' This is an appeal against the judgment and decree of District Judge Kotli dated 29-2-1984, whereby the appeal filed by the appellant, against the judgment and decree passed by Sub- Judge Kotli on 7th of March, 1982, was dismissed.
2. The brief facts which gave rise to the present litigation are that appellant married with respondent No.1 about 6 to 7 years before the institution of the suit. The spouses lived a happy life for about a year when the appellant started maltreatment, beating and accusing respondent No.1 of adultry and eventually, turned her out of his home after selling her ornaments to meet the charges of impotency. He also did not pay her maintenance allowance. When on 6th July, 1980, she was on her way back to her parents' house, after paying visit to her sister, the appellant, alongwith others, laid her way, gave her beating, kidnapped her and kept her in illegal confinement. She was, however, released by the police who now has developed extreme hatred against the appellant and was even prepared to take divorce on payment of 'Khula'.
3. Appellant-defendant denied the allegations and filed a suit for restitution of conjugal rights against respondent No.1 and a suit for issuance of permanent injunction against the respondents so as not to interfere in the happy living of the appellant with the respondent.
4. The points in controversy between the parties related to the non-payment of maintenance allowance, maltreatment and levelling of false charges of adultry.
5. The learned Sub-Judge in his judgment held that the respondent failed to prove non-payment of maintenance allowance and maltreatment. He, however, held that plaintiff respondent No.1 successfully proved the false accusation of adultry levelled against her, therefore, he held her entitled to a decree for divorce on payment of 'khula' i.e. Rs.500, the dower money. The suit for restitution of conjugal rights filed by the appellant was, however, dismissed. The appellant, feeling dissatisfied with the decree of the learned Sub-Judge, went in appeal to the Court of District Judge Kotli but there too, he met the same fate and now, the judgment and decree of the learned District Judge is the subject-matter of the present appeal.
6. Raja Muhammad Aslam Khan, the learned counsel for the appellant challenged the impugned judgment on the following grounds, namely:-
(i) That the lower Court has made wrong appraisal of evidence, brought on the file and very important evidence was not read while taking the decision of the matter; and
(ii) that the lower Court failed to appreciate the point of 'khula', its application and arrived at a wrong judgment.
7. He emphasized that there was no sufficient evidence to prove that the appellant ever charged the respondent of adultry. This ground was falsely put forth by the respondent to lay foundation to claim divorce on this point. In fact, there stood no evidence in support of this claim. How a husband like the appellant, who has been taking his wife, the respondent, for recreation to Punjab and other places in Pakistan, can be expected of charging his wife with adultry. He prayed that the lower Court failed to appreciate the evidence, thus, has arrived at a wrong decision which requires reversal.
8. The learned counsel appearing for the respondents, raised an objection on the point of validity of the present appeal and its valid presentation. He urged that the memorandum of appeal was not signed by the appellant, therefore, this was not a valid appeal before this Court, thus, it requires dismissal outright. He added that the presentation of the appeal was unauthorized too. Although a blank form of Vakalatnama was filed with the memorandum of appeal, yet it did neither authorize any person to act or plead nor any person accepted such responsibility. tie, therefore, requested that this Court cannot go into the merits of the appeal which may be taken off the file.
9. To meet the objection of wrong appraisal of the evidence, he stated that there stood concurrent findings of the Courts below on the point of false charge of adultry and this, being a factual matter, this Court cannot interfere. The objection that the lower Courts did not appreciate the evidence in a judicial manner, was without any substance. The Courts below have taken pains to discuss the evidence and after paying due consideration recorded well-reasoned judgments, therefore, there remains no need and jurisdiction to make any fresh appraisal.
10. I have heard the learned counsel for the parties and perused the entire record of the case. I have considered the points raised by the learned counsel for the parties.
11. To consider the first objection raised by the learned counsel for the respondent, the provisions of:-
(1) Order III, rule 4,
(2) Order IV, rule 1,
(3) Order VI, rule 14, and
(4) Order XLI, rule 1, of the Civil Procedure Code are to be examined; the relevant provisions are as follows:- 0.11i, rule 4- - "No pleader shall act for any such person in any Court, unless he has been appointed for the purpose by such person by a document in writing......................
