ATIR MAHMOOD, J. Brief facts of the case as narrated in this petition are that respondent No.1 filed a suit for recovery of maintenance allowance, recovery of dower as well as recovery of dowry articles before the learned trial Court which was contested by the present petitioner by way of filing written statement. Out of the divergent pleadings of the parties, issues were framed, evidence adduced by the parties was recorded and thereafter , after hearing both the sides, learned trial Court partially decreed the suit of respondent No.1. Feeling aggrieved, respondent No.1 preferred an appeal before learned Additional District Judge, Lahore wherein respondent No.1 managed to file memo of appearance on behalf of the petitioner through a counsel without any name on 08.07.2009, therefore, the petitioner was proceeded against ex parte and vide judgment and decree dated 18.01.2010, the appeal was accepted and judgment and decree passed by the learned trial Court was modified.
Subsequently , respondent No.1 filed execution petition on the basis of judgment and decree of learned trial Court wherein the petitioner came to know about the passing of judgment and decree of learned lower appellate Court which resulted into filing of application under section 12(2), C.P.C. before learned Additional District Judge, Lahore.
The opposite party resisted the said application through filing of written reply of the same and finally vide order dated 31.03.2017, the application was dismissed. Hence, this writ petition has been filed.
2. Learned counsel for the petitioner contends that impugned order dated 31.03.20 17 passed by learned Additional District Judge, Lahore is against the law and facts; that the petitioner was not served in the appeal rather a fake memo. of appearance was filed by respondent No.1 in order to restrain the petitioner to pursue the proceedings in appeal; that learned court below has dismissed the application of the petitioner filed under section 12(2), C.P.C. in a mechanical manner without even entertaining the oral arguments. Argued that the impugned order suffers from illegality and material irregularity . Lastly prayed for acceptance of the writ petition and setting aside of the impugned order .
3. On the other hand, respondent No.1 has seriously controverted the contentions raised by learned counsel for the petitioner and supported the impugned order while asserting that the learned Additional District Judge, Lahore has not committed any illegality or irregularity rather the impugned order was passed in accordance with law, therefore, no interference is called for and this petition being not maintainable is liable to be dismissed, with cost. She stressed that the petitioner is prolonging the litigation to deprive the respondent from her lawful right and for that purpose he has maneuvered the forged, fictitious and fraudulent document of divorce issued on 23.06.2013 whereas there is no record of the Union Council concerned which could establish that divorce was pronounced upon the respondent and became ef fective.
4. Arguments heard. Record perused.
5. The sole contention of the learned counsel for the petitioner to set aside the impugned order is that he has not been properly served in the appeal and respondent No.1 with mala fide intention and fraudulently managed memo of appearance of an advocate whose name has not been mentioned in the memo. of appearance and succeeded to get ex parte judgment and decree by the learned lower appellate Court, therefore , the impugned order is liable to be set aside. Conversely , respondent No.1 who is being represented by her daughter Mst. Shamim had taken the stance, that the petitioner has rightly been proceeded against ex parte as he had been duly served.
6. The record is suggestive of the fact that on 08.07.2009 an advocate appeared before the learned lower appellate Court and filed memo of appearance on behalf of respondents who was directed by the court to submit proper power of attorney on the next date and the case was adjourned to 16.07.2019. On the said date the counsel did not file the power of attorney and case was kept pending further for two dates i.e. 19.08.2009 and 31.08.2009 for the same purpose and on 31.08.2019, the respondent party was proceeded against ex parte. I have minutely examined the memo. of appearance which demonstrates that the plea of the petitioner is correct qua the fact that there is no existence of name or other detail of counsel for the petitioner . Memo. of appearance is an undertaking to file proper power of attorney where for some reasons a duly signed power of attorney within the meaning of Order III, Rule 4, C.P .C. is not immediately procured.
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4. Appointment of pleader .---(1) No pleader shall act for any person in any. Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power -of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader , as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
(3)________________________ (4)________________________
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party , unless he has filed in Court a memorandum of appearance signed by himself and stating:-
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorized to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party .'
Memo of appearance only enables an advocate to plead on behalf of a party for a particular hearing and is yet to be authorized by the party to conduct all the proceedings. Order III Rule 4(i), C.P.C. expressly prohibits a counsel from appearance in the court without filing wakalatnama duly signed by the party . The said wakalatnama is deemed to be in force until all proceedings in the suit are ended or till such time the power of attorney is withdrawn or revoked according to the rules, therefore, in case if the lawyer who files memo. of appearance fails to submit a proper power of attorney on the next date fixed, in that case the court shall issue fresh notice to the party concerned. It was brought to the notice of learned lower appellate Court that no waqalatnama was submitted on behalf of the present petitioner , then the learned trial Court was then bound to issue fresh notice inspite of initiating of ex parte proceedings. Furthermore, an unauthorized person cannot address a Court as provided under section 119 of the Code of Civil Procedure, 1908, which reads: '119. Unauthorized persons not to addres s Court. Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.'
