Thursday, 31 May 2012

Personal Appearance through special power of attorney

PLJ 2011 SC 262
[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, CJ and Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ.

NAEEM IQBAL and two others--Appellants

versus

NOREEN SALEEM and others--Respondents

Civil Appeal No. 973 of 2006, decided on 28.4.2009.

(On appeal from the order dated 12.4.2006 of the Lahore High Court, Rawalpindi Bench passed in WP No. 1899 of 2004).

Constitution of Pakistan, 1973--

----Art. 185--Appearance through a special attorney--Leave to appeal was granted to examine whether the appearance of appellant through special attorney was illegal--Determination--Validity--Question of--Personal appearance of defendant at the time of filing of written statement--Plaintiff filed the suit and defendant did not appear in person rather filed his written statement through his special attorney who was also his real brother--Additional District Judge passed order against him holding that because the written statement was filed by the real brother of defendant in his capacity as special attorney and it was not filed by the defendant, therefore he did not deserve consideration in the eye of law--High Court confirmed the finding--Held: Observations of lower Courts shall not be maintained and shall not be quoted as precedent in any case in future, nor any party to a suit be non-suited merely for the reason because a plaint/written statement has not been filed by the concerned party in person rather her/his attorney.    [P. 264] A

Mr. Muhammad Ilyas Sheikh, ASC with Appellant No. 2 in person.

Syed Azhar Naveed Shah, ASC with respondent in person.

Date of hearing: 28.4.2009.

Order

Iftikhar Muhammad Chaudhry, CJ.--This appeal has been filed against the order dated 27.4.2006 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 1899 of 2004.

2.  Leave to appeal has been granted on 9.6.2006, inter alia, to examine whether the appearance of the appellant defendant through Special Attorney was illegal.

3.  Respondent Mst. Noreen Saleem filed suit for maintenance of her minor daughter born out of the wedlock of Appellant No. 1 and respondent, as well as; for recovery of dowry articles or in the alternative for value thereof amounting to Rs. 3,17,067/-. Learned Civil Judge dismissed the suit on 12.4.2003 to the extent of recovery of dowry. However, the appeal of the respondent was allowed on 9.6.2004 by the Addl. District Judge. The appellant filed writ petition before the High Court, which was dismissed vide impugned order dated 12.4.2006.

4.  On the last date of hearing, the case was adjourned as the learned counsel wanted to seek instructions from the appellant living out of the country. Today, the learned counsel appeared alongwith Appellant No. 2/brother of the appellant namely, Khalid Mahmood and stated that if respondent takes special oath in support of her above said claim, he undertakes and shall be ready to make the payment of Rs.3,17,067/- as the value of the claimed dowry. However, during course of further submissions, they agreed for the settlement of the dispute in the following terms:--

URDU

5.  In view of the above noted settlement, Khalid Mahmood brother of the appellant is directed to abide by the terms and conditions thereof, failing which his ease shall be dealt with in accordance with the law.

6.  The learned counsel for the appellants stated that the Additional District Judge has taken a very extreme view in respect of personal appearance of the defendant at the time for filing of written statement, though there is no hard and fast rule in this behalf because an attorney appears and acts on behalf of the principal in all civil proceedings unless directed otherwise. He further stated that so long the attorney ie available, he can submit written statement on behalf of the principal before the Family Judge and it would not be illegal nor would amount to contravention of any mandatory provision of the law. It would be appropriate to reproduce herein below the relevant para from the judgment of the Additional District Judge:

"14. Thus, it is evident that for the purpose of filing written statement, the defendant is bound to appear in Family Court himself and his attendance cannot be dispense with. In the present case, the written statement was filed by Khalid Jala, the real brother in his capacity as special attorney of the petitioner, obviously, it was not filed by the defendant/ respondent, therefore, he did not deserve consideration in the eye of law, therefore, this suit remained un-contested. Reliance is placed PLD 2001 Lah. 495."

7.  The above view is also contrary to the earlier view of the learned High Court in the case of Shahida Parveen v. Sher Afzal (2006 MLD 1752).

8.  Now adverting to the above noted development that the parties have since entered into a compromise, therefore, without further dilating upon the point, we direct that the above observations of the Additional District Judge confirmed by the High Court shall not be maintained and shall not be quoted as precedent in any case in future, nor any party to a suit be non-suited merely for the reason because a plaint/written statement as the case may be has not been filed by the concerned party in person rather through her/his attorney.

9.  Khalid Mahmood, brother and attorney for the appellant, has agreed to make the payment of Rs. 3,17,067/- in six equal installments to the respondent commencing from the first of May, 2009. The amount shall be deposited before the fifth of every succeeding month with the Senior Civil Judge/Family Court, Rawalpindi, which shall allow the respondent to withdraw the same. In case of non-payment of two consecutive   installments;   the  Family   Judge  shall  initiate  executing proceedings for effecting the recovery of the balance amount in lump sum.

10.  For the foregoing reasons, the appeal stands disposed of with no order as to costs.

(R.A.)  Appeal disposed of.


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