1. ' TANZILUR REHMAN, J.-The facts giving rise to this petition are that the petitioner is a Flight Lieutenant in the Pakistan Air Force. On 4-5-1973, the respondent IV. 3 was married to him. The dower amount settled at the time of marriage was Rs, 25,000, as deferred. The parties for some time lived together. No child was, however, born out of the said wedlock. On 3-7-1977, as alleged by the petitioner, the respondent No, 3 went to the house of her parents on usual visit, but failed to return to the petitioner. On 25-7-1977, she filed a suit against the petitioner for dissolution of marriage in the Family Court No, 3 at Karachi mainly on the ground that the petitioner was "incapable of begetting a child". In that suit a decree for payment of deferred dower was also prayed. The suit was first fixed for 31-7-1977, but the summons could only be served on the 'petitioner on 31-7-1977, at 11 a.m. However, the petitioner attended the Court on 31-7-1977, but by that time, the suit was already posted to 7-8-1977, for fresh summons to the petitioner. The petitioner was again served on 1-8-1977 for 7-8-1977. He and his counsel both appeared in Court on 7-8-1977. The suit was, however, adjourned by consent to 25-8-1977, for filing written statement by the petitioner in the said suit. The suit was again adjourned on the request of the petitioner to 5-9- 1977 the matter was again adjourned by consent to 7-9-1977 for filing written statement by the petitioner. On 7-9-1977 the counsel for the petitioner appeared before the Court and submitted an application for extention of time for filing written statement on the ground that the petitioner had gone to China on official duty, and that the written statement had been sent to him for signature.
2. This application was opposed by the Advocate for respondent No,
3. The learned Family Court after hearing the parties counsel dismissed the said application by his order dated 8-9-1977, holding that the petitioner deliberately avoided to file written statement before his leaving for China, as he must have been aware about the Schedule of his departure. And thus the petitioner was ordered to be proceeded ex parte in the suit. The learned Judge fixed 18-9-1977, for filing ex parte proof by respondent No, 3.
3. ' The petitioner being aggrieved by the said order dated 8-9-1977 filed an appeal before the learned Additional District Judge, Karachi, which, however, was dismissed on 13-10-1977. The records and proceedings in the suit were sent back to the learned Family Judge, who on 26-10- 1977, decreed ex parte, the suit for dissolution of marriage of the respondent No, 3 with the petitioner and also decreed the suit for her dower in the sum of Rs, 25,000 as claimed in the suit.
4. ' The petitioner then moved the Family Court by filing on 5-12-1977 an application for setting aside the said ex parte decree passed against him. The said application was found to have been filed beyond 30 days required under rule 13 of the West Pakistan Family Courts Rules, 1965, and as such it was dismissed. The petitioner, thereafter, has filed this Constitution Petition.
5. ' The learned counsel for the petitioner, Mr. Shahenshah Hussain, contended that the petitioner was subject to Soldiers Litigation Act, 1925, and so long as he was outside Pakistan, the proceedings against him ought to have been stayed. In support of his contention, he relied upon section 6 of the Soldiers Litigation Act, IV of 1925, which in order to appreciate his plea is reproduced below :- "(1) If a Collector has certified under section 5, or if the Court has reason to believe, that a soldier who is party to any proceeding pending before it, is unable to appear therein, and if the soldier is not represented by any person duly authorised to appear, plead or act on his behalf the Court shall suspend the proceeding and shall give notice thereof in the prescribed manner to the prescribed authority,"
6. ' Provided that the Court may refrain from suspending the proceeding and issuing the notice if-
(a) the proceeding is a suit, appeal or application instituted or made by any soldier, alone or conjointly with other with the object of enforcing a right of pre-emption, or
(b) the interests of the soldier in the proceeding are, in the opinion of the Court, either identical with those of any other party to the proceeding and adequately represented by such other party or merely of a formal nature.
(2) If it appears to the Court before which any proceeding is pending that a soldier though not a party to the proceeding is materially concerned in the outcome of the proceeding, and that his interests are likely to be prejudiced by his inability to attend, the Court may-suspend the proceeding and shall give notice thereof in the prescribed manner to the prescribed authority."
