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IQBAL RABBANI VS NOOR UL AIN, 2019 MLD-PESHAWAR-HIGH-
COURT 401 (2017)
Dec. 5, 2017 PESHAWAR HIGH COURT 2019 MLD 401
2019 MLD-PESHAWAR-HIGH-COURT 401
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IQBAL RABBANI VS NOOR UL AIN
2019 M L D 401
[Peshawar (Abbotabad Bench)]
Before Syed Arshad Ali, J
IQBAL RABBANI and 3 others---Petitioners
Versus
NOOR UL AIN and 2 others---Respondents
W.P. No.1144-A of 2017, decided on 05/12/2017.
(a) Family Courts Act (XXXV of 1964)---
---Ss. 5, Sched, 7, 9, 17-A & 18---Family Courts Rules, 1965, R. 4---Civil Procedure
Code (V of 1908), S. 132 & O. VI, R. 15---Suit for recovery of maintenance allowance,
dower and dowry articles---Appearance of parties in person---Scope---Representa‐
tion through counsel/attorney---Scope---Defendant-husband living abroad submitted
wakalatnama and written statement without his signatures---Striking of defence---
Scope---Personalappearanceofaparty beforeFamilyCourt---Pardanasheen lady---Ap‐
pearance through agent---Exemption from personal appearance---Appointment of a
counsel---Authority of agent---Irregularity in the wakalatnama---Effect---Wife filed
suit against her husband who lived abroad and his father---Wakalatnama and writ‐
ten statement signed by the father of husband were filed but without signatures of
defendant-husband---Family Court struck-off defence of defendant-husband---
Validity---Suit with regard to family matters could be filed before Family Court by
presentation of a plaint---Court on presentation of plaint was to fix a date for ap‐
pearance of defendant issue summons for appearance on the date fixed therein---If
defendant received summon then he should appear before the Family Court and file
written statement with list of witnesses---Pardanasheen lady/party to a family suit
might be permitted to be represented by a duly authorized agent---Defendant was
not bound to appear in person before Family Court---Right to be represented
through counsel was a statutory right---Any person who was of the age of majority
and was of sound mind might employ an agent through an express or implied
authority---Said agent could perform every lawful action which was necessary in or‐
der to do such act---When a party was not required to personally appear then he
could be represented through attorney or counsel---Appearance of the parties be‐
fore the Court would include appearance through duly constituted attorney---Court
had to confirm genuineness of pleadings/presentations and consent of parties to be
represented having not been obtained by way of force, fraud or undue influence---
Counsel appointed by a party to the proceedings could represent his/her client be‐
fore the Court---Execution of wakalatnama was the written instrument and proof of
such appointment---If from the record it was clear that party to the proceedings had
appointeda counsel, mere omission of certain particulars in the wakalatnama was
irregularity which would not vitiate the relations between the counsel and client---
Family Court could strike-off defence if order for interim maintenance had not been
complied with and decree the suit---If conduct of defendant was contumacious and
he had willfully disobeyed the lawful order of Family Court then Court had jurisdic‐
tion to strike off the defence---Written statement was signed by one of the defend‐
ants and counsel in the present case---Submission of power of attorney at belated
stage was not fatal---Order for striking-off defence in presence of valid written state‐
ment and that too without notice was unwarranted and not sustainable in the eyes of
law---Non-signing of pleadings as well as wakalatnama were mere irregularity and
said defect could be cured at any stage by allowing the party to put his/her signa‐
tures on the same---If any of the defendants had signed written statement then it
would be deemed as valid written statement before the Court---If there was any de‐
fect in the power of attorney then same could be cured by filing power of attorney
duly attested by the Consulate of Pakistan abroad---Defendant had been restrained
from defending his case through impugned order which was against law; said order
being illegal and final in nature was amenable to the constitutional jurisdiction of
High Court---Defendant could be represented through duly authorized agent---
Wakalatnama should be returned to the counsel for the defendant for resubmitting
the same before the Trial Court---Defendant-husband was allowed to place on file
the power of attorney executed in his favour---Impugned order passed by the Family
Court was set aside---Constitutional petition was allowed in circumstances.
