' FAZAL-E-MIRAN CHAUHAN, J.---By filing the suit for maintenance on 29-2-2002, the petitioners/respondents claimed past and future maintenance at the rate of Rs,50,000 per month for both mother and minor daughter. Notice to Respondent No,1/defendant was issued through ordinary mode of service provided in the Family laws and also substituted service, Respondent No,1 and his mother Mst. Kaneez Bibi did not appear and were proceeded ex parte and ex parte evidence was recorded by the learned Judge Family Court, who proceeded to pass ex parte decree in favour of the petitioners and against Respondent No,1 vide judgment, dated 19-7-2002 and fixed the maintenance of thepetitioners at the rate of Rs,5000 per month, up to the time, when they are legally debarred from receiving it.
2. Having come to know about the ex parte decree, a petition for setting aside ex parte decree was filed by Respondent No,1 Sher Afzal, through special attorney Sikandar Hayat son of Haider Ali, which was allowed by the learned Judge Family Court, vide his order, dated 6-3-2004 and ex parte decree was set aside and the suit for maintenance was ordered to be decided afresh on merits.
' On 26-3-2004, written statement was filed by the attorney on behalf of Respondent No,1 and name of Mst. Kaneez Bibi , mother of Respondent No,1, was deleted on the same date, by the learned Judge Family Court, on the request of the petitioners and vide order of even date, interim maintenance of minor-Petitioner No,2 was fixed at the rate of Rs'.1000 per month and Respondent No,1/defendant was directed to pay the same till the disposal of the suit.
' On 8-4-2004, interim maintenance of Rs,1000 was deposited by the attorney of Respondent No,1/defendant Sher Afzal. On the same day, an application was filed by the petitioners with a prayer that Respondent No,1 /defendant has not appeared in person as required under section 9 of the West Pakistan Family Laws Act, 1964. The written-statement was filed by the attorney and is not signed by Respondent No,1/defendant, whereas, under the law, Respondent No,1 was required to appear in person and file written-statement with his own signatures. Reply to the same was filed by Respondent No,1 through his attorney. The learned Judge Family Court, vide order, dated 18-6-2004, replying on PLD 2001 Lahore 495, proceeded to hold that where written-statement was filed through attorney, it did not deserve consideration. As per section 9 of the Family Courts Act, 1964, as amended, vide amending Ordinance No,LV of 2002, dated 1-10-2002, it is required that the defendant shall file his written statement and shall appear before the Court, thus, presence of the defendant to file written statement was necessary and declared that written statement filed through attorney has no value and in future it will not be considered and shall be deemed uncontested. The learned Judge Family Court proceeded to decree the suit on 1-2-2005.
3. Being aggrieved, Respondent No,1 filed an appeal before the learned Additional District Judge, Khairan, who vide judgment, dated 5-7-2005, accepted the appeal of Respondent No,1, set aside the judgment and decree of the Judge Family Court and remanded the case to the trial Court to decide the same on merits, after allowing Respondent No,1/defendant to join the proceedings, who had returned Pakistan and is present in Court.
4. The petitioners, being aggrieved of the impugned judgment, dated 5-7-2005, have filed this constitutional petition.
5. It is contended by learned counsel for the petitioners that as per amended section 9 of West Pakistan Family Courts Act, 1964, personal attendance of the respondent in the suit for maintenance is mandatory and failure to attend the Court for any reason, whatsoever, disentitles him of any defence and the suit shall be deemed as uncontroverted and shall be decreed.
Reliance is placed on PLD 2001 Lahore 495.
6. Conversely, learned counsel for Respondent No,1 contends that the order passed by the learned lower Appellate Court relying on the law laid down by the Hon'ble Supreme Court of Pakistan in 1981 SCMR 395. The provision of Family Court does not take away the right of the counsel to appear on behalf of his client in the proceedings under this Act. Under section 18 of the Family Courts Act, a Pardanashin lady acts through her agent and a Court allows an agent to represent a Pardanashin lady does not, in any manner, takes away the right of a counsel to appear and act on behalf of his client. Such a right is recognized by section 22 of the Legal Practioners Bar Councils Act.
7. I have heard the learned counsel for the parties, perused the proceedings of the Family Court and the law cited on the subject. As discussed above, the suit filed by petitioner No,1 was decreed ex parte on 19-7-2002, as Respondent No,1 failed to Appear despite service, however, an application for setting aside the ex parte decree was filed within a specific time by Respondent No,1 through Mukhtar Sikandar Hayat, duly appointed attorney. Ex parte decree was set aside, observing that Sher Afzal was not served as he was residing in U.S.A., whereas, his mother was served. The suit was restored to its original number and attorney was directed to file written statement. No order for appearance, of Respondent No,1 was passed. The learned Judge Family Court, on the application of the petitioners, without affording an opportunity trRespondent No,1 to appear in person, and file his written statement, proceeded to reject the written statement and decreed the suit holding the same to be uncontroverted.
8, In similar situation is in the case of Khalid Mehmood v. Razi Abbas Bokhari, Judge Family Court and another PLD 1979 Lah. 217 and Mst. Saeeda v. Lal Badshah (1981 SCMR 395) wherein it was held that personal attendance of parties in Court was not indispensable and a party could be represented by an agent. The provisions of section 18 enables the Court to permit an authorized agent to represent a Pardahashin lady does not, in any manner, take away the rights of a counsel to appear and act on behalf of his client. The view taken in PLD 1979 Lah. 217 was approved by the Hon'ble Supreme Court of Pakistan recognizing the right of an agent to appear on behalf of the respondent under section 18 of the West Pakistan Family Courts Act, 1964 and section 22 of the 'Legal Practitioners and Bar Councils Act, 1973.
9. In this case, ex parte decree was passed against Respondent No,1 on 19-7-2002. Having come to know of the same on 28-5-2003, an application for setting aside the ex parte decree was filed by Respondent No,1 through his attorney, which was allowed and the agent was directed to file written statement; same was filed without delay. It was further observed that, at the time of remand of case, Respondent No,1 was present in the Court. The learned lower Appellate Court directed the trial Court to allow the respondent to file written statement and decide the suit on merits, in the interest of justice. The suit for maintenance was filed on 29-4-2002 and amendment in the Act was made by amending Ordinance No,LV of 2002, dated 1-10-2002, not to be applied with retrospective in the pendency of the suit.
10. Be that as it may, keeping in view the dictum laid down in 1981 SCMR 395, the respondent cannot be deprived his right to defend the suit through his attorney. The impugned judgment passed by the learned lower Appellate Court is not illegal in the eye of law, but, is based on the principle of nature justice. Respondent No,1, who had come back from U.S.A. Shall be provided one opportunity to defend this case. This writ petition, being devoid of any force, is dismissed.