PLJ 2012
Present: Ayesha
A. Malik, J.
MUHAMMAD
IQBAL--Petitioner
versus
Mst. NASREEN
AKHTAR--Respondent
W.P. No. 8293 of
2012, decided on 16.4.2012.
Constitution of
----Art.
199--W.P. Family Courts Act, 1964--S. 17--Civil Procedure Code, (V of 1908), S.
11--Principle of resjudicata--Applicability--Constitutional
petition--Suit for recovery of maintenance allowance was decreed--Thereafter
suit for enhancement of maintenance allowance providing for enhanced
maintenance of Rs. 4000/- p.m. with 5% annual increase from date of institution
till legal limitation of each--No bar in law against filing a fresh suit for
enhancement of maintenance allowance due to change in circumstances, change in
cost of living and additional needs of minor which father was under legal obligation
to provide--Validity--In a suit for enhanced maintenance, growth of children,
the cost of living, change in status of the parties, change in expenditures
incurred based on needs of children are some of factors which either bring
about change of cause of action or may make out even fresh cause of action for
children to demand enhanced maintenance allowance--Fresh proceedings for
maintenance allowance are maintainable before Family Court--Since enhanced
maintenance was not a matter in issue between the parties, hence principle of
res judicata will not apply. [P. 526] A
----S.
17--Constitution of
1999
CLC 1668, rel.
Maintenance
Allowance--
----Unrealistic
approach--Father was bound to maintain minor--Validity--Maintenance allowance
should remain fixed throughout growing period of minor or that 5% increase
should be considered sufficient--Father is legally bound to maintain minor in
terms of requirement of minor and cost of living. [P. 526`] C
Mr. Muhammad Ehsan Gondal, Advocate for
Petitioner.
Date of hearing:
16.4.2012.
Order
This petition
impugns the judgments and decrees dated 25.07.2011 and 19.01.2012 passed by
Judge Family Court and Addl: District Judge, Mandi Baha-ud-Din
respectively as there are concurrent findings against the Petitioner.
2. Brief facts of the case are that Respondents
No. 1 to 4 filed a suit for recovery of maintenance allowance, which was
decreed on 26.02.2008 providing maintenance at the rate of Rs.2000/- per month.
Thereafter, they filed a suit for enhancement of maintenance allowance on
05.04.2010, which was decreed on 25.07.2011 providing for enhanced maintenance
at the rate of Rs.4000/- per month with a 5% annual increase from date of
institution till legal limitation of each. Hence this writ
petition.
3. Learned counsel for the Petitioner contends that
the decree issued on 24.02.2008 has attained finality,
hence the principle of `resjudicata' applies. Further
contends that in view of the said principle the Respondent was not entitled to
seek enhancement of maintenance allowance, that too within a period of two
years. He relied upon Section 17 of the Family Court Act, 1964 which he states
provides for the principle of res judicata and upon
the Schedule which does not provide for a suit for enhancement of maintenance.
4. Heard the learned counsel for the Petitioner
and reviewed the record available on the file.
5. The contention of the learned counsel for the
Petitioner that the principle of res judicata will
apply to order dated 26.02.2008, is legally flawed as the principle of res judicata will not apply to suit for enhancement of
maintenance since the issues pertaining to the enhanced maintenance were not in
issue between the parties in the previous suit. There is no bar in law against
filing a fresh suit for enhancement of the maintenance allowance due to change
in circumstances, change in cost of living and additional needs of the minor,
which a father is under legal obligation to provide. Reliance is placed on
Muhammad Ashraf vs. Mst, Nusrat Bibi and 3 others (2010
CLC 1411), In the case of Muhammad Akram vs. Addl: District Judge and others (PLD 2008 Lahore 560), this
Court has held that Section 11 of the C.P.C in relation to the cause of action
of suit codifies the doctrine of res judicata which operates
when there is
a judgment between the same
parties and it prevents a fresh suit between them regarding the same matter. In
a suit for enhanced maintenance, the growth of the children, the cost of
living, change in the status of the parties, change in the expenditures
incurred based on the needs of the children are some of the factors which
either bring about a change of the cause of action or may make out even a fresh
cause of action for the children to demand enhanced maintenance allowance. Thus
fresh proceedings for maintenance allowance are maintainable before the Family
Court. Since enhanced maintenance was not a matter in issue between the
parties, hence, the principle of res judicata will
not apply.
6. On the issue whether a suit for enhancement
of maintenance is maintainable under the Schedule, the answer is that the same
is maintainable. The Schedule provides for the matter over which the family
Court should have jurisdiction. Maintenance is provided at Serial No. 3. As
such there is no bar on filing a suit for enhancement of maintenance. There are
bound to be changes in the circumstances and changes in the requirements of the
children. Naturally, as the children will grow their needs will also grow.
Reliance is placed on a case titled Arab Mir Muhammad Vs.
Mst. Iram Iltimas and 4 others (1999 CLC 1668). It is noted that this
is an unrealistic approach that the maintenance allowance should remain fixed
throughout the growing period of the minor or that the 5% increase should be
considered sufficient. A father is legally bound to maintain the minor in terms
of the requirement of the minor and the cost of living.
7. For the forgoing reasons, the learned Court
has exercised the powers in accordance with law. There is no illegality in the
impugned orders, which merit interference by this Court in the exercise of its
constitutional jurisdiction. The writ petition being without substance is
hereby dismissed.
(R.A.) Petition dismissed