SHAKIL AHMAD, J. Instant is a petition that has been filed by Irfan Javed and two others under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to assail order and decree dated 27.02.2019 and judgment and decree dated 21.08.2019, passed by learned Senior Civil Judge (Family Division), Toba Tek Singh and learned Additional District Judge, Toba Tek Singh, respectively, whereby suit filed by Mst. Rubab Shahid (respondent No.3) against Irfan Javed and two others for recovery of dowry articles was decreed by learned Senior Civil Judge (Family Division) Toba Tek Singh as a consequence of special oath taken by Mst. Rubab Shahid and the decree was maintained in appeal by learned Additional District Judge, Toba Tek Singh.
2. Facts, in brief, giving rise to the filing of instant petition are that Mst. Rubab Shahid instituted a suit on 11.09.2018 for recovery of dowry articles against Irfan Javed and two others narrating therein that her marriage was solemnized with Irfan Javed on 22.08.2013 and she was given dowry articles not only by her parents but also by her enatic and patrilineal sides. As per contents of plaint, behaviour of Irfan Javed towards Mst. Rubab Shahid went bad to worse and he drove her out of the house at the instigation of his sisters and finally pronounced divorce on her on 01.07.2017. As per contents of plaint, dowry articles of Mst. Rubab Shahid valuing Rs.20,12,056/- as per list annexed with the plaint were lying at the house of Irfan Javed and despite persistent demands, he refused to return the dowry articles. Suit was contested by Irfan Javed and remaining defendants by filing their respective written statements and after framing the issues, case was fixed for recording of evidence. On 13.10.2018 the said suit was ordered to be consolidated with two other matters pending adjudication before the learned Judge Family Court, one for recovery of maintenance allowance and the other for custody of minors and in consequences whereof additional issue qua recovery of dowry articles was framed. It was on 31.01.2019 when Mst. Rubab Shahid appeared as PW-1 and submitted her affidavit Ex.P-1 as her examination-in-chief and she subsequently entered in the witness box for cross examination on 14.02.2019. During the course of her cross examination, an offer was made by learned counsel for Irfan Javed qua decision of the matter through special oath on Holy Quran by Irfan Javed, however, this offer was not accepted by Mst. Rubab Shahid and instead she signified her willingness to state on oath on Holy Quran and also by putting her hands on the heads of her children that her dowry articles were lying at defendant's house. Learned counsel for Irfan Javed by agreeing to this proposal, requested learned trial court for taking oath of Mst. Rubab Shahid qua dowry articles on Holy Quran and by putting her hands on the heads of her children. Matter was adjourned on the joint request for taking special oath and Mst. Rubab Shahid was directed to appear in person along with her children on 15.02.2019. An application, however, was moved on the adjourned date by Irfan Javed with the prayer that his oath may be taken in the court. As per contents of that application, Irfan Javed did not instruct his counsel to make offer to Mst.
Rubab Shahid for taking her special oath. It was further averred that the offer made by his counsel qua taking oath from Mst. Rubab Shahid was under misconception. Said application, however, was dismissed by learned trial court and statement of Mst. Rubab Shahid was recorded under special oath as agreed and in consequence whereof her suit for recovery of dowry articles was decreed vide order and decree dated 27.02.2019. Said order and decree were assailed by petitioners by filing an appeal, the same was dismissed vide judgment and decree dated 21.08.2019, hence this petition.
3. Learned counsel for petitioners mainly argued that no specific direction was given by Irfan Javed to his counsel for resolution of the controversy qua dowry articles through special oath and thus his counsel was not at all authorized either to make any offer to other side or to accept any such offer. Added that learned Judge Family Court committed illegality by deciding the matter on special oath and learned Appellate Court also committed the same error by maintaining the decree passed by learned Judge Family Court. It was further argued that whole proceedings regarding offer and so-called acceptance by learned counsel for Irfan Javed took place in absence of petitioners and having come to know about that, application was immediately filed by Irfan Javed, which was wrongly dismissed by learned trial court. According to learned counsel, authority given to learned counsel for Irfan Javed through power of attorney simply pertained to routine matters which in no case include authorization for deciding the case on the basis of special oath. Learned counsel went on arguing that procedure adopted by learned trial court for taking special oath was against the law. For his arguments, learned counsel relied on case "Mst. Khairan Bibi v . Mst. Hajran Bibi" ( 2012 YLR 2054 ).
4. As against that, learned counsel for respondent No.3 contended that both the courts below rightly decided the matter and impugned decrees cannot be taken to any exception in exercise of constitutional jurisdiction of this Court.
5. Heard learned counsel for the parties. Record so annexed with the petition and that of summoned from the learned trial court perused.
6. Bare perusal of proceedings dated 14.02.2019 before learned trial court would vividly reveal that a simple, clear and straightforward offer was made by Mst. Rubab Shahid and the same was unambiguously acceded to by learned counsel for Irfan Javed. Thereafter , learned Judge Family Court stopped further cross examination and on the joint request, matter was adjourned for taking special oath by Mst. Rubab Shahid. The moot point to be resolved in view of submissions made by learned counsel for petitioners is that:- Whether learned counsel for Irfan Javed was authorized to make statement for decision of case on the basis of special oath by accepting the of fer made by Mst. Rubab Shahid?
