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