ABDUL MOMIN through General Attorney Versus Mst. HALEEMA SAADIA

ORDER

SYED ASGHAR HAIDER, J.--- This petition is directed against the judgment, dated 26-7-2006 passed by the Additional District Judge, Sialkot whereby the judgment and decree dated 16-3-2006 passed by the Family Court, Sialkot in a suit for recovery of dowry articles for Rs.2,50,000 was enhanced to Rs.3,79,600.

2. The petitioner was married to respondent No.1, the marriage could not last and ended in divorce. The respondent No.1 filed a suit for recovery of dowry articles or in lieu thereof Rs.5,79,600. The suit was contested by the petitioner/defendant by filing written statement, of the divergent pleading of the parties, issues were framed, thereafter the suit was decreed as prayed for or in lieu thereof to Rs.2,50,000. Aggrieved thereof, the petitioner filed an appeal which after contest was dismissed, primarily on the ground that it was not maintainable and was incompetently filed, discontent, the petitioner filed the present petition.

3. The learned counsel for the petitioner contended that he has been non-suited on the question of maintainability illegally, the power of attorney on the basis of which appeal was filed fully authorized the petitioner's (father) to prosecute it, even otherwise ambiguity, if any stood cured by ratification in form of general power of attorney, dated 15-8-2006, granted by the petitioner, thus, the impugned judgment is not tenable in law.

4. The learned counsel for the respondent No.1 on the contrary, argued that authorization pertained only to a suit for pre-emption and nothing beyond, the present proceedings relate to a family matter, therefore, the power of attorney could not be used for prosecuting the instant matter, therefore, the appeal was rightly dismissed.

5. I have heard the learned counsel for the parties and perused the impugned judgment.

6. The petitioner has been non-suited primarily on Mark "A" (power of attorney) holding that the authorization relates to a pre-emption suit and not the present proceedings, therefore, authorization is not proper. The lower Appellate Court non-suited the petitioner, holding that appeal was incompetently filed, and was thus, not maintainable, but thereafter, it proceeded to appraise evidence of D.W.1 and D.W.2 and non-suited the petitioner on merits. The reasoning therefore, is contradictory, if the appeal was not maintainable then the lower Appellate Court could not have adjudicated it on merits, by venturing to do so, it committed a material illegality, therefore, the judgment is not sustainable. Additionally, the lower Appellate Court dismissed the appeal holding that authorization granted by the petitioner was improper, consequently the petitioner's father could not prosecute the appeal. No opportunity was provided to the petitioner to get rectified the defect if any. Defect in authority of an agent is a mere irregularity which can be cured, thus, lapse does not entail such drastic penalty as dismissal of appeal. I am fortified in this context from the following precedents: Shafique Metal Works and 5 others v. The Bank of Bahawalpur Ltd. Gujranwala PLD 1973 Note 33, Muhammad Khaliq v. Abdullah Khan and 4 others 1987 CLC 1366 and Lt.-Col. (Retd.) P.D. Braganca v. The Border Area Allotment Committee and another 1984 CLC 1479. Therefore, the impugned judgment is also not in consonance with law on this account as well. Resultantly, this petition is allowed, the impugned judgment and decree is set aside, the proceedings are remitted to the lower Appellate Court which shall proceed to decide the matter in accordance with law. No order as to costs.

M.H./A-16/L Case remanded.