2019 PLP 1604 (YLR)

MUZAMIL AKHTAR SHABIR, J.--Through instant constitutional petition, the petitioner has called in question the judgment and decree dated 20.03.2017 passed by Judge Family Court, Layyah whereby the suit for recovery of maintenance allowance filed by respondents Nos. 2 to 5 ("respondents") was decreed against the petitioner.

2. Brief facts of the case are that respondents Nos. 2 to 5 filed a suit for recovery of maintenance allowance against the petitioner which was ex-parte decreed by the Judge Family Court, Layyah vide judgment and decree dated 06.02.2014 whereby the respondents were held entitled to recover Rs.10,000/- per month from the date of institution of the suit with 10% annual increment whereas prayer with regard to past maintenance allowance was declined. The petitioner filed an application for setting aside the said judgment and decree but the same was dismissed on 08.02.2016. Feeling aggrieved of the said order, the petitioner preferred an appeal which was allowed by the appellate court vide judgment dated 14.07.2016 by remanding the matter to the trial court for decision afresh and directing the petitioner to pay Rs.2,000/- per month for each respondents as interim maintenance allowance till final disposal of the suit. Feeling aggrieved of the said judgment, the respondents filed a constitutional petition (W.P. No. 13342 of 2016) which was disposed of vide order dated 19.01.2017 by fixing the maintenance allowance at the rate of Rs.5,000/- per month for each respondents with effect from 01.01.2015 till 31.12.2016 and the matter was remanded to the trial court with a direction to decide the same within two months. The trial court after recording evidence of the parties vide judgment and decree dated 20.03.2017 decreed the suit of the respondents at the rate of Rs.3,500/- per month each with 15% annual increase. The said judgment and decree is under challenge through instant constitutional petition.

3. The learned counsel for the petitioner has argued that the suit has been decreed by the trial court without keeping in view the financial status and paying capacity of the petitioner; that the impugned judgment and decree has been passed without properly appreciating the evidence available on record, therefore, the same is liable to be set-aside.

4. Conversely, learned counsel for the respondents has argued that in earlier round of litigation, the petitioner himself requested to dispose of the matter by modifying the judgment dated 14.07.2016 passed by the appellate court to the effect that the petitioner shall pay Rs.5,000/- per month to each minor as interim maintenance allowance from 01.01.2015 till disposal of the suit, therefore, he is in a position to pay the decreed maintenance allowance to the respondents.

5. Heard. Record perused.

6. Perusal of the record shows that the trial court has taken into consideration the entire evidence available on record as well as the financial status of the petitioner before fixing maintenance allowance at the rate of Rs.3,500/- per month for each of the respondents and the said finding of fact cannot be set-aside unless some mis-reading or non-reading of the record is shown to exist which has not been done. Even otherwise, having himself admitted in the afore referred constitutional petition (W.P. No. 13342 of 2016) that he can pay Rs.5,000/- per month to each of the minors as maintenance allowance from 01.01,2015 till disposal of the suit, the petitioner is now estopped to take plea of financial status contrary to his earlier statement. Even otherwise, this Court in its constitutional jurisdiction does not ordinarily reappraise the evidence and substitute findings of facts recorded by the trial court nor does it give its opinion regarding quality or adequacy of the evidence merely on the ground that on reappraisal another view is possible. The assessment and appraisal of evidence is the function of the family court which is vested with exclusive jurisdiction in this regard and finding of fact determined by a court of fact cannot be lightly set-aside by this Court in its constitutional jurisdiction. Reliance in this regard is placed on the judgment reported as Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522). The petitioner was required to show some illegality or jurisdictional defect committed by the courts below in order to make its case entertainable by this Court which has not been done.

7. For what has been discussed above, this petition being devoid of merit is dismissed. SA/K-3/L Petition dismissed.