IN THE COURT OF DISTRCT JUDGE, LAHORE

Appeal No. ___________ 2011

Ashraf Masih S/o Rehmat Masih R/o House No. 530-H Farooqia Colony Jahanzib Block Allama Iqbal Town, Lahore.

APPELANT Vs Nazia Bibi W/o Ashraf Masih R/o House No. 30 Najaf Colony Bhekewall, Lahore.

RESPONDENT

APPEAL AGAINST THE JUDJMENT DATED 24.11.2010 PASSED BY ZAFAR IQBAL GUARDIAN JUDGE II LAHORE, UNDER SECTION 55 OF CHRISTIAN DIVORCE ACT 1869 AND ALL OTHER ENABLING SECTIONS OF CPC AND Family COURT ACT .
Respectfully Sheweth:

1. That the brief facts and circumstances leading to the institution of the present appeal are that the respondent failed s suit for recovery of maintenance in accordance with Christian divorce act 1869 against the appellant, in which an order was passed on 27.04.2009 in which the Honorable Court struck of the right of cross examination while the present Appellant was already present in the Court without any proof that evidence witness were present in the Court, Later on a Judgment/Decree was passed on dated 12.05.09 illegally, unlawful by using the power of Section17-A of Family Court act. Thereafter an appeal was filed before learned ADJ which was too dismissed on 1705-2010.Agrived from the judgment appellant filed a Writ petition No 23244/2010 where the Honourable Court Suspended both the Orders.

2. That on 24.11.2010 ZAFAR IQBAL GUARDIAN JUDGE II LAHORE passed passed a Judgment in Which the Honourable Court guaranteed ALIMONY to the respondent No 1 @ 10,000/- per month dated illegal

unlawfully without any jurisdiction and against the law and facts of the case hence liable to set aside on the following

GROUNDS
a) That the honorable Guardian Court had wrongly interpreted the section 36 of Christian Divorce Act 1869. b) That no any petition has never been filed nor served to the appellant during the pendency of suit in witch the respondent demanded the ALIMONY from her husband, while the provision of section 36 of Christian Divorce Act 1869 is very much self explanatory. c) That the while passing the order Court must have to Watch 1. The conduct of the parties. 2. The ability of the husband. 3. Their ages and respective means. 4. The fortune, of the wife. 5. Any other Special circumstances worth consideration. d) That according to the order dated 12-05-2009 the defense of the appellant was struck off regarding the claim of minor plaintiffs, but the defense regarding respondent was remain intact with the appellant. But no opportunity was ever granted to cross examine the respondent, which is totally against the natural justice and equity. e) That before filing this case of Maintenance by the respondent, the appellant had already filed the case of restitution of Conjugal rights which was not pursued after the statement of the respondent that the respondent is not willing to live with the present appellant. f) That the respondent had not produce any documentary evidence about the income of the appellant which were not cross examined that can be believe to be true. g) That in rebuttal the written statement and the evidence which was produced by the appellant in the case of guardian ship before the Court of Zafar Iqbal Guardian Judge NoIII can be considered as the part of the evidence, because it was the only sense of the Superior Courts thats why the cases of same parties of different matrimonial matters are consolidated before the Guardian Courts. But unfortunately the Zafar Iqbal Guardian Judge NoIII did not bother to meet the ends of Justice and fair play.

h) That no any private witness was produced by the respondent to authenticate the evidence to be true and meet the ends of Justice and fair play. i) That on dated 27.04.2009 Appellant was present before the Court of Muhammad Yaseen Mohal at that time no any witness was present in the Court nor any attendance has been marked on record after attendance the counsel of Appellant went to other Courts in his Course of work an emergency call come to him that his father is seriously ill, after that call Counsel of Appellant reached back to his home whereas the appellant also tell the Court that his Counsel is not available because of emergency. But the Court did not bother and passed the order dated 27.04.2009. j) That the appellants Counsels father is died after few weeks of this mater because of this kind of condition appellants Counsel remain up set and did not handle the case properly. k) That keeping in view the rule of Natural Justice and equity Appellant must be given an opportunity to cross examine the witnesses and produce his own evidence that justice could be taken in accordance with law not as a punishment. l) That the present case was filed for the Recovery of Maintenance of her own and minor children under the provisions of Christian divorce act 1869, where as the decision, Judgment/Decree dated 12.05.09 has been passed under family court act. Which is unsustainable in the eye of law? m) That while passing the impugned Judgment dated 12.05.09 learned trial court failed to apply his mind about the provisions of Christian divorce act 1869 which is clear about that only the provisions of C.P.C shell apply. n) That bear reading of the Judgment and Decree passed by the trial Court show that it was passed on presumptions without keeping in view the provisions of Christian divorce act 1869 which is clear about its every aspect. o) That the learned Judge Family Court has acted in hasted and passed the Judgment in away of punishment. p) That the present Judgment decree dated 12.05.09 is passed by lending the powers of Sec 17/A of Family Court act where as the present case was filed under Christian divorce act 1869 while Sec 45 direct the Court that only the provision of civil procedure code shall apply or all the proceedings under this act between party and party shall be regulated by the code of civil procedure. So why the learned Court landed- the power of Sec 17/A of Family Court act where as the procedure is already directed by the Christian divorce act 1869 which

