2017 PLP 213 (YLRN)

MOHAMMAD AZAM KHAN, C.J.

Respondents Nos.1 and 2, filed an application for maintenance charges in the Family Court, Dudyal, alleging therin that Mazhar Iqbal, defendant-appellant, herein, was married to Zaheen Akhtar, their mother. Out of the wedlock two children, the minor applicants were born. The defendant-appellant, herein, ousted their mother along with the children 6 years back. Since then they are living along with their mother in the house of their grandparents. The defendant-appellant, herein, has contracted second marriage and has not paid maintenance charges. The maintenance allowance amounting to Rs.15,000/- per month were claimed. The trial Court treated the application as a suit. Mazhar Iqbal, also filed an application for custody of the minors. Both the suit and the application were consolidated by the trial Court and after seeking written statement and recording of the evidence of the parties, passed a decree in favour of respondents Nos.1 to 3 on 17th December, 2013, to the effect that they are entitled to past maintenance of 6 years @ Rs.2000/- per month total amounting to Rs.234,000/-, and for future; to plaintiff No.1 till attaining majority; plaintiff No.2 till she contracts marriage and plaintiff No.3 till she remains wife of the defendant @ Rs.5000/- per head with 10% yearly increase, while the application for custody of the minors was dismissed. Dissatisfied, the appellant, herein, filed an appeal in the Azad Jammu and Kashmir Shariat Court. A learned Judge in the Shariat Court through judgment and decree dated 13 September, 2015, dismissed the appeal, hence, this appeal by leave of the Court.

2. Mr. Kamran Taj, Advocate, the counsel for the appellant, argued that the judgment of the trial Court as well as the Shariat Court is against law and the record. The application for maintenance charges was filed by two minors, Afzal Iqbal and Areeba Zaheen, through their mother, Zaheen Akhtar. No application was filed by the wife, Zaheen Akhtar, but the Family Court also awarded maintenance charges to Zaheen Akhtar. The Family Court had no power to suo motu award the maintenance charges without any application. The learned counsel forcefully argued that the past maintenance were not claimed, but the Court awarded the past maintenance charges. The learned counsel argued that the trial Court while recording findings on issue No.2 has observed that the suit for past maintenance is vague because of incompetence of the counsel, but awarded the past maintenance charges against the law, thus, the same could not be awarded. The Court has to decide the case on the basis of the pleadings of the parties. The judgment and decree of the Family Court is against the pleadings of the parties and the Shariat Court without considering this aspect of the case, dismissed the appeal. The learned counsel relied upon the cases reported as Azad Govt. and 6 others v. Faqir Hussain Shah and another (2004 SCR 23), Javed Iqbal and 5 others v. Social Welfare Department and 5 others (2004 SCR 435), Saleem Akbar Kayani v. Dr. Rehana Mansha Kayani and 4 others (2016 SCR 1), Mumtaz Hussain and 11 others v. Muhammad Fazil Khan and another 2001 YLR 3248. The learned counsel further argued that no suit was filed by the plaintiffs-respondent herein, instead an application was filed and on an application under section 488, Cr.P.C., maintenance charges can be awarded @ Rs.700/- per month. The learned counsel lastly argued that the plaintiff-respondent No.1, herein, has attained majority, therefore, he is no more entitled for maintenance charges. He relied upon case titled Abdul Khaliq v. Sidra Khaliq and 3 others (2014 SCR 280). He requested for acceptance of appeal. In the case reported as Mumtaz Hussain and 11 others v. Muhammad Fazil Khan and another 2001 YLR 3248, this Court laid down rule of law that negligence of the counsel shall be deemed to be a negligence of party. In the case reported as Azad Government and 6 others v. Faqir Hussain Shah and another 2004 SCR 23), this Court observed that a party is not expected to go beyond its pleadings and lacunas cannot be filled up at the stage of arguments without specifically taking a page in the pleadings. In the case reported as Javed Iqbal and 5 others v. Social Welfare Department and 5 others (2004 SCR 435) it was observed by this Court that it is a settled principal of law that a party demanding anything from the Court must plead the same in its pleadings. In the case titled Saleem Akbar Kayani v. Dr. Rehana Mansha Kayani and 4 others (2016 SCR 1) this Court observed that when an amendment is brought in a suit the other party should be provided an opportunity to file written statement. Without providing opportunity for filing written statement to a party, amendment in the suit is violation of constitutionally guaranteed fundamental rights of a citizen. In the case reported as Abdul Khaliq v. Sidra Khaliq and 3 others (2014 SCR 280), while dealing with the amendment made in Cr.P.C. through the Adaptation Act, 2001, this Court observed that provisions of section 488, Cr.P.C. are intact. 3 While controverting the arguments, Haji Ch. Muhammad Anwar, Advocate, the counsel for the appellants-respondents, herein, defended the judgment of the Shariat Court on all accounts and requested for dismissal of the appeal.