7. ' His contention is that in view of the provisions of section 6 of the Soldiers Litigation Act, the learned Family Court, ought to have, at least granted an adjournment to the petitioner to enable him to submit his written statement and this was a sufficient cause on 7-9-1977 for adjournment sought for by the Petitioner's counsel but we think that the contention is misconceived inasmuch as section 6 can only be pressed into service, if the Court has reason to believe that a soldier, who is a party to the proceeding pending before it, is unable to appear therein and further that the soldier is not represented by any person duly authorised to appear, plead or act on his behalf. Admittedly, the petitioner was being defended by an Advocate who was duly authorised to appear, plead or act on his behalf. The learned counsel for the petitioner, however, submitted that the Advocate appearing in the proceedings could not sign the written statement on behalf of the petitioner. In support of his contention, he relied on the case of Abdul Wadood v. The State (1), wherein the words "to appear, plead or act" were judicially examined and it was observed as follows :- "I may, however, point that the words "appearing, applying and acting" had a well defined and well known meaning. To appear for a client in Court is to be present and to represent him in the various stages of the litigation at which it is necessary that the client should be present in Court by himself or by some representative. To act or apply for a client in Court, is to take on his behalf in the Court or in the office of the Court the necessary steps that must be taken in the course of the litigation in order that the case may be properly laid before the Court. Thus "acting" includes applying; so that a Pleader who makes an application on behalf of a litigant, acts for him but he cannot do so unless he is authorised in writing under rule 4 of Order III, of the Code of Civil Procedure. The word "appearance" and "act" do not include "pleading"; and a recognised agent, who is entitled to appear and act for a party, is not entitled to a right of audience. The same view has been taken also by a Division Bench of this Court in the case of in the matter of Jogesh Chandra Mukherjee, PLD 1953 Dacca 104. It has thus been laid down therein that "a recognised agent can make an appearance or an application or act on behalf of a party but cannot plead in a Court and that under rule 4 of Order III of the Code of Civil Procedure he can appoint a Pleader but he has no right of audience."
(1) PLD 1964 Dacca 543 ' The learned counsel also relied on the case of Ameena Bat v. Abbas and others (1), of the earstwhile High Court of West Pakistan, Karachi Bench. In this case the word "act" was judicially defined as including all steps which the pleader is expected to take in proper conduct of the case.
8. These submissions of the learned counsel necessitate the comparison of the relevant words used in Order III, rule 1 of Civil Procedure Code, 1908 and section 6 of the Soldiers Litigation Act, 1925. The relevant rule 1 of Order III, C. P. C. Is as follows:- "Any appearance, application or act in or to any Court, required or authoriszed by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being inforce, be made or done by the party in person, or by his recognized agent, or by a Pleader appearing, applying or acting, as the case may be, on his behalf: ' Provided that any such appearance shall, if the Court so directs, be made by the party in person."
9. ' Upon the examination of the two provisions referred to above it is apparent that the words "to plead" are missing in the case of an authorized agent, whereas in the case of person contemplated by section 6, aforesaid, the word "Plead" is there. We are, therefore, of the view that t person contemplated in section 6 is an 'Advocate' because in case of a authorised agent the word "pleading" (before the Court) does no appear, as he is not empowered before the Court to plead, meaning thereby that he has no right of audience. These rulings therefore are or little help to the petitioner, as in this case, the petitioner was represented by an Advocate who was duly authorised in law to appear, plead and act on his behalf. The power of an Advocate, of the course, does not mean or include the power to sign a plaint or written statement by him for and on behalf of his client. Be that as it may be the requirement of law, as provided in section 6 of Act IV of 1925 is that there should be a person a who is duly authorised to appear, plead, or act on behalf of a soldier, who is a party to any proceeding pending before the Court, and the fact remains that the petitioner was duly represented by an Advocate, clothed with the power of appearing, pleading or acting on his behalf and as such we do not find any force in this contention. We are supported in this view of the matter by a ruling in the case of M. Fakhrullah Khan v. Baldo Sahi and others (2), which, though against the petitioner, but in all fairness to his duty as a counsel, was also cited by Mr. Shahanchah Hussain wherein Stuart, J. Observed as follows :- "The appellant was certainly an Indian Soldier, serving under war conditions, but he was not a soldier who was not represented in the proceedings by a person duly authorised to appear, plead or act on his behalf. His pleader never threw up his brief; he refused to produce evidence and continued to attend the case. As the plaintiff was properly represented, the Court was under no obligation to give notice in the prescribed manner to the prescribed authority under Act XII of 1915 and the Court's procedure was perfectly regular and correct."
