1994 PLP 574 (MLD)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a suit for maintenance filed by respondents Nos.1 and 2, who are the sons of the petitioner, against him which was decreed by the learned Family Judge on 19-6-1989 and the petitioner was directed to pay arrears of maintenance with effect from 1-8-1985 at the rate of Rs.3,000 per month and also Rs.4,000 per month as future maintenance. This decree of the learned Family Judge was maintained in appeal by the learned Additional District Judge, Lahore, on 14-1-1990, when the appeal filed by the petitioner was dismissed.

2. It is contended by learned counsel for the petitioner that the rate, at which maintenance has been fixed by Courts below, is exorbitant and it is beyond the means of the petitioner to pay the maintenance at that rate. In this behalf, he refers to F.xh.D52, copy of the assessment order of the Income Tax Officer, to show that the petitioner was earning Rs.2,000 per month. It is also complained that the Appellate Court has failed to decide this issue in accordance with law.

3. Learned counsel for the respondents, on the other hand, supported the impugned judgments by contending that the petitioner has means to pay maintenance at the rate fixed by the learned Courts below, as he does his business at Brandreth Road, Lahore. 4. ' From a perusal of the judgment of the learned Additional District Judge, it is evident that as the all important question before him regarding the rate of maintenance which was dependent upon monthly income of the petitioner, has not given the consideration, which it deserved, unfortunately the matter was decided in a cursory and slipshod manner. There is no determination of the monthly income of the petitioner at all nor has the evidence on record been appraised. The appeal of the petitioner has, as such, A not been decided in accordance with law. In view of what has been stated above, this petition is allowed, the judgment and decree dated 14-1-1990 of the learned Additional District Judge are declared to be without lawful authority and of no legal effect, with the result that the appeal filed by the petitioner shall be deemed to be pending before the learned Additional District Judge, Lahore, and shall be decided afresh in accordance with law. Learned counsel for the petitioner has undertaken that during the pendency of the appeal before the Additional District Judge, he shall continue to pay maintenance at the rate of Rs.2,000 per month before the 10th day of each. The parties shall appear before the District Judge, Lahore, on 18-4-1993, who may either hear. the appeal himself or entrust it to an Additional District Judge. As the dispute arises out of a maintenance matter, the appeal shall be decided within the month of April, 1993. H.B.T./Z-71/L Petition allowed.