2011 CLC 1836; PLD 1996 SC (AJ&K) 13; 2010 MLD 904; PLD 2001 Lah. 495; PLD 2015
Lah. 612; PLD 2016 Lah. 73 and 2015 MLD265 ref.
Mst. Saeeda v. Lal Badshah 1981 SCMR395; Ghulam Qadir v. Abdul Sattar PLD 1984
SC 12; Liaqat Hayat v. Muhammad Sarwar 1985 SCMR 1386; Muhammad Tabish
Naeem Khan v. Additional District Judge, Lahore 2014 SCMR 1365; 1997 CLC 487;
Mst. Ruqayya Bibi v. Additional District Judge,Khushab PLD 2012 Lah. 408; Shahida
Perveen v. Sher Afzal 2006 MLD 1752;Noreen Rehman v. RajaJaved Akhtar 1997 CLC
142; Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9; Sabir Ali v. Mst. Zubaida Bibi
1993 MLD 321; Ismail and another v. Mst. Razia Begum 1981 SCMR 687; Taj
Muhammad v. Muhammad Azam Sattar 1998 CLC 787 and Muhammad Munshi v.
Rikiya Bibi1990 CLC 301 rel.
(b) Family Courts Act (XXXV of 1964)---
---S. 9---'Appearance'---Meaning stated.
Blacks Law Dictionary IInd Edition; Wikipedia and Oxford Living Dictionary rel.
Malik Shujahat Ali for Petitioner.
Malik Waseem Fazal for Respondents Nos.1 and 2.
Date of hearing: 5th December, 2017.
JUDGMENT
SYED ARSHAD ALI, J.---The petitioners seek the constitutional jurisdiction of this
Court praying that:--
"On acceptance of instant writ petition, the order/judgment dated 11.11.2017 of Re‐
spondent No. 3 may graciously be set aside and the application for submission of
power of attorney and completing signing the Wakalatnama may kindly be accepted
while an application for striking of defence due not filing legal written statement
may kindly be rejected. Any other relief deems fit may also be granted".
2.Brief but essential facts of the case are that respondent namely Noor-ul-Ain filed a
Family Suit bearing No. 93/FC of 2017 against the petitioners for recovery of her
dower, 10 tolas gold ornaments given to her by her husband as gift, recovery of
dowry articles as per list annexed with the plant or Rs. 18,40,380/- as market value
thereof and recovery of maintenance allowance of minor at the rate of Rs. 30,000/-
per month from October, 2014 onwards.
It is averred in the plaint that marriage between the parties was solemnized on
19.09.2012 in lieu of 10 tolas gold ornaments as dower while 10 tolas gold ornaments
were additionally given to her as gift which are still in the possession of defendants.
In the month of October, the plaintiff along with minor was left at the house of her
parents and thereafter on 21st December, 2014 a notice of divorce was sent to her.
The defendants have not only occupied the valuable dowry articles of the plaintiff
but have also failed to provide any maintenance for the minor since October, 2014.
3.In response to the summon issued to defendant/ petitioner regarding the said suit,
on 10.05.2017, Malik Shujahat Ali Advocate filed memo. of appearance on behalf of
all the three defendants and undertook to file wakalatnama on their behalf. The or‐
der sheet dated 10.05.2017 reflects that the said request of the learned counsel was
accepted by the learned trial Court and the case was adjourned to 05.06.2017 for fil‐
ing wakalatnama and written statement. On 05.06.2017, the learned counsel submit‐
ted wakalatnama and the case was adjourned for filing written statement and ulti‐
mately the written statement was filed on behalf of all the three defendants on
19.07.2017. The said written statement was signed by the counsel and Muhammad
Iqbal, defendant No. 2.