Before entering upon to resolve the moot point hinted supra, it seems essential to first of all deal with and examine the nature, scope and extent of contract between a counsel and his client with reference to relevant provisions of law. Section 2 of the Power of Attorney Act, 1882 deals with execution under power of attorney . This section applies to the power of attorney created by an instrument. Similarly , provisions of sections 182 to 238 of the Contract Act, 1872 deal with the appointment and authority of agents. Words "Agent" and "Principal" have been defined in section 182 as under:- "182. "Agent" and "principal" defined .-An "agent" is a person employed to do any act for another or represent another in dealing with third persons. The person for whom such act is done, or who is so represented, is called the "principal".
A counsel who is appointed to represent his client proceeds to act on behalf of principal as per the powers so conferred on him under the ordinary rules governing the relationship of principal and agent as determined by the terms of power of attorney . Powers so conferred on a counsel would indeed create mutual obligations inter se the parties and an attorney would fall within the definition of agent as contemplated under section 182 of the Contract Act, 1872. The contract between an advocate and his client is essentially governed by the general rules of contract as embodied under the various provision s of Contract Act. In case "Sh. Muhammad Fazil v. Abdul Qadir and 7 others" (1997 CLC 243 [Lahore]), scope and object of powers given through power of attorney to a counsel was eloquently and extensively dealt with in following manner:- "Speaking for the law as to construction of powers of attorney it is well understood that different clauses thereof are scrutinized so as to understand the scope and object of various powers granted thereby and it is too well-known that the clauses contained therein are all too important to understand the same. Over the period of years the rule as to construction of power of attorney have been interpreted to mean that the powers which have not been incorporated in the power of attorney should not be imported therein nor the general power as is usually incorporated at the end of the document of power of attorney should be constructed to include all the powers of the principal. Needless to add that the general powers as included in the power of attorney have always been read in conjunction with the specific powers incorporated in the general power of attorney and not beyond and that it has also been insisted that for every and any power which an attorney is supposed or purported to exercise, there must be a specific clause thereby authorizing him to exercise such a power ". (Emphasis supplied)
It is almost an established principle of law that power of attorney should be constru ed strictly and be interpreted to give only such authority as it confers expressly or by necessary implication.
7. In the backdrop of above, now reverting to the query as to whether learne d counsel for Irfan Javed was competent to make statement on his behalf for deciding the matter on special oath, answer can conveniently be found from the contents of power of attorney {{URDU TEXT}} executed by Irfan Javed in favour of his counsel namely Ch. Suleman Razzaq, Advocate. Relevant portion of power of attorney is reproduced hereunder for the facility of ready reference: - {{URDU TEXT}} Above referred vernacular expression beyond an iota of ambiguity evinces the intention of principal i.e. Irfan Javed conferring the power to his counsel for making statement qua decision of matter on oath. It can, therefore, very conveniently be resolved that learned counsel for Irfan Javed was fully authorized to give any statement qua decision of the case on special oath. Irfan Javed, therefore, was bound by an act or undertaking of his counsel for the simple reason that his counsel was holding a valid authority to act on his behalf on the basis of contents of power of attorney executed by him in favour of his counsel.
8. There is no cavil with the proposition that by dint of section 17(2) of Family Courts Act, 1964, provisions of sections 8 to 11 of Oaths Act, 1873 are made applicable to the proceedings before Family Courts. The underlying wisdom of above hinted provision of Family Courts Act, 1964 is swift and expeditious settlement of Family disputes for the simple reason that a Family dispute is not limited to the four walls of home between two persons viz., man & wife, rather it has impact on the souls and minds of all near and dear to the contesting parties and it may disrupt not only the mental fabric of both the parties but also of those who are not even party to it directly particularly the children and the parents of the parties. As regards submission of learned counsel for petitioners that procedure adopted by learned Judge Family Court for taking special oath was against the law, it may be seen that same also is devoid of any force. Proceedings carried out by learned Judge Family Court were in accordance with the provisions of sections 8 to 11 of the Oaths Act, 1873. Undeniably , an offer was made by Mst. Rubab Shahid and that was agreed upon by learned counsel for Irfan Javed and in consequence whereof Mst. Rubab Shahid took special oath in the terms as agreed upon and learned Judge Family Court proceeded to decree the suit as per the dictates of section 11 of the Oaths Act, 1873. It is also settled principle of law that the word 'party' as hinted in sections 8 & 9 ibid includes an Advocate of the party also and the offer to abide by the special oath under Section 9 may be accepted not by party personally but by a party through an agent. Relian ce in this regard may safely be placed on "Haji Dilbar Khan Mahaar , AAG Mewo and another v. Mst. Lal Khatoon" (PLD 1962 Kar.
