P L D 2005 Lahore 296 (PLP)

(ii) 2002 MLD 784 (Mst. Neelam Nausheen and others v. Raja Muhammad Khaqaan and others).

4. I have heard both the learned counsel at length and perused the record of the case.

5. The cardinal point for determination in this writ petition is as to whether the, appeal could be filed before the learned District Judge or not, when a decree for recovery of maintenance was granted up to the extent of Rs.1000 per month or more to one plaintiff. Another question arises is as to whether the whole amount awarded is to be kept into consideration for the filing of an appeal in the event of according Rs.1000 per month to each plaintiff who are more than one or it has to be examined on the basis of maintenance allowance per person. In 1999 MLD 2723 (Khawaja Muhammad v. District Judge Mansehra) the learned Division Bench from the Hon'ble Peshawar High Court has laid down that a decree granted in the favour of minors, if has fixed the amount of maintenance at the rate Rs.500 per month for each minor and it if calculated for' all the plaintiffs the total amount of maintenance exceeded from Rs.500 per month, the appeal would lie to the District Judge. In other words, the total amount of the decree was made basis for the appeal purposes. The other citation which has been relied upon by the learned counsel for the respondents is of 2002 MLD 784 Mst. Neelam Nausheen and others v. Raja Muhammad Khakaan and others), in which the Hon'ble Judge of this Court had laid down that the right of appeal as contained in section 14 (2) (c) of West Pakistan Family Courts Act, 1964 would be applicable to the judgment‑debtor and not to the decree holder. To say in other words, if the decree granted is less than Rs.500 per month amount prescribed by law prior to ending or West Pakistan Family Courts Act (Amended) 1999 was competently appealable by the plaintiff‑decree holder before the learned District Court for the enhancement of that rate of amount of maintenance and not by the judgment‑debtor. The third citation referred to by the learned counsel for the respondents as 2002 CLC 274 (Muhammad Sharif v. Judge Family Court, Bahawalpur and three others) has not considered the ruling of, 2002 MLD 784 while passing the judgment. Even in this ruling the Hon'ble Judge of this Court has held that Constitutional petition against the judgment and decree of the learned trial Court could not be filed when each minor had been granted decree at the rate of Rs.500 per month. In that case the Hon'ble Judge had dismissed the writ petition holding it to be not maintainable when the amount of Rs.700 was fixed by the learned trial Court as maintenance allowance for the minors. The crux of the above discussion and my conclusion is that:‑ (a) When a decree is granted at the rate of Rs.1000 per month or less, the plaintiff‑decree holder can file an appeal before the learned District Judge for the enhancement of the, rate of that maintenance allowance. (b) In case a decree has been passed against the judgment‑debtor for a sole minor up to Rs.1000 or more than 1000 then the judgment‑debtor would be competent to file an appeal before the learned District Judge. (c) In a situation where a Family Court has awarded decree up to Rs.1,000 or less than Rs.1,000, the judgment‑debtor would not be able to file an appeal before the District Court and the remedy of filing of the writ petition would be available. The interpretation of section 14 (2) (c) has been found by me on the basis of following words:‑‑ Section 14 (2) (c): "No appeal shall lie from a decree passed by the Family Court for maintenance of Rs.1,000 per month." In subsection (2) of section 14 of the West Pakistan Family Courts Act, 1964 the words used are "decree passed". "Decree passed" would mean a decree which has been passed in favour of plaintiff as against the defendant". The word "passed" used in this subsection is of vital importance. The meaning of which found in Black's Law Dictionary are‑‑‑‑Pass, to utter or pronounce, as when the Court passes sentence upon a prisoner. Also to proceed; to be rendered or given, as when judgment is said to pass for the plaintiff in a suit. To have more support for this interpretation, I would like to quote the following authorities of the Hon'ble Supreme Court:‑‑ (i) PLD 1994 SC 870 (Ghulam Hussain and others v. Mushtaq Ahmad and others) (ii) 1992 SCMR 445 (Razi Khan and others v. Syed Karim Shah and others. Therefore, the law expounded by my learned brother Mr. Justice Muhammad Sayeed Akhtar, J in 2002 MLD 784 is supported by the aforesaid rulings. There is yet another legal aspect of the interpretation of these words. The words used in clause (c) of subsection (2) of section 14 is "per month" when the word "decree" is taken with words "per month" it does not mean that the decree is to be per month per person. The decree has to be regarded in toto and the amount as fixed in totality for which the judgment‑debtor is obliged to pay has to be kept in mind. As the decree has fixed Rs.1000 per person, which becomes Rs.2000 for two persons per month, so the decree has to be considered to have been passed for Rs.2000 against the judgment‑debtor. Accordingly, the appeal would lie in such case before the District Court. With these findings, the writ petition is accepted and impugned judgment and decree dated 13‑9‑2003 passed by the learned Additional District Judge is held to be illegal and unlawful. Consequently the appeal filed by the writ petitioner before the learned Additional District Judge shall be considered pending for adjudication. The parties shall appear before the successor Court of learned Additional District Judge on 5‑4‑2004. H.B.T./M‑838/L Petition accepted.