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2011 S C M R 374
[Supreme Court of Pakistan]
Present: Javed Iqbal and Jawwad S. Khawaja, JJ
MUHAMMAD ARIF---Petitioner
Versus
UZMA AFZAL and others---Respondents
Civil Petition No. 2492-L of 2009. decided on 8th November, 2010.
(On appeal from the order dated 3-11-2009 passed by the Lahore High Court, Lahore in Writ Petition No.
11836 of 2009).
West Pakistan Family Courts Act (XXXV of 1964)-----Ss. 5 & 17-A---Constitution of Pakistan, Art. 185(3)---Maintenance, fixation of---Striking off defence--Father of minor son was aggrieved of the maintenance fixed by Family Court---Validity---Interim
maintenance of minor was fixed due to failure of father who did not turn up and besides that interim order
was not complied with---Family Court had rightly struck off defence of father of minor, pursuant to
provisions as enumerated in S. 17-A of West Pakistan Family Courts Act, 1964---Suit to the extent of
maintenance allowance was rightly decreed by Trial Court, determination whereof had been upheld by
Lower Appellate Court---Suit filed by mother of minor had been decided in accordance with law and no
misreading or non-reading could be pointed out in evidence which had come on record and besides that no
jurisdictional defect could be mentioned---High Court after having gone through all pros and cons of the
controversy had decided constitutional petition in comprehensive manner---Judgment passed by High
Court was well based and did not warrant interference by Supreme Court---Leave to appeal was refused.
Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Khan Gul v. District Judge PLD 1990 Lah. 263; Syed
Shah v. Political Agent Bajaur Agency PLD 1981 Pesh. 57; Muhammad Asif v. Province of Sindh 1990 MLD
2192; Wali Muhammad v. Sakhi Muhammad PLD 1974 SC 106; Saleh Shah v. Custodian of Evacuee
Property 1971 SCMR 543; Ahmad Khan v. Custodian of Evacuee Property PLD 1963 Kar. 450; A.K.M.
Fazlul Quader Chowdhury v. Govt. of Pakistan PLD 1957 Dacca 342; Momin Motor Co. v. R.T.A. Dacca
PLD 1962 Dacca 310; Fazal Elahi v. Shaikh Muhammad PLD 1962(2) W.P.1; Abdul Wahid Khan v.
Custodian of Evacuee Property PLD 1966 Quetta 25; P.G. Braganza v. Border Area Allot. Committee 1984
CLC 1479; Saifullah Khan v. Settlement Commissioner 1982 SCMR 853; Sardar Muhammad v. Deputy
Administrator Rasidual Property 1981 SCMR 738; Ali Muhammad v. Secretary Housg & Phyl. Plang. Deptt.
1984 CLC 2203 and Abdul Wahid Khan v. Custodian of Evacuee Property PLD 1966 Quetta 25 rel.
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court for Petitioner.
Nemo for Respondents.

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Date of hearing: 8th November, 2010.

JUDGMENT
JAVED IQBAL, J.---This petition for leave to appeal is filed against order dated 3-11-2009 whereby writ
petition preferred on behalf of petitioner has been dismissed by the learned single Judge of Lahore High
Court, Lahore in chambers.
2. Ch. Naseer Ahmad Bhutta, learned Advocate Supreme Court entered appearance on behalf of petitioner
and mainly argued that proper opportunity of hearing was not afforded to the petitioner which resulted in
serious miscarriage of justice. It is contended that evidence which has come on record has not been
appreciated in its true perspective causing serious prejudice against the petitioner. It is argued that the
judgment/decree dated 20-1-2009 passed by the learned Judge, Family Court upheld by the learned
Additional District Judge, Faisalabad vide judgment dated 13-5-2009 has not been examined by the learned
High Court and the petitioner has been knocked out on technical grounds which is in violative of the
principles of natural justice.
3. We have examined the above mentioned contentions in the light of relevant provisions of law and record of
the case. We have also perused the order impugned carefully. The petitioner has invoked the jurisdiction of
High Court under Article 199 of the Constitution of Islamic Republic of Pakistan by filing a Writ Petition
with the following prayer:-"In the light of above it is therefore respectfully prayed that impugned judgment and decree dated
20-1-2009 passed by learned Judge Family Court Faisalabad on technical grounds after closing the
right of the petitioner/defendant to produce his defense evidence in case titled "Uzma Afzal v.
Muhammad Arif" in the suit for recovery of dowry article's and impugned judgment and decree dated
13-5-2009 passed by learned Additional District Judge Faisalabad may very kindly be declared to be
illegal and without lawful authority having no jurisdiction and may very kindly be set aside with the
direction to remand the case to respondent No.2 to decide the case afresh after recording the evidence
of the petitioner/defendant in accordance with law in the interest of justice.
It is further prayed that in the meanwhile proceedings out of the above mentioned suit may very
kindly be stayed till the disposal of this writ petition in the interest of justice.
Pass any other just or equitable order which this Honourable Court may deem fit and appropriate in
the interest of justice".
4. The above mentioned Writ Petition was dismissed by means of order impugned, hence, this petition. The
concurrent findings of fact recorded by the courts below being well based do not call for interference in
exercise of Constitutional jurisdiction as certain controversial questions have been decided on the basis of
evidence which has come on record.
5. There is no cavil to the proposition that the "conduct of petitioner can be taken into consideration in
allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean
in favour of adjudication of causes on merits, appears to be available for invocation only when the person
relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour.
High Court in exercise of writ jurisdiction is bound to proceed on maxim "he who seeks equity must do