162), wherein it was held that an Advocate empowered by a party to enter into a compromise etc., was fully competent to make an offer to abide by the special oath and in doing so he must be deemed to have been instructed by his client. In "Hata v. Samail" (AIR 1932 Lahore 414) it was held that any act required or authorized to be done by a party to a suit can be done by his recognized agent provided the act falls generally within the scope of the latter 's authority . It cannot be held that an offer to be bound by the oath of the other party must be made by the party personally and not by his duly authorized agent. Therefore, an Advocate empowered as such by a party can make statement for the decisi on of the case on special oath particularly where the contents of power of attorney {{URDU TEXT}} specifically authorize a counsel to get his statement recorded for decision of the case on oath. In view of above discussion, argument of learned counsel for petitioners that authority given to learned counsel for Irfan Javed through power of attorney simply pertained to routine matters which in no case include authorization for deciding the case on the basis of special oath, carries no solid rational.
9. It may further be seen that no particular form or procedure for recording offer and acceptance qua decision of the cases on oath has been prescribed in the provisions of Oaths Act, 1873. Guidance has been sought from case "Muhammad Ali v. Major Muhammad Aslam and others" (PLD 1990 Supreme Court 841) wherein it has been observed by Apex Court as under:- "- - - -The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over-emphasized, for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements.
We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, not do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases, because sections 9 to 11 of the Oaths Act do not admit of such intrusions, but we would say that all this may be treated as a note of caution, for a Court is as much bound to ensure the solemnity of these proceedings, as the parties are bound to respect them" .
In another celebrated judgment titled "Ahmad Khan and others v. Jewan" (PLD 2002 Supreme Court 655) it was observed by the Apex Court that there were no hard and fast rules for accepting or rejecting the statement of a person given on oath provided departure from it was made on the basis of cogent grounds and depending upon case to case. In the instant case, statement of Mst. Rubab Shahid was recorded on special oath in pursuance of an offer that was agreed by learned counsel for Irfan Javed. Such an offer when was accepted, it became agreement in the nature of contract the nature of which was binding on both the parties.
10. So for as case law "Mst. Khairan Bibi v. Mst. Hajran Bibi" (2012 YLR 2054 ) relied upon by learned counsel for petitioners is concerned, the same has to proceed on the peculiar facts of that case and has no relevance whatsoever to the facts and circumstance s of the instant case. Power of attorney in that case did not bear a clause authorizing the counsel for decision of matter on the basis of special oath whereas in the instant case learned counsel for Irfan Javed petitioner as hinted earlier , was fully authorized to make statement for decision of matter on oath and even the statement of Mst. Rubab Shahid was recorded as per the dicta tes of sections 9 & 10 of Oaths Act, 1873.
11. Looking the matter from an altogether different angle, it may be shown that petitioners while filing this constitutional petition were required to have annexed all documents necessar y for resolution of the matter .
However , they failed to annex copies of certain necessary documents particularly evidence of the parties, cross examination on respondent No.3 (PW-1) whereby offer made by her was accepted by learned counsel for Irfan Javed. Similarly , statement of Mst. Rubab Shahid on oath was also not annexed with the petition and last but not the least, attested copy of power of attorney of learned counsel for Irfan Javed before learned trial court was not annexed with the instant petition. Non-annexing of all these documents, in particular copy of power of attorney which contained the fact that learned counsel for Irfan Javed was authorized to make statement for resolution of matter on oath, reacts against the bona fides of petitioners. It rather appears that these documents were not annexed with the instant petition by a design. Petitioners seemed to have willfully omitted to annex necessary and essential documents with the petition. Therefore, they did not come to the Court with clean hands. There is no cavil with the proposition that extraordinary constitutional jurisdiction under the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is discretionary and equitable and same cannot be extended to a party who did not come before the Court with clean hands. Reliance in this regard may safely be placed on case reported as "West Pakistan T anks T erminal (Pvt.) Ltd. v . Collector (Appraisement)" ( 2007 SCMR 1318 ).
12. The concurrent findings of both the courts below are in accordance with law and the same in no way suffer from any jurisdictional defect or error and the same cannot be taken to any exception by invoking the extra-ordinary constitutional jurisdiction of this Court. It is well established principle of law that this Court in exercise of constitutional jurisdiction has only to see whether the court acted without jurisdiction or had violated the statute or law laid down by the superior courts. This Court while exercising power under the provisions of Article 199 of Constitution of Islamic Republic of Pakistan, 1973 is not required to decide the matter in the same manner as regular appeals are heard and decided. Reliance in this regard may safely be placed on cases reported as "Muhammad Sharif and another v. Muhammad Afzal Sohail etc." (PLD 1981 Supreme Court 246) and "Aamir Latif v . Member (Colony), Board of Revenue, Lahore and 2 others" ( 2005 YLR 1913 ).
13. Natural corollary to the above discussion is that petition in hand merits dismissal by looking from any angle and the same therefore dismissed as such.