4.On 04.10.2017, Malik Shujahat Ali Advocate, through an application, had requested
the learned trial Court to place on file the power of attorney executed by defendant
No. 1 in favour of defendant No. 2 and to fill the wakalatnama by inserting certain
particulars which could not be incorporated in the wakalatnama at the time of its
filing. It is pertinent to mention that defendant No. 1 is out of country and for that
reason he has appointed defendant No. 2 as his attorney through power of attorney
dated 31.10.2017, attested by the Consulate of Pakistan, Bradford, U.K. In view of the
aforesaid position, the plaintiff through an application dated 09.10.2017 requested
the Court for striking of the defence of the defendant as there was no valid written
statement before the Court because neither the wakalatnama contains the signature
of the defendant No. 1 nor the written statement was filed by the defendant No. 1.
The main ground alleged in the application was that (i) there is no power of attorney
on behalf of defendant No. 1 in favour of defendant No. 2, therefore, the written
statement available on record is not on behalf of defendant No. 1. (ii) there is no
wakalatnama on behalf of defendants as the wakalatnama submitted in the Court
neither contains the material particulars i.e. on whose behalf the said wakalatnama
has been filed nor does it contain the signature of Malik Shujahat Ali, Advocate. The
learned trial Court, vide impugned order dated 22.11.2017 dismissed the application
of defendant/petitioner, whereas the application of the plaintiff for striking of the
defence of defendant was accepted.
5.The learned counsel for the petitioner has argued that;-
i.The filing of incomplete wakalatnama was only an irregularity which was curable
and the petitioner/defendant has never denied that Mr. Shujahat Ali, Advocate, was
not appointed as counsel on behalf of defendants, hence, the alleged defect is
curable.
ii.The filing of duly attested power of attorney at subsequent stage by defendant No.
1 in favour of defendant No. 2 has rectified the omission.
iii.The Family Court has no jurisdiction to strike off the defence of the
defendants/petitioners.
iv.The findings of the learned trial Court that memo. of appearance was given by
one counsel and the written statement was signed by another counsel, does not
amount to material irregularity entailing striking of defence. He has relied on 1981
SCMR 395, 2011 CLC 1836, PLD 1996 SC (AJ&K) 13, PLD 1984 SC 12, 1985 SCMR 1386.
6.The learned counsel appearing on behalf of the respondent, while rebutting the
arguments of learned counsel for the petitioner, has raised the following
objections:--
i.That under Section 18 of the West Pakistan Family Court Act, 1964, only the wife
has been facilitated to appear through agent and the husband has to appear
personally. He relied on 2010 MLD 904 and PLD 2001 Lahore 495.
ii.That the Family Court has the jurisdiction to strike off the defence of the defend‐
ants and in this respect has relied on 2014 SCMR 1365.
iii.That the High Court has no jurisdiction to interfere in the interlocutory order,
passed by the Family Court and in this respect has relied on PLD 2015 Lahore 612,
PLD 2016 Lahore 73, 2015 MLD 265.
iv.That the written statement without valid authority on behalf of defendants is inad‐
missible and in absence of valid written statement, the Court had rightly struck off
the defence of the defendant.
v.That the non-filing of proper wakalatnama is fatal to the proceedings.
7.Arguments heard and record perused.
8.From respective arguments of the learned counsel and the available record, the
following points cropped for determination:-
i.Whether West Pakistan Family Court Act, 1964, mandates the personal attendance
of the defendant and that the defendant has no authority to appoint agent(s) to rep‐
resent him and under Section 18 of the West Pakistan Family Court Act, 1984 only
the Parda Nasheen ladies can be represented through agent(s). The husband defend‐
ant can't appoint agent to represent him before the Family Court and in absence of
defendant No. 1, the Court has rightly struck off the defence of the defendants?