For filing or instituting any application or suit an advocate or counsel should have a duly executed power of attorney in his favour so as to represent any litigant before any legal forum in accordance with Part-A, Chapter 16, Volume-I of High Court Rules and Order , which reads as under: `Pleading and acting by pleaders. Where as by Order III, Rule 4, of the Code of Civil Procedure, no pleader shall 'act ', for any person in any Court unless he has been appointed by an instrument in writing, nor shall any pleader , who has been engaged for the purpose of pleading only, plead on behalf of any person unless he has filed in Court a memorandum-of-appearance or unless he has been engaged by another plead er duly appointed, and no such pleader can be recognized in the absence of a written authority or memorandum-of-appearance as aforesaid as empowered to plead or act for any perso n in any proceeding governed by the Code of Civil Procedure, and it is expedient to provide for ascertaining that every such pleader is duly authorized to appear , plead or act in any such proceeding before subordinate Courts, the following instructions have been issued by the High Court-- (1)Power of attorney to act to be executed by the principal. Every appointment of a pleader to act shall contain in full the name of the person, or where there are more than one, of every person who thereby appoints the pleader to act on his behalf; and shall be executed by every such person. (2)Proof required when power of attorney not executed by the principal:-- When such appointment or power is not executed by the principal himself, but by some person claiming to appoint or give authority on his behalf, the pleader will not be recognized by the Court without proof that such person was duly authorized by the principal to execute such appointment or power . (3)Power of attorney or memorandum of appearance in cross appeals. In cross-appeals a pleader who has already filed a, power -of- attorney or memorandum-of-appearance for the appellant shall not be required for his client as respondent in the cross-appeal.'
7. The learned lower appellate Court while dismissing the application of the petitioner mainly relied upon the fact that the petitioner in his application under Section 12(2), C.P.C. did not aver that he was never served and merely stated that memo. of appearance on his behalf was maneuvered document. I have perused the order sheet of the learned appellate Court which reflects that appeal was filed on 30.07.2008 and notices were issued for 17.09.2008.
The process was repeated on sixteen subsequent dates but there was no report that the petitioner refused to accept the service or disappeared in order to avoid the service. On 30.06.2009, notices were issued through registered post, TCS and in case of non service order was passed for fixation of the notice. Undeniably till the said date there is no report that notice was served upon the petitioner , however , on 08.07.2009 a memo of appearance was submitted on behalf of the petitioner/respondent. Unfortunately , the learned appellate Court failed to perform its duties by applying its judicious mind and did not mention the name of the learned counsel who allegedly submitted memo of appearance before the Court. The memo of appearance which has been appended with this petition, filed before the learned appellat e Court, did not bear the name of learned counsel. From the above, it appears that the petitioner was not properly served and B represented before the appellate Court, therefore, the finding of the learned appellate Court are not sustainable in the eye of law and it will against the norms of justice if he is not provided an opportunity to defend the appeal filed against him.
8. As far as the contention of the respondent No.1 that the forged and fabricated divorce deed has been produced by the petitioner is concerned, I feel it appropriate to observe that during the pendency of this writ petition an order was passed by this Court for summoning the record of Union Council No.4, Faisal Park, Shandarah, Lahore with regard to the alleged divorce deed whereupon the Secretary Union Council conce rned appeared before this Court and submitted a report of Deputy Director LG&CD, Lahore wherein it was held that the above referred certificate was issued on the basis of fake information and case file is available with the Union Council record.
9. Another argument of respondent No.1 is that this writ petition has been filed assailing order passed in an application under section 12(2), C.P.C. which is not maintainable as in such cases, revision petition only lies. This is a technical objection. This writ petition has been filed within the time prescribed for filing the revision petition as the impugned order was passed on 31.03.2017 whereas this writ petition has been filed on 04.05.2017. If this writ petition had been filed beyond the period of limitation, then there has been some force in the argument of respondent No.1 and there has also been some difficulty in entertaining this writ petition on account of being hit by time limitation. Had the revision petition filed instead of the writ petition, the fate of the case would have been the same, therefore, the argument of respondent No.1 does not hold water . Even otherwise, this Court has ample powers to convert a writ petition into revision petition. Reliance is placed on the law laid down in case Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others (2017 SCMR 1 18).
10. In view of what has been discussed above, this writ petition is allowed , however subject to payment of cost of Rs.100,000/- which shall be paid by the petitioner to respondent No.1 and the impugned order is set aside. The application under section 12(2), C.P.C. for setting aside the ex parte judgment and decree is allowed . Resultantly , the appeal filed by the respondent shall be deemed to be pending before the learned appellate Court. The parties are directed to appear before the learned District Judge, Lahore on 04.09.2019 who is directed to decide the appeal himself after hearing the parties afresh, within a period of 30 days from the date fixed by this Court i.e. 04.09.2019. In order to meet with the target date, day to day proceedings may be carried out by the appellate Court.