This petition has been filed to challenge order dated 31-7-2000 whereby the appeal filed by Mst.
Falak Naz, respondent No,1 was allowed and she was granted past maintenance for two and a half years,
2. The material on the record shows that the petitioner had contracted marriage with Mst. Falak Naz, respondent No,1 on 5-5-1997. The petitioner lived with his wife for about 15 days and then proceeded to Norway. He contracted second marriage and deserted respondent No,1.
Subsequently he contracted third marriage as admitted by his father, Mian Khan, who appeared as D.W.1 on his behalf before the Family Court. After considering the material on the record the Family Court allowed maintenance at the rate of Rs,3,000 per month to respondent No,1 from the date of institution of the suit and for the period of Iddat vide judgment and decree dated 26-6-2000. The petitioner did not challenge the said decree. However, respondent No,1 filed an appeal claiming past maintenance for 30 months as well. The Appellate Court found that there was no written statement on the record signed by the petitioner himself; that he failed to join the pre-trial as well as post-trial reconciliation proceedings and did not appear as a witness in the case, therefore, the suit remained uncontested. The Court also observed that according to section 18 of the West Pakistan Family Courts Act only a Pardanashin lady has been allowed to appear in a family suit through her duly authorised agent but even she has to appear in person as a witness. The petitioner's learned counsel tried to urge that no objection was raised to appearance. Of the petitioner's attorney in the Court as a witness and that it was also an act of omission on the part of the Family Court which should not cause any prejudice to the petitioner.
3. The petitioner's learned counsel has relied on the judgment in the cases of Khalid Mahmood Syed v. Razi Abbas Bokhari PLD 1979 Lahore 217 and Mst. Saeeda v. Lal Badshah 1981 SCM R 395.
These judgments are of no help to the petitioner. In the case of Mst. Saeeda it was held that the provisions of section 18 of the West Pakistan Family Courts Act do not take away right of an Advocate to appear'and act for and on behalf of his client in view of the express provisions of section 22 of the Legal Practitioners and Bar Councils Act, 1973. Obviously the judgment does not deal with the right of a private person to appear on behalf of a party to the suit before a Family Court. In the case of Khalid Mahmood Syed it was held that the provisions of section 18 of the Act were enabling in nature which were applicable where a person was required by any provision of the Family Courts Act to appear before the Court then the Court is empowered to dispense with the personal attendance of a Pardanashin lady and allow her to be represented through an authorised agent but not when that the only provision whereby the Act "requires" a party to put in appearance is found in section 9 which relates to a defendant and not a plaintiff. Section 9 of the Act reads as under: -- "Section 9. Written statement.--(1) On the date fixed under clause (a) of subsection (1) of section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement and attach therewith list of his witnesses alongwith a precise of the evidence that each witness is expected to give.
(2) Where a defendant relies upon a document in his possession or power. He shall produce it or a copy thereof in the Court along with the written statement.
(3) Where he relies on any other document, not in his possession or power, as evidence in support of his written statement, he shall enter such documents in a list to be appended to the written statement.
(4) Copies of written statement, list of witnesses and precise of evidence referred to in subsection
(1) and the documents referred to in subsection (2) shall be given to the plaintiff, his agent or advocate present in the Court,
(5) If the defendant fails to appear on the date fixed by the Family Court for his appearance, then-- -
(a) if it is proved that the summons or notice was duly served on the defendant, the Family Court may proceed ex pane provided that where the Family Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may upon such terms as the Family Court directs, be heard in answer to the suit as if he had appeared on the day fixed for his appearance; and
(b) if it is not proved that the defendant was duly served as provided in subsection (4) of section 8, the Family Court shall issue fresh summons and notices to the defendant and cause the name to be served in the manner provided in clauses (b) and (c) of subsection (1) of section 8.
(6) In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within reasonable*time of the passing thereof to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall after service of notice on the plaintiff, and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him and shall appoint a day for proceeding with the suit provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendant also."
Thus it is evident that for the purpose of filing a written statement the defendant is bound to appear in the Family Court himself and his attendance cannot be dispensed with. In the present case the written statement was filed by Mian Khan, in his capacity as special attorney of the petitioner. Obviously, it was not filed by the defendant/petitioner and did not deserve consideration in the eye of law. The Appellate Court has rightly taken the view that the suit remained uncontested.
4. Even if the statement of Mian Khan D.W.1 as special attorney for the petitioner is taken into consideration it hardly rebuts the evidence of respondent No, 1 . He merely stated in examination- in-chief that he was special attorney of his son who had divorced the plaintiff/respondent No,1 on 4-4-2000; that Talaq was pronounced because the parties could not pull on well together and that his son was residing abroad. In cross-examination he stated that he had submitted the written statement but did not remember whether at the time of submission of power of attorney he was competent to do so or not; that he is an illiterate person and did not remember whether after pronouncement of Talaq his son had gone abroad; that his son had contracted third marriage; that the plaintiff did not remain Ghair Abad for two and a half years, Mst. Falak Naz, respondent No,1 appeared as P.W.1 and stated that she lived in the house of the petitioner only for 15 days and that she was Ghair Abad for the last three years, Her statement was not specifically challenged in cross-examination and would be deemed to have been admitted. Therefore, the appellate Court had rightly held that respondent No,1 was entitled to recover past maintenance for two and a half B years from the petitioner.
5. It may be mentioned at the end that even the present petition does not seem to have been filed by a properly authorised person. The special power of attorney annexed to this petition merely authorises the special attorney to defend and pursue the civil suits filed in the Courts at Gujrat and to attend lower as well as higher Courts and apply to Courts and offices for copies of documents etc. The power to attend the Courts merely authorises the attorney to appear on behalf of the petitioner but does not authorise him to engage a counsel and institute a petition in this Court. The petition merits dismissal on this score as well.
6. For the foregoing reasons, the petition is dismissed in limine.