PLJ 2015
[
Present: Muhammad
Sajid Mehmood Sethi, J.
MUHAMMAD BAKHSH--Petitioner
versus
MUHAMMAD JUNAID and 3 others--Respondents
W.P. No. 8753 of 2015, decided on 11.6.2015.
Civil
Procedure Code, 1908 (V of 1908)--
----S. 11--Constitution
of
[P. 1168] A
Mian Kamran Bin Lateef, Advocate for Petitioner.
Mr. Aziz-ur-Rehman, A.A.G. on Court’s call.
Date of hearing: 11.6.2015.
Order
Brief facts, out of which present writ petition arise, are that petitioner divorced his wife namely Mst. Rehmat Elahi, owing to family disputes. She got custody of Respondent No. 1 and, thereafter, filed suit for recovery of maintenance allowance before learned Judge Family Court, Khanewal, which was decreed awarding him Rs. 700/- per month with 10% increase per annum as maintenance allowance. The said judgment was upheld by learned Additional District Judge, Khanewal. Respondent No. 1 filed W.P. No. 1143 of 2009 before this Court, which culminated into a settlement between the parties, which was recorded vide order dated 01-07-2009, in the following terms:--
“(i) That quantum of maintenance be enhanced from
Rs. 700/- per month to Rs. 800 per month henceforth.
(ii) Respondent No. 3 will pay past maintenance for three years prior to the institution of the suit to the tune of Rs. 42000/-. The amount of past maintenance shall be paid by Respondent No. 3 in the following manner:
(a) Rs. 10,000 within three weeks from today.
(b) Thereafter balance amount through monthly installments of Rs. 2500/- each.”
Thereafter, Respondent No. 1 again filed suit for recovery of maintenance allowance on 18.03.2013 before learned Judge Family Court, Khanewal, and the petitioner filed written statement. After framing issues, evidence of the parties was recorded by the learned Judge Family Court. That suit was also decreed and monthly maintenance of Respondent No. 1 was enhanced and fixed as Rs. 2500/- per month with 10% increase per annum vide judgment and decree dated 04.06.2014. The said judgment and decree were assailed through appeal before learned ADJ, Khanewal and the same were also upheld through judgment and decree dated 13.04.2015. Now, through this writ petition, both the aforesaid judgments and decrees have been challenged.
2. Learned counsel for the petitioner contends that once the matter had already been decided and finalized by the Hon’ble High Court vide judgment dated 01.07.2009, the fresh suit was not competent and the same was filed by concealing the factum of final determination by this Court through the aforesaid judgment. Further contends that the learned Courts below have not applied their judicial mind and have committed irregularity while passing the impugned judgments and decrees in presence of the aforesaid judgment passed by this Court. The suit of respondent was liable to be dismissed.
3. Heard.
4. The maintenance
allowance of respondent fixed in judgment dated 01.07.2009 is not sufficient
due to hiking prices and growing needs of the minor. Respondent No. 1 is a
student and according to the market prices prevailing now a
days, the sum of
Rs. 800/- per month fixed by this Court in W.P. No. 1143/2009 is insufficient.
It is an established principle of law that under changed circumstances with the
passage of time, suit for enhancement of maintenance is maintainable. Section
11 of CPC is not applicable to the suit for enhancement in the rate of maintenance
allowance. In the present case, the rate of maintenance allowance fixed in the
year 2009 appears to be nominal now. Learned trial Court and ADJ both properly
appreciated the evidence brought on record and arrived at just conclusion. The
learned ADJ while upholding the judgment of the learned trial Court, observed
as follows:--
“- - - - - It is clear that at that time minor was of about 8 years whereas, now he is 17 years old and is getting education in high school in higher class. Undoubtedly, now much more expenditures took place than those were earlier. Although respondent has submitted that he is a poor man and cannot bear expenditures at the rate claimed by respondent/minor in his plaint i.e. at the rate of rupees five thousand per month but learned trial Court has not believed the averment of plaint and has evaluated available evidence led by the parties and has considered the fact of class of student/respondent in which he is studying and also considered the status of appellant Muhammad Bakhsh and has fixed maintenance allowance Rs. 2500/-. Respondent is a grown up boy and needs more amount than it was fixed 7/8 years back. Besides, this value of daily used items has been increased incredibly during this period which are to be considered while fixing the maintenance allowance. Further more, appellant is father of respondent Muhammad Junaid minor and he is duty bound to bear expenditures of minor in education, health and other arrears of life of minor. Learned trial Court was justified in enhancing the amount of maintenance allowance. Learned counsel for the appellant has failed to high-light any misreading or nonreading of evidence by the learned trial Court.
6. The upshot of above discussion is that impugned judgment and decree is apt to the facts and circumstances of the case which is upheld and appeal being devoid of any force is hereby dismissed.”
The above findings are supported by the case law on the subject i.e. cases titled “Ejaz Ahmed Vs. Judge, Family Court and 5 others” (2005 CLC 1913), “Muhammad Ali Vs. Judge Family Court, Depalpur and 2 others” (2010 YLR 520), “Malik Ahmed Nawaz Awan Vs. Fariha Malik and another” (2011 YLR 435), “Muhammad Iqbal Vs. Mst. Nasreen Akhtar” (2012 CLC 1407) and “Muhammad Islam Vs. Mst. Rashdah Sultana and 4 others” (2013 CLC 698).
5. In the case of
Muhammad Iqbal (Supra), this Court observed in
“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 in 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 v. 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.”
6. Impugned judgments and decrees have been passed by the learned Courts below, after analyzing and appreciating the evidence brought on record and this Court, in exercise of writ jurisdiction, cannot substitute the findings of both the Courts below unless they are against the law and evidence brought on record and is a result of erroneous exercise of jurisdiction.
7. In view of the aforesaid reasons, this writ petition has no merit and the same is therefore dismissed in limine.
(R.A.) Petition dismissed