Through this appeal, the appellant has called in question the validity ofthe judgment and decree of the Family Court, Mirpur dated 3-1-1996, whereby the suit of the appellant (plaintiff) for dissolution of the marriage was dismissed.
2. The succinct facts forming the background of the instant appeal are that the appellant (plaintiff) brought a suit.' for dissolution of marriage before the Family Court, Mirpur. The respondent filed the written statement on 29-10-1995. The Court ordered the parties to appear before the Court personally for pre-trial proceeding and fixed the case for 26-11-1995. On 26-11-1995, the appellant (plaintiff) did not appear before the Court and the case was fixed for 27-12-1995. On 27-12-1995, the appellant (plaintiff) again did not appear before the Court. The learned counsel for the appellant (plaintiff) contended that the appellant (plaintiff) is present through her attorney. The learned counsel for the respondent objected and submitted that the personal appearance of the plaintiff is mandatory. The' appearance through counsel is not valid for the pre-trial proceeding. The Court ordered, that the appellant (plaintiff) may be produced personally before the Court on the next date of hearing and fixed the case for 3-1-1996. On 3-1-1996, she did not appear before the Court.
The learned Family Judge dismissed the suit of the appellant (plaintiff), on the ground that the personal appearance of the appellant (plaintiff) was mandatory, but she failed to appear before the Court. Feeling aggrieved from the Judgment and decree of the said Court, the appellant filed the instant appeal.
3. Ch. Reaz Raza, the learned counsel for the appellant contended that section 10(2) of the Family Courts Act contains that on the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precise of evidence and documents filed by the parties and shall also, if it so deems fit, record the statement of parties or their counsel. He submitted that the Court was competent to record the statement of the attorney of the appellant (plaintiff). The presence of the appellant (plaintiff) was not mandatory. Therefore, the lower Court has wrongly disnussed the suit of the appellant (plaintiff). He referred 1981 CLC 243, in support of his contention.
4. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondent, Mr. Sahdat A.I Khan Kiani, contended that the presence of the appellant (plaintiff) was mandatory. Under section 10 of the Family Courts Act, the Court has to make an effort for the compromise and reconciliation between the parties and it was not possible without the presence of the appellant (plaintiff). He referred PLD 1985 Lahore 1118, in support of his contentions.
5. I have heard the learned counsel for the parties and perused the relevant record and given my utmost muse to the respective arguments advanced by the learned counsel for the parties:
6. The question requiring determination in the instant case, is whether at the stage of pre-trial proceeding, the personal appearance of the appellant (plaintiff) was mandatory.
7. Section 10 of the Family Courts Act, deals with pre-Trial proceedings, which reads as under:-- "Section 10(1).--Pre-trial proceeding.--As soon as .May be, after the written statement has been filed, the Court shall fix a date for pre-trial hearing of the case and issue notices to the parties for attending the Court on the date so fixed.
(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, record the statement of parties or their counsel.
(3) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.
(4) If no compromise or reconciliation is possible, the Court shall, frame the issues in the case and fix a date for evidence.
8. In the instant case, the interpretation of section 10(1)(2) is required. In interpretation of statute, the intention of the Legislature is of supreme importance, one has to see that what was the basic intention of Legislature. The, intention of the Legislature can be ascertained from the language used in the statute. It is enjoined upon the Court that before resorting to any other source A for assistance regarding the interpretation of statute, it must first seek to find the legislative intention from the words, phrases and sentences used in the statute. Only where the vague and doubtful words have been used in the statute, then the Court will resort towards other elements for ascertaining the intention of the Legislature, than the language of the statute. This view finds support from Crawford's Construction of Statutes 256, which reads as under:-- "Since the Legislature must express its intention by a written statute, that intention, in any instance, must primarily be ascertained from the language used in the statute itself, and not from conjectures aliunde. In other words, before the Court can resort to any other source for assistance, it must first seek to find the legislative intention from the words, phrases and sentences which make up the statute subject to construction. If the meaning of the language of the statute is plain, then according to the rule announced in enumerable cases, there is really no need for construction as the legislative intention is revealed by the apparent meaning, that is-the meaning clearly expressed by the language of the statute. In this case, the statute is given a literal interpretation. It is interpreted to mean exactly what it says. Only where the statute is of doubtful meaning can the Court endeavor to determine the legislative intention from elements beyond the language of the statute."
9. Section 10(1) contains that after the written statement, the Court shall fix a date for pre-trial hearing of the case and issue a notice to the parties for attending the Court on the date so fixed.
Subsection (2) contains that on the date fixed under subsection (1), the Court shall examine the plaint, the written statement, the precis of evidence and documents filed by the parties and shall also, if it so deems fit record the statement of the parties or their counsel. Very plain and the simple words have been used in this section "that if it deems fit record the statement of the parties or their counsel.". It is not mandatory that the parties should personally appear, but the parties can appear through the counsel and the statement of the counsel on behalf of party can be recorded. This provision conveys that it is not mandatory that the parties should be present before the Court and their statement should be recorded. But it clarifies the position that even the statement of the party can be recorded through counsel.
10. The same like proposition arose before the Lahore High Court in case titled "Khalid Mahmood v.
Razia Abbas", reported in PLD 1979 Lahore 217. The High Court observed as under:-- "There is nothing in the language .Of subsection (3) of section 10 to suggest that 'personal attendance' of the parties must be enforced in the Courts to effect the compromise or the reconciliation between the parties and even if the Courts may choose to prefer to examine the parties personally, there is nothing in subsection (3) to suggest that the personal attendance of the parties would be indispensable. The relevant provision reads as follows:-- 'At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.'