10. ' The learned counsel for the petitioner contended, alternatively, that the learned Family Judge, ought to have granted him ninety days time
(1) PLD 1958. Kar. 458 (2) AIR. 1923 All. 185 from the date of service of summons on him for filing written statement. In this respect, he relied on Order VIII, rule 1 of the Civil Procedure Code, 1908. The contention is again misconceived. The provisions of Civil Procedure Code, 1908 have been excluded in their application to proceedings under the Family Courts Act, except sections 10 and 11, Cr. P. C. By section 17 of the Family Courts Act, 1964, and further, sections 8 and 9 of the Family Courts Act, 1964, themselves lay down the rule for filing written statement, which read as under:- "8.-When a plaint is presented to a Family Court, it-
(a) may fix a date ordinarily of not more than thirty days for the appearance of the defendant;
(b) shall issue summons to the defendant to appear on a date specified therein;
(c) shall, within three days of the presentation of the plaint, send- () to each defendant, by registered post, acknowledgment due, a notice of the suit, together with a copy of the plaint, a copy of the schedule referred to in subsection (2) of section 7 and copies of the documents and a list of documents referred to in subsection (3) of the said section; and ..
11. 9.-(1) On the date fixed under clause (a) of subsection (10) of section (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 witnesses alongwith a precise of the evidence that each witness is expected to give. . ."
12. ' This section calls upon the defendant to file his written statement on the first day of his appearance in the Court, which in this case was fixed for 7-8-1979. The petitioner failed to file his written statement even within the time extended till one month from the date of presenting the plaint i,e, 25-8-1979 and further upto 7-9-1979. The sole purpose being the expeditious disposal of the family matters, to lessen the agonies of distressed people in the sphere of family relations the law laid down in the section referred to above is very specific and calls for its compliance by the party concerned. The learned Family Judge has acted within the spirit of the statute by not granting any further time to the defendant for filing written statement, and no exception can be taken before us to his exercise of discretion in our Constitutional jurisdiction.
13. ' The learned counsel for the petitioner further contended that the learned Additional District Judge, while dismissing his appeal against the order for ex parte proceedings against the petitioner, by his order dated 13-10-1977 did not fix any date in the case for appearance in the Court below as, notwithstanding the dismissal of his appeal or an order for ex parte proceedings in the Court, petitioner's Advocate could appear in the Court below. And as such his client was prejudiced by having no notice of further proceeding in the suit. This contention too is misconceived. No law was shown to us whereby it was obligatory on the part of the learned Family Judge to issue a fresh notice to the petitioner's Advocate, on receiving back the record and proceedings of the suit from the Appellate Court, for a date for further proceeding, even if he was already ordered ex parte. It was however, the duty of the petitioner, himself to follow the proceedings.
14. ' The last contention which the learned counsel for the petitioner strenuously urged was that the decree was illegal in so far as it pertained to dower, inasmuch as the decree for dower could only follow the dissolution of marriage but could not have been passed simultaneously with it.
15. Elaborating this contention, he ,submitted that the learned Family Judge who passed the decree for deferred dower had no jurisdiction to entertain the claim for deferred dower alongwith the claim for dissolution of marriage, as the deferred dower was payable only on the dissolution of marriage. The position of law as to the time of payment of prompt and deferred dower is very much clear under the Muslim Law. The prompt dower is that which is promptly paid at the time of marriage contract or is payable promptly on demand, whereas the deferred dower is that which is payable on dissolution of marriage by death of either party or divorce. A Code of Muslim Personal Law. Karachi, 1978, Vol. I, section 63, p. 22; Principles of Muhammadan Law by Mulla, XIV Edition, Article 290). But, nevertheless it cannot be legitimately said that a suit claiming dissolution of marriage and consequent thereon the claim for payment of deferred dower was not maintainable at all and the decree for the payment of deferred dower passed by the Court, consequent upon the passing of a decree for dissolution of marriage, was passed without lawful authority, as to attract the provisions of Article 199 of the Constitution of Pakistan, 1973.