ii.Whether the wakalatnama filed on behalf of defendant, which does not contain
the signature of the learned counsel, can be rectified?
iii.Whether the Family Court has the jurisdiction to strike off the defence of the
defendants?
iv.Whether the written statement, which only contains the signatures of defendant
No. 2 and the learned counsel representing him, can be construed to have been filed
on behalf of all the defendants, when at the time of filing written statement, admit‐
tedly defendant No. 2 had no written authority on behalf of defendant No. 1, who
was admittedly abroad. Similarly, the learned counsel signing the written statement
had also no power of attorney on behalf of defendant No. 1?
v.Whether the order impugned, which is interim in nature, is amenable to the juris‐
diction of this Court?
9.For the sake of convenience, this Court will render findings on all the questions
separately.
The procedure before the Family Court is regulated through West Pakistan Family
Court Act, 1964 (hereafter referred to as "Act") and West Pakistan Family Court Rule,
1965 (hereafter referred to as "Rules"). Suits relating to the family matters can be
filed before the Family Court by presentation of a plaint as envisaged under Section
7 of the Act read with Rule 4 of the Rules. On presentation of the plaint, the Court
shall fix a date for the appearance of the defendant and in this regard shall issue
summons to the defendant to appear on the date specified therein. The mandate of
Section 9 of the Act is that if defendant receives the summon then he shall appear
before the Family Court and shall file the written statement along with a list of
witnesses. On his failure to appear, the Court may proceed ex parte against the
defendant. The Section 9 reads as:--
"9. Written statement. 1) On the date fixed under clause (a) of subsection (1) of sec‐
tion 8, the plaintiff and the defendant shall appear before the Family Court and the
defendant shall file his written statement, and attach therewith a list of his wit‐
nesses along with a precise of the evidence that each witness is expected to give.
1a)A defendant husband may, where no earlier suit for restitution of conjugal rights
is pending, claim for a decree of restitution of conjugal rights in his written state‐
ment to a suit for dissolution of marriage or maintenance, which shall be deemed as
a plaint and no separate suit shall lie for it.
1b)A defendant wife may, in the written statement to a suit for restitution of con‐
jugal rights, make a claim for dissolution of marriage including Khula which shall be
deemed as a plaint and no separate suit shall lie for it.-
Provided that the proviso to subsection (4) of section 10 shall apply where the de‐
cree for dissolution of Marriage is to be passed on the ground of Khula.
2)Where a defendant relies upon a document in his possession or power, he shall
produce it or a copy thereof in the Court along with the written statement.
3)Where he relies on any other document not in his possession or power as evid‐
ence in support of his written statement, he shall enter such documents in a list to
be appended to the written statement. 3[giving reasons of relevancy of these docu‐
ments to the defence in the written statement].
4)Copies of the written statement, list of witnesses and precise of evidence referred
to in subsection (1) and the documents referred to in subsection (2) shall he given to
the plaintiff, his agent or advocate present in the Court.
5)If the defendant fails to appear on the date fixed by the Family Court for his ap‐
pearance then:--
a)if it is proved that the summons or notice was duly served on the defendant, the
Family Court may proceed ex parte:
Provided that where the Family Court has adjourned the hearing of the suit ex parte,
and the defendant at or before such hearing appears and assigns good cause for his
previous non-appearance, he may, upon such terms as the Family Court directs, be
heard in answer to the suit as if he had appeared on the day fixed for his
appearance; and
b)if it is not proved that the defendant was duly served as provided in subsection (4)
of section 8, the Family Court shall issue fresh summons and notice to the defend‐
ant and cause the same to be served in the manner provided in clauses (b) and (c) of
subsection (1) of section 8.