7-A. It is not the petitioner's case that no pre-trial hearing was held or that the learned trial Court did not intend to attempt any compromise or reconciliation. It seems to me that it was the petitioner who was objecting to the pre-trial proceedings for a compromise on the ground that such proceedings could only be held after' procuring' the personal attendance of respondent or appellant.
There is lengthy discussion about the question whether the provisions of subsection (3) of section 10 of the Family Courts Act, are mandatory or directory. I am inclined to agree that these provisions are directory provisions but even the directory provisions cannot be regarded as mere surplusage worthy of no notice and would need substantial compliance and cannot be ignored. I, however, feel that the real question arising in this behalf is whether the provisions of subsection (3) of section 10 at all requires personal appearance of the parties.
"If a person required under this Act to appear before a Family Court otherwise than as a witness, is a Pardahnashin lady the Family Court may permit her to be represented by a duly authorised agent."
Section 18 of the Act empowered the Court to permit any 'person required under the Act to appear before the Family Court to be represented by an authorised agent'. The section by itself does not cast any obligation on any person to put in appearance. On the contrary it is an enabling provision which invests the Court with powers to dispense with the legal 'requirement' in relation to appearance by any person and to admit that person to be represented through an authorised agent. The occasion for exercise of powers under section 18 would, therefore, arise only, if it is shown that any person is 'required' by any of the provisions of the Family Courts Act, to appear before the Court and that person being a Pardahnashin wishes to appoint an authorised agent.
I have repeatedly asked the learned counsel to show that subsection (3) of section 10 or for that matter any other provision of the Family Courts Act, "requires" the plaintiff respondent to appear in person. He has not been able to point to any provision in this case.
Having carefully gone through the enactment myself I find that the only provision whereby the Act ' requires' a party to put in appearance may be found in section 9. Under this section the defendant alone comes under the obligation to put in appearance and this provision may rightly be construed as 'requiring' the, defendant to appear. It may, however, be remembered that in this case the respondent was 'plaintiff' and not a 'defendant' and section 9 does not have any application to her case.
Having considered the matter carefully I have come to the conclusion that only the defendant when she is a lady may come within the mischief of being "required" by law to put in appearance.
The provisions of section 18 which enable the Court to permit an authorised agent to represent a Pardahnashin lady does not in any manner take away the right of a counsel to appear and act for and on behalf of his client."
11.This view also finds support from 1981 CLC 243 relevant page 246, which reads as under:-- "At the most, the inference which can be drawn from the conduct of the petitioner in not appearing personally before the Court is that he was not interested in the reconciliation proceedings at the pre-trial stage. I am of the view that no other inference can be drawn by his such conduct. If a party is called upon by Civil Court under the relevant provision of law to make better statement in order to enable the Court to frame issues properly and that party does not appear, then inference can be drawn that the party is not interested to render proper assistance to the Court in framing the correct issues. That, however, does not mean that ex pane decree can be passed against such party. By not appearing personally the petitioner in the present case showed by his conduct that he was not interested to effect reconciliation and since no compromise or reconciliation was possible, the procedure as contemplated by subsection (4) of section 10 was to be followed. By framing issues on the basis of the pleadings of the parties and fixing next date of recording evidence. I agree with the view of my learned brother, M.S.H. Qureshi, J. In 1.979 CLC 647 (Lahore) that possibility cannot be ruled out in certain cases so as to enable the partied to express themselves through their attorneys and advocates. Suppose one of the parties to such proceedings was already out of the country at the time of institution of the suit and unable to appear before the Court in the near future. Will the Court in such circumstances proceed against it ex Parse in the presence of its counsel, who can plead and act on its behalf under the law.
Respectfully following the dictum of law laid down in Muhammad Sadiq Hussain v. Mst. Khurshid Fatima 1978 SCMR 130 as referred to above, I am of the view that in the given circumstances, the Court will act according to the statement of the counsel made under the due instructions of a party at the pre-trial or after trial stage for reconciliation purposes."
12. It is also pertinent to note that section 18 of the Azad Jammu and Kashmir Family Courts Act, also empowers the Court to permit any person required under the Act to appear before the Court, appear through an authorised agent. This section by itself does not create any obligation to any person to put his appearance personally.
13. In the instant case, the appellant (plaintiff) is living in England. She filed the instant suit through her attorney. She has appointed Raja Maqsood Iqbal as her attorney. In the presence of her attorney and the learned counsel for the appellant, the lower Court has wrongly dismissed the suit on the basis of the absence of the appellant-plaintiff. The case law referred by the learned counsel for the respondent, PLD 1975 Lahore 1119, has no bearing on the facts of the present case. In this case it was not held by the High Court that the presence of the party is mandatory, but the proposition in the aforesaid case was that the pre--trial proceeding was not conducted by the Family Judge and the High Court observed that it was mandatory for the Presiding Officer to conduct the pre-trial proceeding.
14. The epitome-of the above discussion is that this appeal is accepted and the judgment and decree of the Family Court, Mirpur dated 3-1-1996, is hereby set aside and the case is remanded to the trial Court with the directions that pre--trial proceeding can be conducted in the presence of the attorney of the appellant (plaintiff) in the given circumstances of the case.