P L D 2017 Lahore 787 (PLP)

MUDASSIR KHALID ABBASI, J.

This constitutional petition has been directed against order dated 28.4.2011 passed by the executing court and judgment dated 5.5.2012 passed by appellate Court.

2. Precisely facts of the case are that the petitioner along with his two sisters filed suit for maintenance allowance through their mother. Suit was decreed on 18.3.2008, in the following terms:- "In the light of my findings on above issues the suit to the extent of plaintiff No.1 for recovery of maintenance allowance is hereby dismissed and to the extent of plaintiff 2 to 4 is decreed, they are entitled to recover maintenance allowance from defendant at the rate of Rs.800/- per month per head from the date of institution of this suit till the statutory period of law with 10 % annual increase. Decree sheet be drawn up. File be consigned to the record room after due completion."

3. During the execution proceedings, while deciding an objection on 12.4.2010 execution to the extent of petitioner was dropped on account of attaining the age of majority whereas the remaining decree holders were held entitled. Petitioner filed an application for review of order dated 12.04.2010 on the ground that he is a disabled person and cannot earn his livelihood therefore, entitled for the grant of maintenance allowance. This was contested by the other side and on 28.4.2011 review petition was dismissed. Feeling aggrieved, petitioner filed an appeal which met with the same fate vide order dated 5.5.2012 passed by the learned Addl: District Judge.

4. Learned counsel for the petitioner has argued that since petitioner is blind and due to his disability is not in a position to earn his livelihood, therefore, respondent is duty bound to maintain the petitioner. He has asserted that the courts below have fell in error while passing the impugned order/judgment.

5. On the other hand, learned counsel for the respondent has vehemently opposed this petition stating that the executing Court has no power to review its own order and has rightly declined the review application. Further argued that the executing Court has acted in line with the decree. Therefore, this petition is liable to be dismissed.

6. Arguments heard. Record perused.

7. Critically important aspect of this case is that as to whether learned Judge Family Court/executing Court could pass an order to continue the maintenance of the petitioner, even after attaining the age of majority, keeping in view his disability.

8. Although, in a normal course father is under obligation to maintain his child till attaining the age of majority, however, there is an exception to such rule and that is the disability of a son by infirmity or disease.

9. Petitioner had moved an application before the executing Court for review of order dated 12.4.2010 whereby the maintenance allowance was discontinued to the petitioner on account of attaining majority. Stance taken by the petitioner is that he has lost vision from both eyes and not in a position to maintain himself. Learned lower appellate Court had observed in the impugned judgment dated 5.5.2012, that it was the duty of the appellant to get himself medically examined firstly and then filed such application before the court.

10. In a judgment pronounced by the apex court cited as "Humayun Hassan v. ArsIan Humayun and others" (PLD 2013 SC 557), it has been observed as under: "From the above it emerges, that subject to the conditionalities mentioned therein a father in the normal course is bound to maintain his son(s) only till the time he attains the age of puberty, however, there is an exception to this rule, and that is the disability of the son by infirmity or disease in which case the obligation of the father is extended for his adult son as well."

11. A disability certificate has been produced in this Court issued by the Social Welfare Department which reveals that the petitioner is suffering from diminished vision from both eyes.

12. So far as argument of the counsel for the respondent that Family Court could not review its own order is concerned, suffice it to say that Family Court is a quasi-judicial forum, can regulate its own procedure, the only exception is that it must not be in contravention to any settled principle of law and may not cause injustice to the parties, therefore, Judge Family Court/Executing Court was fully equipped with the powers to review the order, subject matter of this case. Reliance is placed on Muhammad Tabish Naeem Khan v. Additional District Judge Lahore and others (2014 SCMR 1365). In view of above discussion, this petition is allowed, orders dated 12.4.2010 and 28.4.2011 passed by the executing Court/Judge Family Court and judgment dated 5.5.2012 passed by the Addl: District Judge are set aside. Review application filed by the petitioner before the Judge Family Court/ Executing Court shall deemed to be pending and shall be decided on its own merits. Any observation made in this judgment will not influence the Family Court while deciding the application on merits. MQ/A-71/L Petition allowed.