made the impugned Judgment Decree dated 12.05.09 null and void in the eye of law. q) That there is no such provision existed in Civil procedure code where non compliance of interim order a decree can be passed which made the order Judgment dated 12.05.09 null and void in eye of law. r) That the learned trial Court has failed to consider even the written statement and living standard of the appellant and passed Judgment Decree the as a punishment without considering the provision of Christian divorce act 1869. If the order dated 12.05.09 is not declared null and void illegal and unlawful the appellant shall suffer irreparable lass and injury. Which is against Natural Justice and equity?

Prayer
Under the above mentioned facts law and circumstance it is there fore most respectfully prayed that the order Judgment dated 24.11.2010 may kindly be set a side and declared null and void and a single opportunity may kindly be awarded to cross examine the witnesses regarding income of the appellant by remanding the present case in the interest of justice, equity and fair play. Any other relief which the Honorable Court deems fit the appellant is entitled may also be granted to the appellant in the larger interest of Justice and equality.
APPELANT

Through
Sardar Muhammad Masood Iqbal Advocate High Court Siddiqi Law Chambers 48 Lower Mall Lahore

Verification
Verified on oath at Lahore on this __ day of September 2009 that the contents of the above affidavit are correct and true to the best of my knowledge and nothing has been concealed there form

APPELANT

IN THE COURT OF DISTRCT JUDGE, LAHORE

Ashraf Masih.
In re :

Vs

Nazia Bibi

APPEAL AGAINST THE JUDJMENT DATED 24.11.2010 PASSED BY ZAFAR IQBAL GUARDIAN JUDGE II LAHORE, UNDER SECTION 55 OF CHRISTIAN DIVORCE ACT 1869 AND ALL OTHER ENABLING SECTIONS OF CPC AND Family COURT ACT .

PETITION UNDER SECTION 151 CPC FOR SUSPENSION OF THE OPERATION OF JUDGEMETN/DECREE DATED24.11.2010

Respectfully Sheweth:

1. That the Petitioner has filed the above said appeal before this honble court in which no date of hearing has been fixed so far. 2. That the contents of the main application may kindly be read as integral part of this petition. 3. That the petitioner has prima facie good arguable case in this favour and there is very likelihood of its success. 4. That the balance of convenience also lies in favour of the petitioner. 5. That if the operation of the impugned ex-parte judgment/decree dated 24.11.2010 is not suspended and the proceedings of the execution petition are not stayed the petitioner shall suffer an irreparable loss and injury.
Under the above submissions it is therefore most respectfully prayed that the operation of the impugned exparte judgment/decree dated 24.11.2010 may kindly be

suspended and the proceedings of the execution petition may kindly be stayed till the final decision of this appeal.

PETITIONER

through

Sardar Muhammad Masood Iqbal Advocate High Court Siddiqi Law Chambers 48 Lower Mall Lahore.

IN THE COURT OF DISTRCT JUDGE, LAHORE

Ashraf Masih. In re :

Vs

Nazia Bibi

APPEAL AGAINST THE JUDJMENT DATED 24.11.2010 PASSED BY ZAFAR IQBAL GUARDIAN JUDGE II LAHORE, UNDER SECTION 55 OF CHRISTIAN DIVORCE ACT 1869 AND ALL OTHER ENABLING SECTIONS OF CPC AND Family COURT ACT .

APPLICANT U/S 5 OF LIMITATION ACT FOR CONDO NATION OF DELAY IF ANY IN THEFILLING OF THE ABOVE TITLED APPEAL.

Respectfully Sheweth: 1. That the Petitioner has filed the above titled application which is yet to be fixed.
2. That the respondent/decree holder obtained judgment from this

honorable court of on24.11.2010.

