2002 PLP 1341 (YLR)

(b) to order the defendant (petitioner herein) to pay Rs.5,000 per month to the plaintiff No.1 (respondent No.3 herein) and this amount may increase for Rs.1,000 per annum till her marriage; (c) to order the defendant (petitioner) to pay Rs.5,000 per month to plaintiff No.2 (respondent No.4 herein) and this amount may increase for Rs.1,000 per annum till his majority; (d) Cost of the suit and any other relief or reliefs which this Hon'ble Court tray deem fit and proper in the circumstances of the case. The petitioner filed written‑statement denying all the allegations levelled against him. He stated that his ex‑wife voluntarily surrendered and handed over the physical custody of respondents Nos.3 and 4 to him, which fact was also admitted by her before the Punchayat Committee on 12‑12‑1995, but on 14‑2‑1996 she, with mala fide intention, got their custody not only against her undertaking/compromise but also attempted to black mail him just to get money in the names of the minors. It was further stated that mother of the children also filed suit for recovery of maintenance at Liya Multan vide Suit. No.41 of 1996 which was subsequently dismissed. However, petitioner admitted that due to aforesaid illegal acquirement of the custody of the minors by his ex‑wife and their shifting to Liya he could not contact with the minors. He admitted to the extent that the minors were getting said education but after getting minors custody through aforesaid illegal means she is not entitled to get their maintenance. It was further stated that petitioner also filed Guardian and Wards proceedings before the VIIIth Senior Civil Judge, Karachi East vide Guardian and Wards Application No. 113 of 1999. In this background, the learned trial Court framed the following issues: (i) Whether the defendant is earning Rs.40,000 per month from his department of PIA? (ii) Whether the plaintiffs Nos. 1 and 2 are entitled of relief claimed. If yes, on what rate and from what period? (iii) What should the decree be? Both the parties adduced their evidence ultimately the learned trial Judge decreed the suit in favour of plaintiffs‑respondents Nos.3 and

4. Being aggrieved with the judgment aid decree, dated 13‑2‑2001, the petitioner tiled an appeal before the Court of learned Vth Additional District Judge, Karachi (East) who also maintained the judgment and decree of the learned trial Court and dismissed the appeal of the petitioner vide order, dated 15‑6‑2001 which has been impugned by the petitioner through this petition. I have heard the learned counsel for the petitioner as well as the learned counsel appearing on behalf of respondents Nos.3 and

4. It has been contended by the learned counsel for the petitioner that the orders, impugned in this Constitutional petition, are not only illegal, and without lawful authority but have been passed by the learned trial Court as well as the Appellate Court emotionally without applying judicial mind although the petitioner adduced evidence of his two witnesses in his support that he has liabilities of other children from his second wife and in spite of his salary being around Rs.37,000, is getting much low home taking salary after deducing different type of loans. It has, further, been contended that prior to the present proceedings, a suit for maintenance was also filed on behalf of respondents Nos.3 and 4 at Layia (Punjab) where mother of respondents Nos.3 and 4 shifted after she was divorced by the petitioner and the said suit was dismissed. As such, the present proceedings, being initiated on the same issue between the same parties, comes within the definition of 'res judicata'. The learned counsel has relied upon the cases of Iftikhar Hussain and another v: Muhammad Aslam and others (1991 MLD 1500). Javaid Akhtar Bhatti v. Deputy Commissioner and others (1991 MLD 1498) and Mehboob Ali v. The Director, Kachi Abadi and another (1996 MLD 865) in support of his contentions. On the other hand, learned counsel appearing on behalf of respondents Nos.3 and 4 has contended that the learned trial Court after considering the entire matter passed judgment and decree in favour of respondents Nos.3 and 4 on merits which was even maintained, at the appellate stage by the learned Additional District Judges Karachi (East). It has, further, been contended that the petitioner divorced the mother of respondents Nos.3 and 4 in August, 1995 whereafter she shifted from Karachi to Layia (Punjab) where she filed suit for maintenance but the same was dismissed for non‑prosecution, therefore, the contention, advanced on behalf the petitioner, that the present proceedings come within the definition' of res judicata, is untenable. It has, also, been contended that, earlier, the learned 1st Additional District Judge, Karachi (East) remanded back the judgment and decree passed by the 1st Civil and Family Judge, Karachi (East) with the direction to assess the salary and personal belonging by calling the service, record of the petitioner. Resultantly, the service record of the petitioner was called and it came on record that the petitioner being an employee of PIA, working in the capacity, of Air‑Craft Engineer, gets handsome salary of more than Rs.38,000 per month and he has also owned agricultural land in Punjab besides a house valuing of Rs.10 lacs. On the basis of such assessment, the learned trial Judge passed the impugned judgment and decree which was maintained by the 1st Additional District Judge Karachi (East) vide her judgment, dated 15‑6‑2001 passed in Family Appeal No.22 of 2001. The learned counsel has relied upon the case of Danish Hussain v. Additional District Judge‑I Central Karachi and others (2001 CLC 1214) in support of his contentions. I have considered the arguments, advanced on behalf of both the parties, perused the record and gone through the case law cited, as above. Perusal of record shows that the petitioner, after divorcing his first wife (mother of respondents Nos.3 and 4) contracted second marriage and out of the said wedlock he has also children whom he is maintaining very well but, though being real father of respondents Nos.3 and 4, neither he paid any amount for their maintenance nor has any knowledge about their education as well as health. According to the Injunctions of Islam it is the duties and obligations of the petitioner to maintain the minors. The above facts reveal the status of the petitioner and as such it would be a rightful claim on the part of children (respondents Nos.3 and 4) to have their due maintenance looking to the standard of their father. It cannot be understood what levish expenditure can be made from the maintenance allowance of Rs.10,000 per month or their mother which in these days would be hardly sufficient to meet their bare necessities. Looking to the standard of the petitioner and keeping in view his admission, clearly and unequivocally made with regard to non‑payment of maintenance to respondents Nos.3 and 4 and also absence of knowledge about their education as well as health, I am of the firm view that the learned trial Court has fully adverted to the evidence on record and assessed the same in true perspective, therefore, the Appellate Court was wholly justified in not interfering with the same. The decision (faisala) of the Punchayat Committee so relied upon by the petitioner cannot be considered since none of the parties has examined any witness in this behalf. For what has been discussed above, I am of the considered view that this Constitutional petition has no force, which, accordingly, is dismissed. C.P. No. S‑377 of 2001 stands dismissed alongwith listed application. S.A.K./M‑358/K Petition dismissed.