-Defendant-husband living abroad submitted wakalatnama and written statement without his signatures-

 

Citation Name: 2019 MLD 401

PESHAWAR-HIGH-COURTBookmark this Case
IQBAL RABBANI VS NOOR UL AIN

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---Representation through counsel/attorney---Scope---Defendant-husband living abroad submitted wakalatnama and written statement without his signatures---Striking of defence---Scope---Personal appearance of a party before Family Court---Pardanasheen lady---Appearance 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 written 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 appearance 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 order 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 before 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 before 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 appointed a 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 jurisdiction to strike off the defence---Written statement was signed by one of the defendants 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 statement 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 signatures 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 defect 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.