2022 PLP 444 (YLR)

KH. MUHAMMAD NASEEM, J.

The captioned appeal, by leave, arises out of the judgment passed by the High Court on 30.09.2019, whereby the writ petition filed by the appellants, herein, has been dismissed in limine.

2. The facts necessary for disposal of this appeal are that the plaintiff-respondents filed a suit on 28.11.2015 for recovery of maintenance allowance with effect from 30.04.2014, in the Court of Additional District Judge/Judge Family Court Naseerabad, Patika, against the defendant-appellant No.1 (Muhammad Afzal Khan). Although two other suits; one for recovery of dower by plaintiff-respondent No.1 and other for restitution of conjugal rights by appellant No.1, herein, were also filed, however, the same are not the subject-matter of instant appeal. Through judgment and decree dated 23.05.2017 the learned Family Court dismissed the suit for maintenance allowance, for want of proof. Feeling aggrieved, the plaintiff-respondents, herein, filed an appeal in the Shariat Appellate Bench of the High Court on 01.11.2017, which was partly accepted on 24.01.2018 and the judgment and decree passed by the learned Judge Family Court was modified to the extent of maintenance allowance of plaintiff-respondent No.3 (minor) while declaring him entitled of Rs.5,000/- per month. Thereafter, the respondents-decree holders filed an application for execution on 12.05.2018. The learned executing Court invited objections from the appellant-judgment debtor which were accordingly filed. During the proceedings of execution an objection was raised by the appellant-judgment debtor that according to the spirit of judgment of the Shariat Appellate Bench of the High Court dated 24.01.2018 there is no mentioning of past maintenance allowance, so, the decree-holder is not entitled to recover past maintenance allowance. Vide order dated 14.05.2019, the learned executing Court turned down the aforesaid objection and declared the respondent-decree holders entitled for recovery of past maintenance allowance with effect from the date of institution of the suit. This order of the executing Court was called in question by the appellants, herein, by filing a writ petition. After necessary proceedings, the learned High Court dismissed the writ petition in limine, vide judgment under challenge dated 30.09.2019.

3. Mr. Akhlaq Hussain Mughal, Advocate, the learned counsel for the appellants argued the case at some length and stated that the impugned judgment passed by the learned High Court is illegal and perverse as the same has been handed down without providing the appellants or their counsel an opportunity of hearing. The learned counsel emphasized that the judgment and decree was passed by the Shariat Appellate Bench on 24.01.2018, wherein, no findings pertaining to the past maintenance allowance were recorded, hence, the decree was liable to be executed from the date of its issuance and not from the date of institution of the suit. The learned executing Court fell in error of law while declaring the minor son entitled to receive the past maintenance allowance from 18.04.2015. Likewise, the learned High Court has also failed to rectify the wrong committed by the executing Court. The learned counsel further added that appellant No.1 is continuously paying Rs.5,000/- to the minor son in the light of judgment and decree passed by the Shariat Appellate Bench, hence, the judgment has been implemented in letter and spirit. In the given circumstances, the impugned judgment passed by the High Court is liable to be set-aside while accepting the appeal filed by the appellants.

4. Controverting the arguments advanced at bar by the learned counsel for the appellants, the learned counsel for the respondents while defending the orders passed by the Courts below submitted that according to the settled principle of law the father is bound to maintain his children. As no specific date was mentioned by the Shariat Appellate Bench of the High Court while handing down the judgment and decree dated 24.01.2018, hence, it has rightly been held by the Courts below that the minor son is entitled for maintenance allowance from the date of institution of suit. The impugned judgment of the High Court is well reasoned, hence, calls for no interference. He prayed for dismissal of the appeal.

5. We have heard the arguments of learned counsel for the parties and gone through the record with due care and caution. A perusal of the record reveals that a suit for recovery of maintenance allowance with effect from 30.04.2014 was filed by the plaintiff-respondents, herein, on 28.11.2015, in the Court of Additional District Judge/Judge Family Court Naseerabad, Patika, against the defendant-appellant No.1, herein, (Muhammad Afzal Khan). The learned Family Court through judgment and decree dated 23.05.2017 dismissed the suit for want of proof. The plaintiff-respondents, herein, filed an appeal in the Shariat Appellate Bench of the High Court on 01.11.2017, which was partly accepted on 24.01.2018 and the judgment and decree passed by the learned Judge Family Court was modified to the extent of maintenance allowance of minor son (plaintiff-respondent No.3) while declaring him entitled of Rs.5,000/- per month. Thereafter, an application for execution was filed by the decree-holders on 12.05.2018. During the proceedings of execution an objection was raised by the appellant-judgment debtor that according to the spirit of judgment of the Shariat Appellate Bench of the High Court dated 24.01.2018 there is no mentioning of past maintenance allowance, so, the decree-holder is not entitled to recover past maintenance allowance. The learned executing Court turned down the aforesaid objection and declared the respondent-decree holders entitled for recovery of past maintenance allowance with effect from the date of institution of the suit. This order of the executing Court was called in question by the appellants, herein, by filing a writ petition which has been dismissed in limine through the impugned judgment.

7. The sole proposition involved in this case is "from which date the minor son (plaintiff-respondent No.3) is entitled to receive the maintenance allowance". It appears that the suit for recovery of maintenance allowance was filed on 28.11.2015. The learned Family Court dismissed the suit for want of proof, however, in appeal the learned Shariat Appellate Bench of the High Court modified the judgment and decree passed by the learned Family Court and declared the minor son entitled for recovery of Rs.5,000/- per month as maintenance allowance. Although, the learned Shariat Appellate Bench of the High Court, in its judgment has not specifically mentioned any date due to which the dispute as to payment of past maintenance allowance arose. In our opinion, when there is no mention of any specific date, keeping in view the overall facts and circumstances of the case, the learned Courts below were justified in holding that the minor son is entitled for recovery of maintenance allowance with effect from the date of institution of the suit.

8. In this state of affairs, we have no hesitation to uphold the observations made by the Courts below that the minor son is entitled to receive maintenance allowance from the date of institution of the suit. It may be clarified here that the learned executing Court in its order dated 14.05.2019 has mentioned the date of institution of suit as 18.04.2015, whereas, the suit was filed on 28.11.2015. It appears to be a clerical mistake, hence, for ends of justice the order passed by the executing Court is corrected to this extent and the date of institution of the suit for recovery of maintenance might be read and written as 28.11.2015 instead of 18.04.2015.

9. Although, no legal ground exists for interference in the impugned judgment of the High Court, however, in the interest of justice, keeping in view the financial position of appellant No.1, we deem it appropriate to hold that the past maintenance allowance shall be paid in four equal quarterly instalments. Resultantly, finding no force this appeal is dismissed in the above terms. No order as to costs. SA/16/SC(AJ&K) Appeal dismissed.