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equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief
has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid
of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the
Court with clean hands. He may claim relief only when he himself is not violating provisions of law,
especially of the law under which he is claiming entitlement". Manzoor Hussain v. Zulfiqar Ali 1983 SCMR
137, Khan Gul v. District Judge (PLD 1990 Lah. 263), Syed Shah v. Political Agent Bajaur Agency (PLD
1981 Pesh. 57), Muhammad Asif v. Province of Sindh 1990 MLD 2192, Wali Muhammad v. Sakhi
Muhammad PLD 1974 SC 106, Saleh Shah v. Custodian of Evacuee Property 1971 SCMR 543, Ahmad Khan
v. Custodian of Evacuee Property PLD 1963 Kar. 450, A.K.M. Fazlul Quader Chowdhury v. Govt. of
Pakistan PLD 1957 Dacca 342, Momin Motor Co. v. R.T.A. Dacca PLD 1962 Dacca 310, Fazal Elahi v.
Shaikh Muhammad PLD 1962(2) W.P.1, Abdul Wahid Khan v. Custodian of Evacuee Property PLD 1966
Quetta 25, P.G. Braganza v. Border Area Allot. Committee 1984 CLC 1479). It is well-settled by now that
"who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but
will only be granted if the petitioner can show that his conduct has not been such as to disentitle him of such
a relief. This jurisdiction of the High Court should not be exercised if it leads ultimately to a patent injustice.
The Court refused to issue a writ where the conduct of the petitioner from the outset had been rather dubious
and shady. "(Syed Shah v. Political Agent Bajaur Agency PLD 1981 Pesh. 57, Saifullah Khan v. Settlement
Commissioner 1982 SCMR 853, Sardar Muhammad v. Deputy Administrator Residual Property 1981 SCMR
738, Ali Muhammad v. Secretary Housg 86 Phyl. Plang Deptt. 1984 CLC 2203, Abdul Wahid Khan v.
Custodian of Evacuee Property PLD 1966 Quetta 25). We have not been persuaded to agree with the prime
contention of the learned Advocate Supreme Court on behalf of petitioner that proper opportunity of hearing
was not afforded to the petitioner for the reason that the interim maintenance of minor was fixed due to
failure of petitioner who did not turn up and besides that the interim order was not complied with. The Court
has rightly struck off his defence by means of order dated 14-1-2009 pursuant to the provisions as
enumerated in section 17-A of the Family Courts Act, 1964 and the suit to the extent of maintenance
allowance has rightly been decreed by the learned trial Court, determination whereof has been upheld by the
learned appellate court. The petitioner has failed to appear before the court on due date and did not comply
with the interim order passed whereby the maintenance for respondent was fixed and subsequently remained
absent on 14-1-2009 as mentioned hereinabove. It is worth mentioning that a last and final opportunity of
hearing was afforded subject to payment of Rs. 300 as cost and matter was adjourned to 20-1-2009 but the
petitioner remained absent. The learned advocate for the petitioner was also not present hence no option was
available for the learned trial Court to have passed order in absence of the petitioner who failed to appear
without any reasonable justification. In fact a futile attempt appears to have been made to get the matter
lingered on which cannot be appreciated. The suit filed by respondent has been decided in accordance with
law and no misreading or non-reading could be pointed out in the evidence which has come on record and
besides that no jurisdictional defect could be mentioned. Learned High Court after having gone through all
the pros and cons of the controversy has decided Constitutional petition in a comprehensive manner vide
judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:-"The respondent No.1 along with Talahal (minor son of the parties) filed a suit against the petitioner
for the dissolution of marriage, recovery of dowry articles and maintenance allowance. In the case,
interim maintenance of the minor was fixed; the petitioner failed to appear and comply with the order,
thus vide order dated 14-1-2009 his defence was struck off in terms of section 17-A of the Family
Courts Act, 1964 and the suit to the extent of the maintenance allowance was decreed; however, to the
extent of the dowry articles, on the framing of the issues and in the course of trial, absolute last
opportunity subject to payment of Rs.300 was given to the petitioner for the production of his
evidence and the matter was adjourned to 20-1-2009, on which date, neither the petitioner nor his
counsel appeared, therefore, he was proceeded ex parte. It seems from the record that the suit to the

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extent of dissolution of marriage was also allowed, but separately. Be that as it may, through the
judgment and decree dated 20-1-2009, the learned Family Court granted the decree for the recovery of
dowry articles in the following manner:
"In view of my findings on above said issues, suit of the plaintiff to the extent of dowry articles is
hereby decreed in her favour and against the defendant. Plaintiff is entitled to get dowry articles as per
list Exh.P.1 except cash amount of Rs.80,000 amount of cheque Rs.5,25,000 and shaving box. In case
of non-availability of dowry articles she would be entitled to get their price to the tune of
Rs.500,000".
The appeal of the petitioner has also failed on 13-5-2009.
2. The learned counsel for the petitioner has argued that the defence of the petitioner was wrongly
struck off by the learned Family Court and, therefore, he has been condemned unheard. I am afraid
that the petitioner had ample opportunity to do the needful, but he failed resultantly, the decree was
passed against him. I am not convinced that the impugned judgments and decrees are based upon any
misreading or non-reading of the evidence calling for interference in the constitutional jurisdiction.
The writ petition thus, has no merits and is hereby dismissed."
6. The upshot of the above discussion is that the order impugned being well based does not warrant
interference. The petition being devoid of merit is dismissed and leave refused.
M.H./M-4/SC

Petition dismissed.

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