placed reliance on "Nowsheri Khan vs. Said Ahmad Shah" (1983 SCMR 1092), "Haji Muhammad Ramzan Saifi Vs. Mian Abdul Majid and others" (PLD 1986 Supreme Court 129), "Kamran Co. and others vs. Messrs Modern Motors and another" (PLD 1990 Supreme Court 713) and "Mst. Nazima Batool alias Nazim Batool vs. Sabar Ali Shah" (2004 CLC 1175).

Questioning the legality of judgment of learned First Appellate Court, it was maintained that since the appeal could not be preferred within time due to sufficient cause, therefore, the time should have been extended while condoning the delay. Continuing his arguments, learned counsel for the petitioners maintained that learned First Appellate Court, could not appreciate the implication of Order XVII, Rule 3 of The Code of Civil Procedure, 1908. Submitted that the learned Civil Court as well as learned First Appellate Court while passing the impugned judgments and decrees failed to exercise jurisdiction vested in it.

Controverting the arguments, learned counsel for the Respondents No. 1 to 3 maintained that the petitioners were provided more than sufficient opportunities to produce evidence but their failure to produce evidence and that too without any justification resulted in closure of their evidence. Maintained that learned counsel for the petitioners was present at the time when the suit was adjourned for 18.7.2008 and as such the argument regarding misunderstanding of next date of hearing is mis-conceived and ill-founded. Submitted that the appeal preferred by the petitioners was hopelessly barred by time and as such no exception can be taken to the judgments impugned before this Court.

5.  Perusal of record suggests that issues were cast by the learned trial Court on 27.3.2007 adjourning the lis for evidence of petitioners for 30.5.2007.

11 opportunities were granted to the petitioners for production of evidence barring those when the Advocates were observing strike and Presiding officer was on leave. Perusal of order dated 14.7.2008 suggests that on the said date Presiding Officer was on leave and Reader of the Court, adjourned the suit for 18.7.2008 when evidence of petitioners was not present leaving no option with the trial Court but to close the same and dismiss the suit for want of evidence. Though well settled proposition of law canvassed by the learned counsel for the petitioners regarding non-implication of penal provision of Order XVII, Rule 3 of the Code of Civil Procedure, 1908 in the attending circumstances can not be disputed and as held in the reports relied upon but nevertheless this fact by itself is not sufficient to set at naught the judgment of learned trial Court in view of the provision of Order XVII, Rule 1(3) of the Code of Civil Procedure, 1908 (Lahore High Court Amendment), according to which, where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith. Text of the amendment made by Lahore High Court and Order XVII, Rule 3 of the Code of Civil Procedure, 1908 is entirely different. The expression "to whom time has been granted" has been used in Rule 3 of Order XVII but the said expression does not find mentioned in order XVII, Rule 1(3) of the Code (Lahore High Court Amendment), according to which where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith. In view of the matter, though the provisions of Order XVII, Rule (3) of The Code of Civil Procedure, 1908 was not attracted to the facts of the case but evidence could have been closed in exercise of powers under sub-rule (3) of rule (1) (Lahore High Court Amendment) if sufficient cause was not shown. Reliance is placed upon "The Administrator, Lahore Municipal Corporation vs. Abdul Hamid" (1987 Law Notes (Lahore) 400), "M/s. A.C.E Enterprises vs. Additional District Judge Lahore and others" (1987 Law Notes (S.C.) 530) and "Ghulam Qadir alias Qadir Bakhsh vs. Haji Muhammad Suleman and 6 others" (2002 Civil Law Cases 1111). Despite availing 11 opportunities, petitioners failed to produce evidence. No justification was put forward at the instance of counsel for the petitioners in attendance seeking indulgence of the Court and as such order regarding closure of evidence could be deemed to be an order under Order XVII, Rule (1)(3) of Code (Lahore High Court Amendment).