0.111, rule 1--"Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf."
O.VI, rule 14. J'Every pleading shall be signed by the party and his pleader (if any): provided that where a party pleading is, by reasons of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him or to sign the same or to sue or defend on his behalf."
0.XLI, rule 1--"Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf."
12. Order III, rule 4 deals with the appointment of pleaders, Order IV, rule 1, deals with the presentation of plaints, Order VI, rule 14 deals with the signatures of the pleadings and Order XLI, rule 1, C.P.C., requires that a memorandum of appeal shall bear the signatures of the appellant or his pleader and shall be presented in the Court by any one of them (appellant or his counsel). the word "shall" having been used in the Rules, the superior Courts, time and again, have examined the implication of these rules but no one's opinion has so far been arrived at.
13. The question of the like nature, was considered by the Patna High Court in a case titled "Palat v.
Sarvan. Shu" AIR 1920 Pat. 581, wherein it was held that an appeal filed without power-of-attorney, was an invalid document as it was filed by a counsel who had no written authority for doing so. The relevant observations are reproduced below:- "An appeal without Vakalat.--Application later on made under section 5 of the Limitation Act to excuse delay supported by a Vakalat which was signed after the period of limitation already expired. It was held--delay could not be excused as no appeal can be validly presented, unless signed Vakalat is in existence at the time of its presentation."
19. The question of the same nature again cropped up for consideration before the Allahabad High Court in a case reported in AIR 1930 All. 112 and it was laid down that an appeal presented in the Court by an unauthorized person, was no appeal, at all, and the Court may reject it for its obvious defect. The relevant observations are as under:- "Where a memorandum of appeal is presented in the Court by an unauthorized person, it is no appeal at all and the Court may reject it for its obvious defect."
15. The question as to whether a counsel can act with or without the written authority and the implication of such action, was considered in a case reported in AIR 1931 All. 767 and it was held that without a written document, there will be no valid appointment of pleader and this defect cannot be cured by endorsing such appointment later on. The observations made are quoted below:- "It is obviously the intention of the legislature that the authority of the pleader to act, should be contained in an instrument in writing and that the appointment of the pleader could not be made verbally. The word "shall" in Order III, rule 4 indicates that the rule is of an imperative character, where the name of the pleader has, through oversight, been omitted from the body of the Vakalatnama, there is no valid appointment and the defect in the endorsement, could not be cured either by production of oral evidence which is inadmissible or by the circumstances that the pleader had endorsed his acceptance in writing on the back of the Vakalatnama. Where the legislature insists upon the execution of formal document, there be no appointment unless the formality has been duly complied with and the written authority in favour of a definite individual or individuals by name, cannot be dispensed with on the ground that enacted rule is mere technical rule of procedure."
16. The question that when name of pleader who filed an application, was not mentioned in Vakalatnama, whether such an application could be considered to be validly presented, was examined by the Allahabad High Court in a case, reported in AIR 1935 All. 727 and it was held that such an application has no legal entity. The relevant passage from the judgment is re-produced as under:- "Where an application for substitution and for execution of a decree was signed by a pleader and was accompanied by a Vakalatnama, in which, however, the place meant for the name of the pleader was left blank and the Vakalatnama did not bear any signature of the pleader showing that he had accepted it--held that application as filed had not been filed by a duly authorized person and was not in accordance with law and does not save the limitation."
17. The Bombay High Court considered the matter in a case reported in AIR 1932 Born. 367 and held that the pleading, not signed by the party, was no pleading in the eye of law. The observations made by the learned Judges are as follows:- "Order VI, rule 14 requires that every pleading should be signed by a party himself or by his duly authorized agent in that behalf. As this plaint does not comply with the provisions of Order VI, rule 14, it is clear that there is no plaint before the Court which could be said to be properly presented as required by Order IV, rule 1."
18. The Madras High Court dealt with a question of similar nature where an execution application was filed by a counsel without Vakalatnama from the decree-holder as to whether such an execution application was tenable or not. After reviewing a number of authorities on the subject, the High Court came to the conclusion that such an application was invalid. Observations made by the Court may be quoted withadvantage as under:- "An execution application filed by a Vakeel who had no Vakalat nama from the decree-holder is not in accordance with law within the meaning of Order III, rule 4, C.P.C. and, therefore, is null and void."
