2009 PLP 1011 (MLD)

PERVAIZ INAYAT MALIK, J.

The petitioner Ameer Khan assails the judgment and decree, dated 22-3-2008 passed by learned Judge Family Court, Burewala vide which suit for maintenance allowance filed by respondent No.2-Lal Bibi has been decreed.

2. Briefly stated facts as those emerge out of this petition are that respondent Mst. Lal Bibi, Ex-wife of the petitioner filed a suit for past and future maintenance on 16-5-2005 in the Court of learned Judge Family Court, Burewala District Vehari alleging therein that she was married to the petitioner 28 years ago and as a result of wedlock between the parties two children were born. The minor girl died whereas minor son is alive and is in her custody; that she was expelled from the house by the petitioner 10/11 years ago in three plain clothes whereafter she was never paid any maintenance allowance either to her or the minor son. The suit was contested by the present petitioner alleging therein that he with the consent of respondent Lal Bibi contracted second marriage about 20 years ago and both the wives have been residing in the same house with him and that he has been maintaining both the wives in accordance with Islamic Law properly. The parties led their respective evidence oral as well as documentary whereafter the suit was decreed vide judgment and decree, dated 17-2-2007 where against an appeal was preferred before the learned Additional District Judge, Burewala and with the consent of the parties the judgment and decree impugned therein was set aside by allowing the application filed by the present petitioner seeking to produce additional documentary evidence subject to payment of cost of Rs.500. The present petitioner was also permitted to amend his written statement to that extent by remanding the suit back to the learned trial Court for fresh decision.

3. In post remand proceedings learned Judge Family Court, allowed the petitioner to amend his written statement and after hearing the learned counsel for the parties, with their consent no additional issue was framed and proceeded to decide the suit on the basis of evidence already recorded. Vide the impugned judgment and decree, dated 22-3-2008 the suit of respondent No. 2 was decreed, where against the petitioner preferred an appeal before the learned District Judge on 15-4-2008 which was withdrawn on 14-11-2008. This petition is directed against judgment and decree, dated 22-3-2008 passed by learned Judge Family Court, which has been filed after about nine months.

4. It is inter alia contended by Mr. Saghir Ahmad Bhatti, learned counsel for the petitioner that in the first round of litigation Mst. Lal Bibi respondent No.2 filed a suit for recovery of maintenance allowance on 16-5-2005 which was decreed by learned Judge Family Court, Burewala, District Vehari vide judgment and decree, dated 17-2-2007 where-against appeal filed by the present petitioner was allowed by the learned District Judge, Vehari at Burewala vide judgment, dated 14-3-2007. Further submits that along with the afore stated appeal an application was also filed before the learned appellate Court with the prayer that he may be allowed to file amended written statement before the learned Judge Family Court, which too was allowed and the learned appellate Court in remand order has observed in categorical terms that if in the amended written statement, any fresh point is urged in that eventuality learned Judge Family Court, shall frame additional issue and shall also allow the parties' to lead evidence in support of their respective contentions. Further submits that the amended written statement was filed wherein a new point was urged to the effect that petitioner also divorced respondent No.2 Mst. Lal Bibi which became effective from 1-10-2005. The learned Judge Family Court, it is averred that instead of framing an additional issue proceeded to direct the parties to produce evidence. The parties in compliance whereof did produce evidence in the shape of affidavits. The parties in spite of being afforded an opportunity of cross-examination opted not to avail the same and the learned Judge Family Court, on the basis of oral as well as documentary evidence decreed the suit filed by respondent No.2 vide judgment and decree, dated 22-3-2008.

5. In response to Court quarry as to what prejudice has been caused to him by not framing additional issue, he submits that the learned Judge Family Court, while decreeing the suit has granted an additional amount of Rs.28,000 only to the petitioner, which according to the learned counsel for the petitioner is not in accordance with the evidence led by the parties and it is a case of misreading and non-reading of the evidence.

6. I have heard learned counsel for the petitioner and with his able assistance have also minutely gone through the record.

7. No doubt, law of limitation is not attracted but principle of laches do apply. On merits I find that the learned Judge Family Court, has exhaustively dealt with all the issues with sound reasons. The emphasis of learned counsel for the petitioner primarily is on the point that in post remand proceedings learned Judge Family Court, has failed to frame an additional issue in compliance with the remand order passed by learned Additional District Judge, therefore, the impugned judgment is not sustainable at this score alone, answer to which can also be found in the impugned judgment itself. In para. 3 it is in categorical terms mentioned that with the consent of the learned counsel for the parties no additional issue was framed. Not even a single word has been uttered by the learned counsel to controvert the observation so made by the learned Judge Family Court. Now it is well settled law that a party cannot be allowed to approbate and reprobate simultaneously. Before the learned Judge Family Court, learned counsel, gave a clear consent and for that reason no additional issue was framed, even otherwise by non-framing of any additional issue no prejudice has been caused to either of the parties, for the simple reason that the entire controversy revolves around the issues which have already been framed, therefore, I am of the considered view that even if any issue was to be specifically framed as is being agitated by the learned counsel for the petitioner, the same caused no prejudice to either of the parties and has not any way affected the impugned judgment or interest of any of the parties. For all practical purposes the learned Judge Family Court has attended to all substantial points while passing the impugned judgment. As observed in preceding paras, the additional issue was not framed with the consent of parties, thus subsequently the petitioner cannot be allowed to resile from his commitment, By now it is well-settled principle of law that once a mode/procedure is adopted by the Court on the request of the parties and an order or judgment is passed in pursuance thereof the parties are bound by it and are estopped from assailing the such mode or judgment subsequently. In my view I seek guidance from 1999 CLC 1371 "Muhammad Hussain v. Muhammad Taqi."

8. For what has been discussed above I am not inclined to interfere in the well reasoned judgment passed by learned trial Court which is upheld. This petition being devoid of any merits is hereby dismissed in limine on the principles of laches as well as on merits. H.B.T./P-107/L Petition dismissed.