P L D 2005 Lahore 326 (PLP)

Sardar Muhammad Aslam Khan Dhukkar for Petitioner. Mumtaz Ahmad Aamir for Respondents. Mst. Yasmeen Shaukat along with Umar Aghar and Ali Hassan minor sons, had filed a suit for grant of maintenance against Muhammad Asghar, present petitioners in the Court of learned Judge Family Court; Sadiqabad. The suit was contested and the learned Judge Family Court had passed a decree for maintenance up to the extent of Rs.1,000 per child, per month for Umar Asghar and Ali Hassan. Up to the extent of Mst. Yasmeen Shaukat, the suit was dismissed. The judgment and decree passed on 5‑12‑2003 was challenged in an appeal by Muhammad Asghar before the learned Additional District Judge Sadiqabad but the learned Additional District Judge was of the opinion that the appeal before that Court was not competent under section 14(2)(c) of the Family Courts Act, 1964, as the judgment and decree was passed up to the extent of Rs.1,000 per month per child which was less than Rs.1,000 This judgment and decree was delivered by the learned Additional District Judge on 31‑5‑2004, hence this writ petition.

2. Learned counsel for the petitioner submits that the words used in section 14 (2) (c) of the West Pakistan Family Courts Act, 1964 are "a decree" which have to be interpreted in accordance with the interpretation put by Peshawar High Court in 1999 MLD 2723 (Khawaja Muhammad v. District Judge Mansehra). As per learned counsel, the total amount awarded through the decree was to be considered for' the purpose of appeal and not the single person granted the amount through a decree. So the appeal was competent before the learned Additional District Judge.

3. Opposing the plea taken by the learned counsel for the petitioner, it has been stated by the learned counsel for the respondent that the learned Additional District Judge had rightly passed the impugned judgment and decree as the amount awarded to each decree holder, was to be considered for the purpose of appeal. He has quoted 2002 CLC 270 (Sharif v. Judge Family Court) and 2004 CLC 637 (Razi Ahmad v. Saima Shafi) to support his contention.

4. I have heard the learned counsel for the parties and have perused the record. I have found that in 2004 CLC.637 (supra), the wording of section 14 of West Pakistan Family Courts Act, 1964 that "No appeal shall lie from a decree passed by a Family Court" were not interpreted. I have already interpreted these words, in which I have taken the view that total sum of maintenance awarded under or through a decree has to be kept in mind while filing an appeal before the learned District Judge. If in a decree, more than Rs.1,000 in toto has been granted, one or it may be two decree holders in a case, the appeal would ,lie before the learned District Judge in accordance with provisions of section 14(2)(c) of West Pakistan Family Courts Act, 1964. In a suit, when there are two or more plaintiffs and each have been granted maintenance of less than Rs.1,000 per month but the total sum of both these plaintiffs comes to more than Rs.1,000, it would be a decree as the defendant has to pay more than Rs.140 through that decree. Each and every plaintiff's maintenance cannot be split up to consider it "a decree" as it would be making of two decrees, which would be against the spirit and plain words used "decree" in the above noted section. So in view of discussed above, this writ petition is accepted and the judgment dated 31‑5‑2004 passed by the learned Additional District Judge, with the regard to the return of appeal is declared illegal and unlawful. Consequently, the appeal filed by Muhammad Asghar before the learned Additional District Judge shall be presumed to be pending for adjudication on merits. H.B.T./M‑945/L Petition accepted.