19. The Lahore High Court, while dealing with a matter where an appeal was presented by a counsel without the power-of-attorney, after paying due consideration to the matter, came to the conclusion that such an appeal was not validly presented. Therefore, the appeal was ordered to be returned to the appellant for further appropriate action.
20. A similar question of the validity of appeal signed by a counsel who was not authorized, was considered by the Lahore High Court in a case reported in AIR 1939 Lah. 41 and it was observed that the appeal was not properly presented and was not a valid appeal. The observations made are reproduced below:- "Where the memorandum of appeal was signed only by a newly-enrolled practitioner who was working as an apprentice with the senior counsel, engaged by the appellant and the memorandum was presented by the apprentice without the signatures and permission of the senior counsel--held that there was no proper presentation of the memorandum of appeal."
21. A minute survey of the above-mentioned authorities would reveal that in all these cases, it was held that an appeal which was not signed by the appellant or his counsel and was presented by a person who had no written authority to do the same, was held to be an invalid document, having no legal sanctity but there are also authorities to the effect that the omission to sign the appeal or Vakalatnama, was merely an irregularity not touching the purview of illegality. Tne defect, however, could be cured by seeking amendment with the permission of the Court. The authorities may be summarized below with advantage.
22. A Special Bench of the Allahabad High Court was constituted to consider the point as to whether a person who was, in fact, major, filed pre-emption suit, wherein he was shown to be minor and the suit was instituted through his guardian. The suit was, however, dismissed by the lower Court on the ground that it was not validly instituted. During the pendency of the appeal and considering the importance of the point, a Special Bench was constituted and it was held that as the -suit was filed for prosecution in good faith and without any gross negligence, this was merely an irregularity curable by way of allowing amendment. The relevant passage from the judgment reported in AIR 1931 All. 507, as under:- "If the legislature had intended that the absence of the presenta tion of the plaint by the plaintiff or by some person duly authorized by him would altogether oust the jurisdiction of the Court the language used would have been definite and specific. Instead of that, section 26 merely provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed, without saying in express terms that the presentation should be, by the plaintiff or his duly authorized agent. As there is no specific rule either requiring or expressly authorizing the plaintiff to present the plaint it is doubtful whether Order III, rule 1, of the Code would apply, to such a case. If it does not apply, the presentation by a person orally authorized to do so, would be valid.
But even if it does, we are clearly of opinion that the omission to comply with this provision would be mere an irregularity and not an absence of jurisdiction. The Court receiving a plaint which has not been properly presented would have jurisdiction to dismiss it and pass orders on it. It would not be acting without jurisdiction if it did so. We don't mean to imply to get his plaint presented by a man in the street. If the person presenting it was not properly authorized, the presentation would be irregular. The Court would then have the discretion to allow the irregularity to be cured or not. If the plaintiff has acted in good faith and without gross negligence, and it is fair and just to allow the defect to be cured, the Court would undoubtedly do so. It is not absolutely helpless in the matter."
23. In a case reported in AIR 1932 Lah. 134, the Lahore High Court had to consider a case wherein an appeal was filed by a counsel who had signed the power-of-attorney but his name was not mentioned in it and after considering the point, it was laid down that omission to mention the name of the counsel within the body of the power-of attorney, was not sufficient to invalidate the act of the counsel and the appeal must be deemed to have been properly filed on its first presentation. The relevant observation is reproduced below: "Counsel presenting appeal, power-of-attorney without counsel's name but signed by counsel and appellant--defect rectified by the counsel but after the limitation for filing appeal, appeal is filed within time--held there was merely an accidental omission in the case and there was no doubt as to the authorization of the counsel and as to the party who authorized him to act on his behalf on those matters appeared on the face of power-of- attorney. Such an omission did not invalidate the acts of the counsel and the appeal must be deemed to have been properly filed on its first presentation."
24. The Nagpur High Court in a case reported in AIR 1941 Nag. 159, took the same view and held that the omission by a party to sign his pleadings, is a defect which can be cured even at appeal stage.