BY ZAFAR IQBAL GUARDIAN JUDGE II LAHORE,

3. That the petitioners previous lawyer has not informed any thing about

the judgment, because of the negligent behavior the petitioners previous lawyers the petitioner got no knowledge about the judgment dated 24-11-2010 while the Court of ZAFAR IQBAL GUARDIAN JUDGE II LAHORE has not bother to watch the order dated 12-05-2009 the defense of the appellant was struck off regarding the claim of minor plaintiffs, but the defense regarding respondent was remain intact with the appellant. But no opportunity was ever granted to cross examine the respondent, which is totally against the natural justice and equity. Hence liable to set aside and its subsequent execution proceedings are liable to be stayed. 4. That the applicant/appellant is filing the application legal by in time. That on 13-09-2011 applicant/appellant got information about the decree when the applicant/appellants family member told him about the notices, thereafter the applicant/appellant contacted his previous lawyer but he did not explained any thing about the judgment, then the applicant contacted to the Court there he got information that a decree dated 24.11.2010 has already been passed against the applicant/appellant illegally, unlawfully. That the delay as explained above neither intentional nor deliberate or willful but the same was due to the above reason. The applicant/defendant when it came in to the knowledge appeared without any delay and filed the titled appeal.

5. That in the above circumstance which was beyond the control of the applicant/appellant which were created by the applicant/appellant previous lawyer, so it would be just to condone the delay if any for filing the above titled appeal in the interest justice equity any fair play. 6. That if the delay in the filing of the appeal is not condoned the applicant/ appellant will suffer irreparable loss and injury and his valuable rights shall be infringed. 7. That is always in the interest of justice equity and fair play that the matter in controversy between the parties should be resolved by giving them an adequate opportunity of being heard on merits and findings of the court must be such as to ensure that the justice has no merely been administered but seems to have been done in its true letter and spite.

PETITIONER

through

Sardar Muhammad Masood Iqbal Advocate High Court Siddiqi Law Chambers 48 Lower Mall Lahore

IN THE COURT OF DISTRCT JUDGE, LAHORE

Ashraf Masih. In re :

Vs

Nazia Bibi

APPEAL AGAINST THE JUDJMENT DATED 24.11.2010 PASSED BY ZAFAR IQBAL GUARDIAN JUDGE II LAHORE, UNDER SECTION 55 OF CHRISTIAN DIVORCE ACT 1869 AND ALL OTHER ENABLING SECTIONS OF CPC AND Family COURT ACT .

PETITION UNDER SECTION 151 CPC FOR SUSPENSION OF THE OPERATION OF JUDGEMETN/DECREE DATED 24.11.2010 AFFIDAVIT OF Ashraf Masih S/o Rehmat Masih R/o House No. 530-H Farooqia Colony Jahanzib Block Allama Iqbal Town, Lahore.

I, the above named deponent solemnly affirm and declare as under;

That the Contents of the accompanying petition are correct and true to the best of dependants knowledge and belief and nothing has been concealed there from. Moreover, the deponent has not filed any other petition except the instant petition in any other Court.

Deponent VERIFICATION: Verified on oath at Lahore on this ____ day of _____ 2011 that all the content of above affidavit are correct and true to the best of my knowledge and belief.

Deponent

IN THE COURT OF DISTRCT JUDGE, LAHORE

Ashraf Masih. In re :

Vs

Nazia Bibi

APPEAL AGAINST THE JUDJMENT DATED 24.11.2010 PASSED BY ZAFAR IQBAL GUARDIAN JUDGE II LAHORE, UNDER SECTION 55 OF CHRISTIAN DIVORCE ACT 1869 AND ALL OTHER ENABLING SECTIONS OF CPC AND Family COURT ACT .

APPLICANT U/S 5 OF LIMITATION ACT FOR CONDO NATION OF DELAY IF ANY IN THEFILLING OF THE ABOVE TITLED APPEAL.

AFFIDAVIT OF Ashraf Masih S/o Rehmat Masih R/o House No. 530-H Farooqia Colony Jahanzib Block Allama Iqbal Town, Lahore.

I, the above named deponent solemnly affirm and declare as under;

That the Contents of the accompanying petition are correct and true to the best of dependants knowledge and belief and nothing has been concealed there from. Moreover, the deponent has not filed any other petition except the instant petition in any other Court.

Deponent VERIFICATION: Verified on oath at Lahore on this ____ day of _____ 2011 that all the content of above affidavit are correct and true to the best of my knowledge and belief.

Deponent