6)In any case in which a decree is passed ex parte against a defendant under his Act,
he may apply within 4[thirty days of the service of notice under subsection (7) of the
passing of the decree] to the Family Court by which the decree was passed for an or‐
der to set it aside, and if he satisfies the Family Court that he was not duly served, or
that he was prevented by any sufficient cause from appearing when the suit was
heard or called for hearing, the Family Court shall, after service of notice on the
plaintiff, on such terms as to cost as it deems fit, make an order for setting aside the
decree as against him and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as
against such defendant only it may be set aside against all or any of the other de‐
fendant also.
7) The notice passing of the ex parte decree referred to in sub-Section (6) shall be
sent to the defendant by the Family court together with a certified copy of the de‐
cree within three days of the passing of the decree, through process server or by re‐
gistered post, acknowledgement due, or through courier service or any other mode
or manner as it may deem fit.
8) Service of notice and it accompaniment in the manner provided in subsection (7)
shall be deemed to be due service of the notice and decree on the defendant."
Whereas, under Section 18 of the Act, Parda Nasheen lady, party to a family suit,
may be permitted to be represented by a duly authorized agent. For better under‐
standing the language of Section 18, the same is reproduced:--
18. Appearance through agents. - If a person required under this Act to appear be‐
fore a Family Court, otherwise than as a witness, is a pardanashin lady, the Family
Court may permit her to be represented by a duly authorized agent.
The perusal of enabling provisions of the Act does not call upon the defendant for
personal appearance before the Court. The words appearance as occurring in Sec‐
tion 9 ibid and personal appearance are not synonymous. According to Blacks Law
Dictionary IInd Edition, appearance means "coming into Court as party to the suit,
whether as plaintiff or defendant. The formal proceedings by which the defendant
submits himself to the jurisdiction of the Court." Similarly, in Wikipedia, the appear‐
ance has been explain as "(from Latin apparere, to appear) is the coming into Court
of either of the parties to a lawsuit, and/or the formal act by which a defendant sub‐
mits himself to the jurisdiction of the Court". Whereas the word 'personal
appearance' has been defined by Oxford Living Dictionary as "the attendance or
presence of an (especially important) individual in person". Needless to mention
that the right to be represented through counsel is a statutory right recognized by
Section 22 of the Legal Practitioners and Bar Councils Act, 1973. Similarly, under
Section 183 of the Contract Act, 1872, any person who is of the age of majority ac‐
cording to law to which he is subject, and who is of sound mind, may employ an
agent through an express or implied authority and under Section 188 of the Contract
Act, 1872, agent having an authority to do an act has authority to do every lawful ac‐
tion which is necessary in order to do such act. It was held in 1997 CLC 487 that:--
"Although Code of Civil Procedure, 1908 is not applicable in proceedings before the
Supreme Court, yet provision of Section 182 of the Contract Act, 1872 gives to citizen
right to appoint agent to act on his behalf. Attorney would fall within the definition
of agent within the meaning of this Section. Azad Jammu and Kashmir Rules, 1976
do not prohibit appointment of attorney which would mean that such right which is
available under the law of the land would remain unaffected."
Hence, in any proceedings, when the defendant or the party is not required to per‐
sonally appear, he can be represented through attorney and can also be represented
through an advocate.
10.Now moving to Section 18 of the Act. Plain reading of the language of the said Act
would show that it has facilitated a Parda Nasheen lady to be presented by a duly au‐
thorized agent, however, it does not mean that other than a Parda Nasheen lady, the
defendant is required to personal appear before the Court. A similar provision also
appears in the Code of Civil Procedure, 1908, which exempts a woman from per‐
sonal appearance in a court which is Section 132, which reads as under:--
"132. A woman, who according to the customs and manners of the country, ought
not to be compelled to appear in public, shall be exempt from personal appearance
in Court".