4. We have heard the learned counsel for the parties and also perused the record. Respondents Nos. 1 and 2 filed an application for maintenance charges in the Family Court, Dudyal on 17th June, 2003. The application has been filed through their mother. The Family Court treated the said application as plaint and issued notice to the defendant-appellant, herein, for filing written statement. It was argued by Mr. Kamran Taj, the counsel for the appellant that no suit was filed for maintenance charges. Only an application was filed for maintenance charges. An application for maintenance charges lies under section 488, Cr.P.C. and under section 488, Cr.P.C. maintenance charges amounting to Rs. 700/- per head, per month can be granted. We have carefully perused the record. Although, in the heading of the suit/application the word "application" is written but the Judge Family Court treated the application as suit and ordered the defendant to file written statement and the case was decided as suit for maintenance charges.

5. No application was filed by Zaheen Akthar, the mother of the minors. The Family Court awarded the maintenance charges apart from the minors to their mother Zaheen Akthar too, without filing any suit. A Court of law has to decide the matter which is brought before it, the matter which was not before a Court cannot be decided. The suit was filed for maintenance charges only by the minors. No suit was filed by Zaheen Akhtar, their mother. The decree passed by the Family Court and maintained by the Shariat Court to the extent of Zaheen Akhtar is against law and not maintainable.

6. Mr. Kamran Taj, Advocate, the counsel for the respondent has strenuously argued that no past maintenance charges were claimed by the plaintiffs-respondent, herein, but he Family Court awarded the past maintenance charges illegally. A Court has to decide the case on the basis of pleading of the parties. This Court in the case reported as Azad Government and 6 others v. Faqir Husasin Shah and another (2004 SCR 23), laid down rule of law that a judgment has to be passed on pleadings of the parties, a Court cannot travel beyond pleading of the parties. The same view was reiterated in the case reported as Javed Iqbal and 5 others v. Socail Welfare Department and 5 others (2004 SCR 435) wherein, in para 7 it was observed as under:- "7 .. At the time of arguments in that appeal, the learned counsel representing the appellants craved for issuance of direction to the official respondents either to acquire the land in accordance with law or to put the appellants into the possession of the remaining land which was not sold by the deceased allottee, Khawaja Attaullah, to the Government. This Court refused to issue such direction on the ground that the request was beyond pleaded facts. No proper advice was tendered to the appellants to seek amendment in the writ petition, therefore, this Court was justified to refuse them the prayer made before it as it is a settled principle of law that a party before demanding anything from the Court must plead the same in its pleadings..." The plaintiffs-respondents, herein, in their application, which was filed through their mother alleged that the defendant-appellant, herein, ousted them 6 years back from his house and has not paid any maintenance charges. In para 6, it was averred that the plaintiffs-respondents, herein, a number of times, asked the defendant-appellant, herein, to pay the maintenance charges of the minors but he refused to pay the same. The following prayer was made:- The trial Court awarded the maintenance charges of the past period on the ground that it is proved from the evidence that the plaintiff-respondent, herein, were ousted from the house 6 years back, therefore, they are entitled for maintenance charges of the past period. 6(sic). From the combined reading of the whole the plaint, it is evident that the plaintiffs-respondents, herein, have not claimed the past maintenance charges. The trial Court recorded findings on issue No.2 in the following words:- It is crystal clear from the findings recorded by the trial Court that past maintenance charges were not claimed by the plaintiffs-respondents, herein. The trial Court awarded the past maintenance charges only on the ground that ousting of the plaintiffs-respondents, herein, from the house of the defendant-appellant, herein, 6 years back is proved and it is due to incompetence of the counsel that they failed to demand the past maintenance charges. The law is settled on the point that the judgment cannot be delivered in vacuum. Only such relief can be granted to a party which is claimed by him. The past maintenance charges were not prayed for. Without specific prayer, the past maintenance charges cannot be granted. We have also considered the arguments of the counsel for the defendant-appellant, herein, that plaintiff-respondent No.1 has attained majority, therefore, he is no more entitled for maintenance charges. The maintenance charges have been granted to respondent No.1 till he attains majority, thereafter, he will not be entitled to receive the same after attaining majority. The result of the above discussion is that the appeal is party accepted. The judgment and decree of the Family Court as well as the Shariat Court is amended. The plaintiffs-respondents Nos.1 and 2 are entitled for maintenance charges from the date of institution of the suit i.e. 7th June, 2013 @ 5000/- per head per month with 10% increase per year till respondent No.1 attaines majority. The decree to the extent of past maintenance charges as well as to the extent of respondent No. 3 is set aside. No order as to costs. MQ/46/SC(AJ&K) Order accordingly.