Mention of provision of law in the order passed by trial Court though not applicable by itself is not sufficient to grant premium to the petitioners. The argument as such canvassed by the learned counsel for petitioners though with vehemence can not advance plea of petitioners. It is to be noted that plea has been taken at the instance of petitioners that on 28.6.2008, the Petitioner No. 1 appeared before learned trial Court and Reader of the Court adjourned the suit for 14.7. 2008 but the Petitioner No. 1 noted the next date as 14.10.2008 due to misunderstanding. In order to substantiate the said ground, an affidavit sworn to by Mr. Maqsood Ahmed Bhatti, Advocate has been appended with the revision petition. The contents of affidavit sworn to by Advocate suggests that Petitioner No. 1 due to misconception intimated the next date of haring as 14.10.2008, which was accordingly noted in the diary. The contents of affidavit further suggest that counsel was not present on 18.7.2008 in the Court when the suit was dismissed for want of evidence. The reason assigned and argument canvassed on this score cannot advance plea of petitioners. According to Article 129(e) of the Qanun-e-Shahadat Order, 1984, presumption of correctness is in favour of judicial proceedings. Credibility of judicial proceedings was a moot point before the Apex Court in "Fayyaz Hussain vs. Akbar Hussain and others" (2004 SCMR 964) in which it has been held that presumption of correctness is always in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. It was further held that strong and un-impeachable evidence is required to rebut the presumption. Reference may also be made to "Chiragh Din vs. Mumtaz Ali and another" (2009 PCr.LJ 126). It is to be noted that perusal of orders dated 28.6.2008, 14.7.2008 and 18.7.2008 suggest that counsel for the parties were present. Affidavit sworn to by counsel statedly representing the petitioners before trial Court that he was not in attendance on 18.07.2008, as such can not advance the plea of petitioners in view of rule of law expounded in "Fayyaz Hussain" in which an affidavit was sworn to by the counsel and while disbelieving it, it was held that giving preference to affidavit of counsel over judicial proceedings would leave to a large number of complications. Argument canvassed with reference to non-compliance of provision of Order XVII, Rule 5 of the Code of Civil Procedure, 1908 also can not advance plea of petitioners for the simple reason that on 18.7.2008, counsel for parties were marked present. Wisdom and object behind the said provision of law is to intimate the party regarding next date of hearing in absence of Presiding officer. Since learned counsel for the petitioners was present on 18.07.2008 attracting penal consequences therefore omission if any, will not advance plea of petitioners.

6.  The impugned judgment and decree was drawn up on 18.7.2008 while the petitioners preferred the appeal on 31.10.2008. According to Article 152 of the first schedule of the Limitation Act, appeal can be preferred within thirty days from the date of decree or order before District Court. Since the judgment and decree was made on 18.7.2008, therefore time shall be reckoned from 19.7.2008, excluding the day on which judgment and decree was drawn up and as such the period of thirty days expired on 16.8.2008. Benefit of summer vacations, even if given, required the petitioners to prefer the appeal against the judgment and decree on the first day of September 2008, the day when the Courts re-opened. It is to be noted that petitioners made application for obtaining certified copies on 13.10.2008, as referred to by the learned 1st appellate Court when admittedly the period of 30 days was expired. Admittedly, the appeal preferred by present petitioners was barred by time. Though the petitioners made an application under Section 5 of the Limitation Act for condonation of delay but the reason assigned in Para 2 of the said application can not be said to be a "sufficient cause" within the meaning of Section 5 of the Limitation Act. Even otherwise, petitioners applied for certified copies of judgment and decree of trial Court on 13.10.2008 after expiry of period of 3 months. Ground agitated regarding mis-conception of next date of hearing has been dealt with finding it un-tenable. Argument canvassed at the instance of petitioners that no period of limitation is prescribed in order to assail the vires of void order though may not be questioned but said proposition of law cannot advance the plea of petitioners in view of discussion made above as the judgments and decrees can not be said to be "void".

7.  Revisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity.

8.  Pursuant to above discussion one can not point out any jurisdictional defect within meaning of Section 115 of the Code of Civil Procedure, 1908 in the impugned judgments and decrees. In view of above state of facts and law, revision petition being devoid of force is hereby dismissed.

9.  The petitioners deposited security to the tune of Rs. 3000/- Vide order dated 27.2.2009 with Deputy Registrar (J) of this Court. Since the revision petition has been dismissed having no merits, therefore, Respondents No. 1 to 3 are entitled to withdraw the same as costs deposited in compliance of order dated 27.02.2009.

(R.A.)  Petition dismissed

Filing of Appeal during Summer Vacations

 PLJ 2021 Lahore (Note) 74

Present: Asad Munir, J.

AHSAN JAVED--Appellant

versus

ADDITIONAL DISTRICT JUDGE, LAHORE etc.--Respondents

W.P. No. 19674 of 2011, decided on 4.11.2011.