Keeping in view the local customs, the legislation has always taken care of the same
and special concession has also been bestowed upon a Parda Nasheen lady from
personal appearance in the Court in all circumstances. However, this would never
lead to an inference that other than female defendants, the male defendants are re‐
quired to appear personally. In Mst. Saeeda v. Lal Badshah (1981 SCMR 395), the au‐
gust Supreme Court has held:--
A similar contention was raised in the case of Khalid Mahmood Syed v. Razi Abbas
Bokhari, Judge, Family Court, Lahore and another (PLD 1979 Lah. 217), wherein it
was held that the personal attendance of the parties in Court was not indispensable
and a party could be represented by an agent/counsel. In this connection it was ob‐
served that the provisions of Section 18 which enable the court to permit an author‐
ized agent to represent a pardanashin lady does not in any manner take away the
right of a counsel to appear and act for and on behalf of his client. Such a right is re‐
cognized by Section 22 of the Legal Practitioners and Bar Councils Act, 1973 and it is
by virtue of that provision that he is "entitled to appear or act" for his client. We are
inclined to agree with the view taken in the aforesaid judgment.
The same view has been followed by the hon'ble Lahore High Court in Mst. Ruqayya
Bibi v. Additional District Judge,Khushab, (PLD 2012 Lahore 408), Shahida Perveen v.
Sher Afzal, (2006 MLD 1752 [Lahore]), Noreen Rehman v. RajaJaved Akhtar (1997
CLC 142).
11.No-where does the Act or the Rules call upon the defendant for personal appear‐
ance before the Family Court and appearance of the parties would obviously include
appearance through duly constituted attorney. In cases where the parties are repres‐
ented through agent, the paramount thing which is to be considered by the Court is
to confirm genuineness of pleadings/presentations and that her/his consent to be
represented has not been obtained by way of force, fraud or undue influence.
ii.Whether the wakalatnama filed on behalf of defendant, which does not contain
the signature of the learned counsel, can be rectified?
Under Section 22 of the Legal Practitioners and Bar Councils Act, 1973, a person ap‐
pointed as counsel by a party to the proceedings can duly represent his/her client
before the Court. Execution of wakalatnama is the written instrument and proof of
such appointment. If from the record, it is clear that the party to the proceedings
had intention of appointing a particular counsel, then mere omission of certain par‐
ticulars in the wakalatnama, at the most, can be held an irregularity and would not
vitiate the relations between the counsel and client. In Toor Gul v. Mst. Mumtaz
Begum, (PLD 1972 SC 09), the august Supreme Court has held:--
"We find ourselves unable to accept the view taken by the High Court that such an
omission will by itself invalidate the vakalatnama. The rules framed in the Code of
Civil Procedure are rules made for the advancement of justice and they should not,
as far as possible, be allowed to operate so as to defeat the ends of justice. If we were
to accept the highly technical view taken by the High Court in the present case, then
it would result in making it extremely difficult for people living in the interior of the
country to appoint pleaders to represent their cases at the District Headquarters
where Courts are usually situated. These rules are in the nature of enabling provi‐
sions and substantial compliance with them should be enough.
No one has in the present case challenged that the appellant did not wish to engage
Mr. Mahmood Akhtar to represent his case before the Rent Controller, nor has it
been challenged that Mr. Mahmood Akhtar was not willing to accept the appellant's
brief. Indeed, at the appellate stage before the District Judge, an affidavit was actu‐
ally put in by the appellant himself saying that he had sent the power duly thumb
marked to his nephew Sargul with instructions to engage Mr. Mahmood Akhtar, who
has his office almost next door to the place where the appellant carries on business.
It is nowhere provided in rule 4 of Order III of the Code of Civil Procedure that both
the pleader as well as the client must execute the Power of Attorney in each other's
presence. We are unable, therefore, to accept this over-technical view of the High
Court. The Courts below have, in our view, clearly gone wrong in holding that the
appellant was not properly represented by a pleader holding a duly executed Power
of Attorney before the Rent Controller.
In any event we are clearly of the opinion that the Rent Controller was not justified
in the facts and circumstances of the case to proceed exparte without giving any op‐
portunity to the Pleader concerned to remedy defect in the power or to prove that
he had been duly appointed to represent the appellant in this case."