16. ' The most pertinent question, therefore, is whether it is the right to institute a claim for deferred dower which accrues on and after the dissolution of marriage or is it the right to get a decree for the deferred dower on and after the decree is passed for dissolution of marriage. There is certainly a distinction between the two incidents, viz. The institution of a suit whereby a certain right is claimed and to have ultimately the said right decreed. Dower (Mehar) is that financial gain which the wife is entitled to receive from her husband by virtue of the marriage contract itself whether named or not in the contract of marriage, in which case proper dower (Mahr Mithl) becomes D due. The dower, therefore, is a right which comes into existence with the marriage contract itself except that in case the dower is deferred its enforcement is held in abeyance till a certain event, i,e, dissolution of marriage by death or divorce, occurs.
17. ' In our view, therefore, the respondent No, 3 could claim deferred dower but was not entitled to a decree for the deferred down unless and until a decree for dissolution of marriage was passed in her favour by competent Court. In this case, it is apparent that relief of the dissolution of marriage of respondent No, 3 with the petitioner was granted first and then the relief for deferred dower, in consequences of the dissolution of marriage, was granted to her. If it is ruled that mere claiming the payment of deferred dower is made dependent on first obtaining a decree for dissolution of marriage, it will cause unnecessary hardships to the women-folk, besides that it will involve multiplicity of proceedings. It is, therefore, also in the interest of avoiding multipilicity of proceedings and in the interest of justice that the claim for dissolution of marriage, and the claim for payment of deferred dower, consequent upon the grant of decree fort dissolution of marriage, may be entertained simultaneously by the Family Courts. Of course, the decree for payment of deferred dower, in such a case where two reliefs are claimed in one suit, will always depend on the grant of decree for dissolution of marriage. A decree for payment of deferred dower, consequent upon a decree for dissolution of marriage, in a given case, cannot be challenged much less to say that it is without jurisdiction. An analogy, some what similar to this, can be found in the case of Mat.
18. Ameena Begum and others v. Mehar Ghulam Dastgir (1). In this case an evacuee property was transferred to the respondent on 8th February 1965. On 7-5-1966 he sent the notice required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to the occupants.
19. Afterwards, on 14th November, 1966, he filed the petition under section 13 of the Urban Rent Restriction Ordinance 1959, for their ejectment from the premises on the ground of failure to pay the rent, impairing the value and utility of the rented property and also because the respondent required bona fide for his personal use. The learned Rent Controller, on 5th April, 1972, while rejecting the 'other two grounds granted the petition on the ground that the shop was bona fide required by the respondent for purpose of reconstruction and thus the ejectment was ordered. The two appeals filed by the tenant, as provided in the Urban Rent Restriction Ordinance, 1959, were also dismissed by the Additional District Judge, and the High Court respectively. The contention before the High Court was, raised for the first time by the tenants, that as the tenants under the Displaced Persons (Compensation and Rehabilitation Act), 1958, were entitled to statutory protection against their ejectment for six years, the Rent Controller had ab initio no jurisdiction to proceed with the ejectment petition as filed against them on 14-11-1966, on this last-mentioned ground that the premises in dispute was bona fide required by the Landlord for reconstructing the same. The learned Single Judge of the High Court observed that the property was transferred to the respondent in 1965 and he had served the statutory notice under section 30, and filed the application for their ejectment which was not decided until 1972. In the circumstances, in the opinion of the Judge in Chamber, even if the petitioner (tenants) had any such protection it had ended by efflux of time during the pendency of the proceeding before the Rent Controller, which had lingered on for more than 6 years. The cause of action had thus matured against the petitioner during the pendency of those proceedings and, therefore, the order of ejectment could be passed against them provided the Landlord otherwise had a good case against them on the merits. The Supreme Court, after discussing the case-law on the subject, held at page 230 of the Report as under :- "Therefore, in accordance with these provisions, a tenant who is a defaulter in the payment of the rent due from him is deprived of the protection against his ejectment to which he was entitled under provision (b) of subsection (1) of this section and in accordance with subsection (4) on the loss of this protection ordinary law of the land including the provisions contained in the Urban Rent Restriction Ordinance are attracted and shall come into play to regulate the relations between the parties. This was even conceded by the learned Judge in the Chambers in his Judgment under discussion. However, with due deference to him, in these circumstances, I would like to add that on the two-fold allegations in the ejectment petition that the tenant was a defaulter in the payment of the rent due from him and also because the landlord reasonably and in good faith required the premises for his personal use and occupation, it could not be held that the petition as laid did not disclose any cause of action, or was ab initio incompetent and could not be entertained. Indeed the Rent Controller was bound to hold an enquiry into the merits of these allegations under the Ordinance. In the circumstances it could not be legitimately held that the right to sue on those allegations had accrued to the landlord only after the institution of the ejectment petition against his
(1) PLD 1978 SC 220 tenant. In the light of the law already discussed above, the Rent Controller and the appellate authorities under the Ordinance, in exercise of the discretion vested in them are not precluded to allow any bona fide amendments and take note of subsequent events in order to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings.