West Pakistan Family Courts Act, 1964--

----S. 17-A--Muslim Family Law Ordinance, 1961, Ss. 9 & 10--Suit for recovery of maintenance allowance and dowry articles--Non-payment of interim maintenance allowance--Defence of petitioner was struck off--Suit was decreed--Appeal--Dismissed being time-barred--Appeal was filed during summer vacations--Challenge to--Additional District Judge wrongly held that petitioner’s appeal was time-barred as was filed during of summer vacations in month of August--In view of section 4 of Limitation Act, 1908, petitioner had two options as he could either file his appeal during summer vacations on any day in August, 2010 or he could file it on 01.09.2010 upon reopening of Courts--Appeal filed by petitioner during summer vacations was within time as it could be filed later on 1.9.2010--Argument that suit filed by respondents no.2 to 4 has been disposed of with regard to other claims made therein is untenable as appeal has been wrongly dismissed as time-barred instead of being decided on merits--Petition allowed.

                                                                                      [Para 3] A & B

Mr. Muhammad Shahbaz Rana, Advocate for Petitioner.

Mr. Muhammad Zaman Bhutta, Advocate for Respondent.

Date of hearing: 15.9.2011.

Order

After the dissolution of the marriage between the petitioner and respondent No.2 on 21.01.2010, a composite suit for the recovery of maintenance allowance for the two minor children, respondents
No. 3 and 4, for the reimbursement of the delivery expenses of respondent No. 4 and for the return of respondent No. 2’s dowry articles, valued at Rs. 1516334/-, was filed on 03.02.2010. Vide order dated 17.06.2010, the learned Judge Family Court, Lahore, allowed Rs. 4000/-.as interim maintenance to each of the two minors which was to be paid by the 14th of every month. The interim maintenance was not paid by the petitioner by 14.07.2010 whereupon vide order dated 16.07.2010 the learned Judge Family Court struck off the defense of the petitioner under Section 17-A of the West Pakistan Family Courts Act, 1964 and also passed judgment/decree dated 16.07.2010 whereby monthly maintenance of Rs. 4000/- has been allowed to each minor with effect from the date of institution of the suit subject to the annual increase of 10%. On 21.08.2010, the petitioner filed an appeal which has been dismissed for being time-barred by the learned Additional District Judge, Lahore, vide his order dated 21.08.2010 which has assailed through this writ petition.

2. Learned counsel while challenging the impugned order has contended that the appeal could not be dismissed as time-barred as it was filed during the summer vacations commencing from 01.08.2010 till 31.07.2010. Reliance has been placed on Fazal Karim and another versus Ghulam Jillani and others (1975 SCMR 452), Habib Bank Ltd throuuh Authorized Attorneys versus Messrs Wisdom Education System (Pvt.) Ltd. and 6 others (2009 CLD 1367), Port Muhammad Bin Qasim versus National Insurance Corporation, Karachi and 13 others (1983 CLC 3126), Shah Muhammad and others versus Muhammad Ashraf (1994 CLC 90) and Ikramullah and others versus Said Jamal (1980 SCMR 375). In response, the only submission made by the learned counsel for Respondents No. 2 to 4 is that the question of maintenance cannot be re-opened by the learned Additional District Judge as no suit is pending now in the Family Court as other claims made in the suit have already been decided.

3. After hearing the learned counsel for the parties, I find that the learned Additional District Judge wrongly held that the petitioner’s appeal was lime-barred as it was filed on 21.08.2010 during the currency of the summer vacations in the month of August. It may be stated that in view of section 4 of the Limitation Act, 1908, the petitioner had two options as he could either file his appeal during the summer vacations on any day in August, 2010 or he could file it on 01.09.2010 upon the reopening of the Courts. Thus, the appeal filed by the petitioner during the summer vacations was within time as it could be filed later on 1.9.2010. The aforesaid legal position is supported by the case law cited by the learned counsel for the petitioner. The argument that the suit filed by Respondents No. 2 to 4 has been disposed of with regard to other claims made therein is untenable as the appeal has been wrongly dismissed as time-barred instead of being decided on merits.

4. For the foregoing reasons, this petition is allowed and the impugned order is set aside with a direction to the learned Additional District Judge to decide the appeal on merits. There will no order as to costs.

(Y.A.)  Petition allowed