2011 MLD 991 (PLP)

SYED AKHLAQ AHMAD, J.

Through this constitutional petition, Munawar Rasul/petitioner/defendant has sought indulgence of the 'court to set-aside the interim orders dated 15-11-2010 and 24-12-2010 passed by the learned Judge Family Court Lahore whereby his right to defend was closed and his application for setting-aside the said order was dismissed..

2. Brief facts of the case according to the writ petition are that respondents Nos. 1 and 2/Hafsa Rasul and Ayma Rasul are minor daughters of Munawar Rasul petitioner/defendant. They filed suit for recovery of maintenance against their father. It is stated that the petitioner is paying interim maintenance to the respondents as per order of the court. On 15-11-2010, the case was fixed for filing the reply of application for additional evidence moved by the petitioner. The petitioner appeared in the court and told his presence to the Reader but he did not mark his presence on the order sheet. After noting the next date as 30-11-2010, the petitioner left the trial court. On 30-11-2010 when he appeared in the court, it transpired that his right of defence has been struck off by the learned Judge Family Court on 15-11-2010. On 30-11-2010, the petitioner moved an application for setting-aside the order dated 15-11-2010 and for proceedings of the case on merits. However, after getting its reply from respondents Nos. 1 and 2, learned Judge Family Court dismissed his application vide his order dated 24-12-2010. Hence, this writ.

3. Learned counsel for the petitioner contends that the learned trial court has mis-read its own order sheet because as per record, the case was not fixed for depositing the interim maintenance on 15-11-2010. It was only fixed for filing the reply of the application. It is claimed that the petitioner has been regularly paying the interim maintenance of respondents Nos. 1 and 2 without fail but the learned trial court mis-read the record and passed a harsh order against him. Right of defence is the basic and fundamental right of the petitioner to defend him before the court by way of filing written statement and producing his evidence but the impugned orders amount to depriving the petitioner of his basic right. It is, therefore, prayed that the writ petition may be accepted, impugned orders dated 15-11-2010 and 24-12-2010 be set- aside being illegal and against the record.

4. I have heard the arguments of the learned counsel for the petitioner and have also gone trough the documents available on the file.

5. Impugned order dated 15-11-2010 passed by the learned Judge Family Court Lahore reads as under:-

6. Operative para of the impugned order dated 24-12-2010 passed by the learned Judge Family Court reads as under:-- "Arguments heard. Record perused. Perusal of record shows that the interim maintenance allowance was fixed in this case on 15-11-2010 and the petitioner/defendant has not paid interim maintenance allowance for the months of May, July, August and November, 2010. Furthermore, since this court being Family Court does not have the power to review its own order, hence application in hand is dismissed for want of jurisdiction. Now to come up for documentary evidence of the plaintiff on 12-1-2011 "

7. The minor daughters of the petitioner were allowed interim maintenance @ Rs.2,000 per head per month by the court vide order dated 15-12-2009 which was effective from the month of December, 2009 and onward till the decision of main suit. Perusal of the order sheet reveals that the petitioner has not paid interim maintenance to his daughters for the month of March, May, July, August and November, 2010. On the pointation of the learned counsel for the respondents Nos. 1 and 2, learned Judge Family Court vide order dated 15-9-2010, directed the petitioner to pay the total outstanding interim maintenance allowance to the respondents on the next date of hearing i.e. 27-9-2010. However, this order was taken very lightly by the petitioner. He neither complied with this order and also became absent from the court on 15-11-2010 Consequently his right to defend was struck off by the learned Judge Family Court Lahore vide order dated 15-11-2010. The order passed by the learned Judge Family Court is admittedly within its authority under section 17-A of the West Pakistan Family Courts Act, 1964.

8. Learned counsel for the petitioner failed to point out any illegality or infirmity in the impugned orders dated 15-11-2010 and 24-12-2010 passed by the learned Judge Family Court Lahore calling for interference by this Court in exercise of its constitutional jurisdiction. The writ petition is, therefore, not maintainable and the same is dismissed in limine. A. R.K./M-67/L Petition dismissed.