25. The Bombay High Court in a case reported in AIR 1946 Born. 174, considered a similar matter and held that failure to comply with the provisions regarding presentation of a plaint, is merely an irregu larity so that if the person presenting it, is not properly authorized to do so, the presentation would be an irregularity but does not oust the jurisdiction of the Court. In such a case, the Court would have the discretion to allow the irregularity to be cured if the plaintiff has acted in good faith and without gross negligence.
26. A Full Bench of the Allahabad High Court in a case reported in AIR 1949 All. 367, considered the point as to whether an application for execution which is, in all other respects, in rder and which was admitted and registered by the executing Court, is not to be considered to have been in accordance with law within the meanings of Article 182(5) of the Limitation Act (Act IX of 1909), merely because it has been handed over to the Munsarin by a pleader who had not got Vakalatnama from the decree-holder. The Full Bench, after reviewing dozen of authorities from various High Courts, of the Sub-Continent, returned the answer in negative. It was held that mere physical act of handing over an application for execution, does not amount to acting within the meanings of Order Ill, rule 1 or Order III, rule 4, C.P.C. and presentation of an application for execution, is not an act required or authorized to be done within the meanings of Order III, rule 1, C.P.C. and this physical act, does not amount to applying making an application and may be performed by any person to whom the person making the application entrusts it and even if it is assumed that the presentation by such a person is not strictly in accordance with law, the defective presentation, constitutes merely an irregularity which does not make the application for execution, not made in accordance with law
27. The Madras High Court came across to deal with a case when an execution application was filed by a counsel without Vakalatnama and it was opined in the case reported in AIR 1950 Mad.
340, that presentation of an execution application, by a Vakeel who had no Vakalatnama from the decree-holder, is merely an irregularity. When an application in such a case is filed within the period of 12 years and the subsequent filing of Vakalatnama, after the period of 12 years, cures the formal defect.
28. The validity of the appeal which was neither signed by the appellant nor his counsel was considered by our own High Court in a case reported in PLD 1963 AJ&K 81 and it was held that such a defect was not fatal. The learned Judge added that the counsel opposing the rule did not cite any authority in support of his contention. The relevant observation is hereinafter reproduced with advantage:- "Failure to sign the plaint or the memo. of appeal and failure to verify the plaint have never been held to be fatal. This is an irregularity that can be cured by allowing the memo. to be signed."
29. Keeping in view the use of the word "SHALL" and the manner in which it was used in Order III, rule 4, Order XLI, rule 1 and the rights and responsibilities created by them, it looks that the compliance of the provisions is mandatory and not directory. Any other interpretation will not only be against the rule of interpretation of statute but will fail to achieve the object of the legislature.
30. After considering the authorities and the rules and procedure mentioned above, I feel that the appeal in hand is incompetent for the following reasons, namely:-
(i) Appeal was neither signed by the appellant nor his counsel, therefore, this offends against the provisions of Order XLI, rule 1, C.P.C. which requires that every appeal shall be signed by the appellant or his pleader and shall be presented to the Court or to such an officer as it appoints in this behalf; and
(ii) Although a form of Vakalatnama was filed alongwith the memorandum of appeal but it neither contains the name of counsel nor any endorsement in token of acceptance, therefore, the person who has presented it, had no authority to do so, therefore, this would not be a valid presentation.
31. Some of the authorities mentioned in the foregoing paragraphs, do take the view that such an omission can be held to be an irregularity, provided the appellant would have acted in a good faith. The term "good faith" presupposes that the appellant must have acted with due care and caution. In the instant case, the appellant did neither sign the appeal nor he engaged any counsel.The mere filing of a form of Vakalatnama which neither contains the name of the counsel nor an endorsement, as a token of acceptance thereof, shows that the appellant B has acted in a most irresponsible manner, therefore, such an omission, I think, cannot be allowed to be cured by way of amendment. However, neither the appellant who was present in the Court at the time of arguments nor his counsel made any such prayer. Therefore, I hold that this appeal is incompetent and shall be taken off the file.
32. Order XX, rule 5, C.P.C. requires that a Judge must decide all the points in controversy between the parties so that in case of appeal, the appeilate Court may have the judgment on all controversial points before it, for taking a just decision. Therefore, I have examined the merits of the appeal in hand.