20. ' Now reverting to the facts in the instant case before us, to start with the ejectment application was filed by the respondent against the petitioners on the grounds that they had committed default in the payment of rent had impaired the value and utility of the premises and also because he wanted to reconstruct the shop in question. On these allegations, therefore, this application as laid was competent and could be enquired into. During the pendency of this application even the statutory period of protection against the ejectment of the petitioner under proviso (b) to subsection (1) of section 30 had also elapsed and the High Court in exercise of the discretion vested in it found that the shop in dispute was old and dilapidated one. Actually on a complaint the condition of the structure had been declared as dangerous and in that connection Municipal Committee had also launched proceedings against the landlord and the tenants. In the opinion of the High Court there was overwhelming evidence available on the record to arrive at the finding that the landlord reasonably required the premises in good faith for reconstruction and that there was no justification for interference with the concurrent findings of fact recorded by the authorities below in that behalf. In this connection the Court further observed that the ejectment application was filed in the year 1966 and was eventually decided by the Rent Controller after six years in the year 1972. If the case were to commence afresh after the 11 years of his litigation by the 28th of February, 1977, when the impugned order was passed by the High Court, the result on account of the accepted position on the merits of this issue would not be any different."
21. ' Applying the rationale of the Supreme. Court judgment to this case we find that the factum of deferred dower of Rs, 25,000 is admitted by the petitioner himself in para. 1 of his petition before us.
22. He does not dispute the amount. What the learned Judge did in this case was that as soon as he granted the relief of dissolution of marriage, he also granted the consequential relief of dower, which he was bound to decide in accordance with the law as it was applicable at the time when he had decreed the dissolution of marriage ; What else could he then do? We will, therefore, hold that the claim for the payment of deferred dower made by the respondent No, 3 against the petitioner was not ab initio void. It was also not a case of complete ouster of jurisdiction of the Family Court.
23. On the decree having been passed by the learned Family Judge, the right of respondent No, 3 as to the claim of deferred dower laid before him was competent and could be enquired into and decreed in the absence of any denial of the amount of dower as settled at the time of marriage, since the cause of action was mature on his decreeing the suit for dissolution of marriage.
24. ' Apart from this aspect of the matter, the decree for payment of dower exceeding Rs, 1,000 has been made appealable under section 14 of the Family Courts Act, 1964. In this case, the decree was for a sum of Rs, 25,000 towards deferred dower and as such appealable. No ground has been shown in the petition or urged before us by the learned counsel for the petitioner as to why he did not pursue the remedy provided in the statute itself. When we put a question to the learned counsel as to why his client failed to avail the remedy provided in the Family Courts Act, 1964, his only reply was that as the decree itself was passed without jurisdiction his client was not obliged to pursue that remedy by filing an appeal as provided in the statute. This explanation does not validly answer our question inasmuch as we have found that the Family Court in the circumstances of the case, had jurisdiction to decree the claim for the payment of deferred dower consequent upon his decreeing the suit for dissolution of marriage.
25. ' For the foregoing reasons, we do not feel inclined to interfere with the decree passed in favour of respondent No, 3 in our Constitutional jurisdiction. We, therefore, find no merit in the petition and dismiss the same but in the circumstances there will be no order as to costs.