Similarly, in Ghulam Qadir v. Abdul Sattar (PLD 1984 SC 12), it was held:--
"Power of attorney duly executed could not be filed by Advocate-on-Record inad‐
vertently with petition duly signed---Held, failure to file power-of-attorney in
circumstances, no more than irregularity which stood cured by subsequent filing of
same".
In "Liaqat Hayat v. Muhammad Sarwar (1985 SCMR 1386), the august Supreme
Court, while dealing with a situation wherein the wakalatnama attached to the
memorandum of appeal was neither signed nor thumb marked by the appellant, it
was held:--
"We find that in granting the relief to the plaintiff-respondents who were appellants
before the first appellate court certain findings of fact had been recorded and they
formed the basis of the decision. For example, the findings that the appeal had been
filed by Mr. M.A. Rehman under instructions from the appellant and the defect was
only in not properly completion the power-of attorney. On such a finding the de‐
cisions of this Court in Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9; Ghulam
Qadir and others v. Abdul Sattar and others, PLD 1984 SC 12 and Ismail and others v.
Mst. Razia Begum 1981 SCMR 687, would be attracted and justify the treatment af‐
forded by the Letters Patent Bench of the High Court. We do not find any merit in
the petition and leave to appeal is refused."
In Sabir Ali v. Mst. Zubaida Bibi (1993 MLD 321), the hon'ble Lahore High Court has
held that non signing of the plaint as well as wakalatnama was mere irregularity
which defect could be cured at any stage by permitting plaintiff to put signature on
the same. Hence, the wakalatnama in the present case which is deficient in certain
particulars, is curable.
iii.Whether the Family Court has the jurisdiction to strike off the defence?
12.Section 17-A of the Act envisages the striking off the defence in the circum‐
stances when the Family Court passes order for interim maintenance and if the de‐
fendant fails to comply with such order, the Court may strike off the defence of the
defendant and decree the
suit. In no other eventuality does the Act provide for striking off
defence of the defendant. However, if the conduct of defendant is contumacious and
he has willfully disobeyed the lawful order of the Family Court, i.e. for production of
evidence or for filing written statement, then the Family Court has the jurisdiction
to strike off the defence as laid by the august Supreme Court of Pakistan in
Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore, (2014 SCMR
1365) that:--
"Suffice it to say that the Family Court is the quasi-judicial forum, which can draw
and follow its own procedure provided such procedure should not be against the
principle of fair hearing and trial, thus if a defendant of a family matter, who is duly
served; and especially the one who appears and disappears and also does not file his
written statement within the time allowed to him by the Court, the Court shall have
the inherent power and ample power to proceed ex parte against him, to strike off
the defence and to pass an ex parte decree in line with the principles as are enunci‐
ated by the Civil Procedure Code. In any case, such order (striking off defence) can‐
not be said, treated or deemed to be void, which should be ignored as nullity in the
eyes of the law as argued by the learned counsel for the petitioner. If the petitioner
was aggrieved of the order, he should have either got it set aside by filing an applica‐
tion before the Family Court or by challenging the same in appeal, which admittedly
was not so done."
13.However, in the present case, the written statement was signed by one of the de‐
fendants and the counsel, and the submission of power of attorney at belated stage
was not fatal, then there was a valid written statement before the trial Court and as
such in the presence of a valid written statement, the order of striking off of defence
of the defendant, which too without any notice, was unwarranted and not sustain‐
able in the eyes of law.
iv.Whether the written statement which only contain the signature of defendant No.
2 and learned counsel, can be construed to have been filed on behalf of all the
defendants, when at the time of filing written statement, admittedly defendant No. 2
had no written authority on behalf of defendant No. 1, who was admittedly abroad.
Similarly, the learned counsel signing the written statement had also no power of
attorney on behalf of defendant No. 1?
