' RAUF AHMAD SHEIKH, J.---At the outset, the learned counsel for the petitioner has stated at the bar that his client assails the impugned judgment and decree only to the extent of dower and has paid the maintenance allowance and returned the articles of dowry under the decree so has no grievance in this regard.
2. The petitioner has assailed the vires of judgment and decree dated 7-4-2010 passed by the learned Additional District Judge, Rawalpindi whereby appeal filed by respondent was partly accepted and findings of learned trial court on issues Nos.1 and 2 were reversed and the suit of the respondent was also decreed to the extent of recovery of Rs.1,00,000 and gold ornaments weighing 10-Tolas as dower.
3. The respondent had contended that her Nikah was solemnized on 23-3-2007 and dower comprising of Rs.1,00,000 and gold ornaments weighing 10-Tolas were fixed at that time. The Rukhsati' took place on 22-3-2008 and on the wedding night, the petitioner/defendant made a request for return of the gold ornaments and cash amount as he had to make arrangements for his travel to a foreign country. She alleged that thereafter he had been making promises to return the dower i.e. Cash amount and gold ornaments but did not do so and finally turned her out of the house after beating her. She also claimed the articles of dowry and maintenance.
4. After framing the issues and recording the evidence, the learned trial court dismissed the suit to the extent of dower. The learned Additional District Judge accepted the appeal preferred by respondent No .3 .
5. The learned counsel for the petitioner has contended that as per `Nikah Nama', the dower comprising of an amount of Rs.1,00,000 and gold ornaments weighing 10-Tolas was paid at the time of Nikah' which took place almost one year prior to `Rukhsati so the question of obtaining the same does not arise; that the learned Additional District Judge erred in reversing the well reasoned judgment of the learned trial court due to misreading of evidence; that the impugned judgment is based on surmises and conjectures; that once the dower was paid, the matter came out of the ambit of family dispute and therefore the Family Court or the appellate court could have not assumed the jurisdiction of the disputed matter; that the written statement was filed by a duly constituted attorney, who was fully empowered to act on behalf of the petitioner; that the findings of the learned Additional District Judge in this respect are also not sustainable and that gross miscarriage of justice has been committed by passing an illegal decree.
6. On the other hand, the learned counsel for respondent has contended that if the husband fails to pay the dower or receives it back on the wedding night then the dispute would fall within the exclusive jurisdiction of the Family Court; that the power of attorney was given for pursuing the suit for divorce (suit for dissolution of marriage) and to look after the property so Raja Waheed Iqbal could have not filed the written statement or appeared as witness on behalf of the petitioner in the other suit. It is further contended that the said attorney had no power to file the instant writ petition.
7. It is evident from the special power of attorney Exh.D-1 that it was executed to authorize Raja Waheed Iqbal son of Raja Abdul Ghafoor to act on behalf of the petitioner to look after the property and pursue the divorce case (suit for dissolution of marriage). Admittedly, no suit for dissolution of marriage was filed and in fact the petitioner had himself divorced the respondent No.3. He was not constituted as attorney to e pursue the suit for recover s of maintenance, dower and dowry, which culminated into the impugn d decree.
8. Under the Powers of Attorney Act, 1882, the person to whom the authority to act on behalf of executant is given has to perform onlythose functions in respect of which he is specifically empowered. The special power of attorney has to be construed very carefully and it extends to the affairs enumerated therein. The special power of attorney executed for divorce case was to the extent of suit for dissolution of marriage and could have not been used for other suits or proceedings which do not form part of the suit for dissolution of marriage. This being so, the attorney of the petitioner was neither empowered to file written statement in the suit for recovery of dower etc nor to appear on behalf of the petitioner. His statement cannot be deemed to be the statement of the petitioner and would be treated as testimony of a witness produced by the concerned party. The findings of learned Additional District Judge in this respect do not suffer from any illegality. Nevertheless, said attorney had no power to file the instant writ petition also as he was not authorized to file any writ petition in respect of the matter not arising from the suit for dissolution of marriage.
9. The contention that Family Court had no jurisdiction is also without force as admittedly the dower comprised of a sum of Rs.1,00,000 and gold ornaments weighing 10-Tolas. Admittedly this dower was paid but according to the respondent it was subsequently snatched on the wedding night. If the dower is not paid or is snatched on the wedding night or after the marriage, the dispute would fall within the exclusive jurisdiction of the Family Court in view of the provisions of section 5 read with part 1 of the schedule of the Family Courts Act, 1964. In this respect, reliance is placed on 2012 MLD 553. The plaintiff/respondent No.3 through his affidavit in evidence stated that the defendant/petitioner on the wedding night retrieved the dower. On the pretext that he had to make arrangements for proceeding to England and would repay the same after his return. Her father, who appeared as P.W.2 fully corroborated her statement.
10. On the other hand, Raja Waheed Iqbal, D.W. I did not deny this fact and stated that it was not in his knowledge if the petitioner had retrieved gold ornaments and a sum of Rs.1,00,000 before leaving for England. It is true that any person, not related to her, was not produced by the respondent No.3 but in the family suits, the relatives of the parties are important witnesses. What happened on the wedding night could have not been in the knowledge of the third party so non- production of a witness not related to the respondent is not fatal to her case. In fact, her contention stands also substantiated due to evasive denial made by D.W.1, who claims to be petitioner's attorney. No power of attorney was executed to authorize said Raja Waheed Iqbal to sign the written statement and appear on behalf of the petitioner in the suit for recovery of dower, dowry and maintenance so it would be deemed that he had not contested the suit. In this respect, reliance is placed on PLD 2001 Lahore 495 and 2006 CLC 852. The well reasoned judgment passed by the learned Additional District Judge, Rawalpindi does not suffer from any illegality or infirmity.
The writ petition is without merits and same is hereby dismissed.