PLJ 2009 Lahore
472
Present: Rana Zahid Mehmood, J.
Mst. AMINA SAEED KHAGA--Petitioner
versus
JUDGE FAMILY COURT, LAHORE
and another--Respondents
W.P. No. 3649 of 2008, decided on 11.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Special power of
attorney in favour of special attorney can be rectified and cured by personal
appearance--Legality--Power of attorney was written on simple paper without payment
of stamp paper--Not verified by Oath Commissioner--Document was found defective
in law--Reservation on signature of petitioner--Validity--Irregularity or
illegality in execution of special power of attorney in favour of special
attorney can be rectified and cured by personal appearance before trial
Court--Case was remanded to trial Court. [P.
473] A
Raja Jahanzeb Akhtar, Advocate for Petitioner.
Respondent No. 2 proceeded ex-parte.
Date of hearing: 11.3.2009.
Order
This is a constitutional petition filed by the petitioner
challenging dismissal of her suit vide judgment and decree dated 31.03.2008
passed by Respondent No. 1/learned Judge Family Court, Lahore which was a suit
for dissolution of marriage with Respondent No. 2, while the suit was dismissed
on the ground that special power of attorney placed on record as Mark-A was
written on simple paper without payment of stamp duty and was also not verified
by the Oath Commissioner, therefore, as the petitioner had not appeared before
the learned Judge Family Court and suit was filed through special attorney as
well, the document stated above was found defective in law, therefore, the
learned Judge observed that had the petitioner appeared before him, the
irregularity and the illegality stated above could be cured. It is also
important to mention that the learned trial Judge had also shown his
reservation on the signatures of the petitioner in favour of the special
attorney.
2. Learned counsel
for the petitioner has submitted that since the petitioner is present in person
in Court today and she can also appear before the learned Judge Family Court,
therefore, any illegality or irregularity highlighted by the learned Judge
Family Court on the special power of attorney can be cured, therefore, petition
may be allowed, case may be remanded to the learned trial Court for proceeding
in accordance with law and petitioner undertakes to appear before the learned
trial Judge. He submitted that a direction may be given to the learned trial
Court to decide the suit within 15-days.
3. Respondent is
proceeded ex-parte as notices were issued to him through TCS and the receipt is
available on record, therefore, as none is present from his side, therefore, he
is proceeded ex-parte.
4. Since the
petitioner is present in person before this Court today and can conveniently
appear before the learned Judge Family Court and the irregularity or illegality
in the execution of the special power of attorney in favour of the special
attorney can be rectified and cured by her personal appearance before the trial
Court, therefore, this petition is accepted and the case is remanded to the
learned trial Court/Judge Family Court to proceed further in accordance with
law after the petitioner appears before him in person and supports the
execution of special power of attorney through her specific statement in
accordance with law
or may seek the indulgence of the
Court by direct appearance and a power of attorney in favour of the counsel.
The trial Court is directed to expedite the trial to conclude the same within
60 days.
(R.A.) Order accordingly