The Act does not provide any mechanism, or procedure nor does it describe the
contents which the wakalatnama shall contain. Section 9 of the Act only envisages
that on the date fixed for the appearance of the defendant, the defendant shall file
his written statement and attach therewith the list of his witnesses along with precis
of the evidence that each witness is expected to give. It is by now settled law that
non-signing of pleadings as well as wakalatnama are mere irregularity and the said
defect can be cured at any stage by allowing the party to put his/her signatures on
the same. In the present case, the written statement has been signed by the father
of the defendant No. 1, who is also one of the defendants in the suit and since the
Act does not call upon all the defendants to sign the written statement, therefore,
guidance can be sought in this regard from the enabling provisions of Code of Civil
Procedure, 1908 Order-VI Rule-15 which envisages that if any of the defendant has
signed the written statement, it will be deemed a valid written statement before the
Court. Even otherwise, if it is assumed that at the time of filing of written statement,
the father of defendant No. 1 had no valid authority i.e. power of attorney, the said
defect is curable and indeed has been cured by filing power of attorney duly at‐
tested by the Consulate of Pakistan, Bradford, U.K.
In Ismail and another v. Mst. Razia Begum (1981 SCMR 687), the august Supreme
Court has held that:--
"In so far as the first contention is concerned it has no force in it. The learned coun‐
sel conceded before us that the respondents had all along prosecuted their suits
with diligence and had appeared as their own witnesses. In these circumstances, the
non-signing of the plaints by them at the proper stage was a mere irregularity, and
consequently the learned District Judge was entirely justified to direct that the said
irregularity may be rectified. Furthermore, the learned counsel has not been able to
show as to how he has been prejudiced, therefore, the objection raised by him is
only technical-the moreso when substantial justice has been done between the
parties."
In Sabir Ali v. Mst. Zubaida Bibi, (1993 MLD 321), the hon'ble Lahore High Court has
held that:--
"the argument that non-signing by the plaintiff of the plaint and Vakalatnama was
not curable defect, has no force. ASI have already observed the respondent in her
application seeking permission to amend the ejectment petitioner to put her signa‐
tures on the same, categorically stated that the ejectment petition had been filed on
her instructions, therefore, she rectified the proceedings already taken and owned
the same as if the same had been initiated and conducted by her."
The same view has been re-affirmed in ShahidaParveen v. Sher Afzal(2006 MLD
1752), Taj Muhammad v. Muhammad Azam Sattar(1998 CLC 787), and Muhammad
Munshi v. Rikiya Bibi(1990 CLC 301).
v.Whether the order impugned which is interim in nature, is amenable to the juris‐
diction of this Court?
14.The effect of the impugned order whereby the defence of the petitioner has been
struck off is that the defendant has been restrained from defending his case before
the Family Court which, in view of the aforesaid findings, is against the law,
therefore, allowing the parties to conclude the trial and thereafter the same issue to
be agitated before the appellate or constitutional forum, would obviously be against
the interest of both the parties. The order impugned being manifestly illegal and fi‐
nal in nature as for as the cause of defence is concerned, is obviously amenable to
the constitutional jurisdiction of this Court. While summing up the issue, needless
to mention that in our country the superior Courts have always encouraged adjudic‐
ation of disputes on merits as curial law is always framed for regulating the proced‐
ure of the Court and its technical clause cannot be permitted to defeat the substan‐
tial rights of the parties.
15.In view of the above, while setting aside the impugned order dated 11.11.2017,
this Court holds that:--
i.Defendant can be represented through a duly authorized agent.
ii.The Wakalatnama be returned to the learned counsel for the defendant for filling
the same and to resubmit it before the trial Court.
iii.The defendant No. 2 is allowed to place on file the power of attorney executed in
his favour by defendant No. 1 and thus the deficiency in the written statement filed
before the Court stands cured.
iv.The learned Family Court shall provide sufficient opportunity to the parties to
produce their evidence.
ZC/311/PPetition allowe
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