33. The only point, which was agitated before me at the time of arguments, was about non- appraisal and misappreciation of the point of 'khula'.
34. The learned counsel for the appellant advanced his arguments at a considerable length to prove that this is not a fit case where the decree, on the point of 'khula' could be justified. He urged that the appellant did not charge the respondent of committing adultry, therefore, the lower Courts were wrong to grant decree. The decree, on the point of 'khula', can only be granted when the Judge fears that the parties, under the circumstances of the case, would not be able to live within the limits prescribed by God. He added that here, in the present case, the appellant is all-out to bring back his wife so that they could live as husband and wife. He has no complaint, whatsoever, against his wife. He elaborated that there is no material on the record to show that the spouses shall not be in a position to live within such limits, therefore, there was no justification for the Court to order separation.
35. The learned counsel for the respondents, on the other hand, argued that a marriage between a man and woman, according to the Islamic concept of law, means a happy living of the spouses, enjoying confidence in one and other and have mutual respect and love and if one of the above- stated requirements is missing, to remain within the limits prescribed by Almighty Allah, would not be possible. He referred to the statement of the appellant, wherein he stated that he caught hold of her, when she was trying to elope with one Muhammad Yasin. He stressed that the very allegation of eloping, pre-supposes that the appellant has no confidence in the chastity of the respondent and in such a state of the matter, how one can presume that the appellant would have confidence in the respondent. If in such a case, a woman is kept by a man in his house as a wife, he would always be doubting her chastity and the woman would also be under the impression that her husband has no confidence in her and this is a circumstance which shows that the parties shall not live a happy life enjoying mutual love and respect.
36. I have given my patient thought over the matter and I feel, to accept the version put forth by the learned counsel for the respondents that in case, the separation is not ordered, the appellant and the respondent would not enjoy a peaceful living and a happy life as husband and wife and the reasons are as under:-
(i) The appellant got recovered the respondent through police inter vention and made her to appear before the District Magistrate where she stated that she would not like to live with the appellant, her husband. Once again, she was recovered by the police on the application of her father when, as alleged by her, she was illegally kidnapped and illegally confined by the appellant and, therefore, she was released. The appellant, alongwith other person, was challaned and has been facing trial; and
(iii) It is even the case of the appellant himself that he caught hold of the respondent when she was trying to elope with Muhammad Yasin.
37. Keeping in view the above circumstances, how a woman, like the respondent, can expect better treatment at the hands of her husband, if she is made to go and live with him. The concept of marriage, according to Islam is a contract between a man and woman for the procreation of the children. The procreation of the children is only possible if there is a love in existence between the parties and this is only possible if they enjoy mutual respect, confidence and affection but when any one of the couple, according to the other, is having suspicious conduct, then the object of the marriage would not be achieved or fulfilled.
38. This point came up for consideration, time and again, before various superior Courts of India and Pakistan and the Islamic Jurists. They, after putting up a hard labour and going through various authorities on the subject, came to the conclusion that when the spouses fail to maintain mutual respect, confidence and love and there develops extreme hatred, the separation is the only solution which the Courts should order on payment of 'Khula'.
39. In Balqees Fatima's case PLD 1959 Lah. 556, a Full Bench was constituted which considered the matter and it was decided that in case of Shakak, where the Court considers that the parties shall not be able to live within the limits ordained by Almighty Allah, the wife is held entitled to claim divorce on payment of 'Khula'.
40. The case of the like nature, came up for consideration before the Supreme Court of Pakistan and a Full Bench of the Supreme Court again examined the point in controversy before them in their judgment reported in PLD 1967 SC 67 and endorsed the same view. As the learned Judges have already dealt with the point and have examined and discussed the authorities on the subject in detail; they went in depth to reach a right conclusion, 1 need not discuss and repeat it further.
41. In the light of what has been stated above and keeping in view the facts of the case in hand, I feel that there is a rift (Shakak) between the parties which, I think, cannot be abridged and if the F separation is not ordered, the parties would not be able to live within the prescribed limits of Almighty Allah. Therefore, the separation between the spouses is the only just solution of the controversy.
42. In the aforesaid view of the matter, I don't find any error which the subordinate Courts have committed to reach the just and correct conclusion. Therefore, I hereby dismiss this appeal with costs.