1993 PLP 2063 (CLC)

Taqi Ahmad Khan for Petitioner. Muhammad Abdullah for Respondent No.l. Date of hearing: 12th May, 1992. This judgment shall dispose of Writ Petition No.5900/1991 and Writ Petition No. 4203/1SN2 arising out of the same order dated 11‑3‑1991 passed by the Deputy Commissioner/Controlling Authority, Sialkot, whereby the decision of the Arbitration Council dated 5‑4‑1990 granting maintenance to Mst. Bushra Qasim at the rate of Rs.2,000 per month for the period from 19‑10‑1975 to 22‑3‑1987 till the date of decision and thereafter.

2. Briefly the facts are that Mst. Bushra Qasim petitioner/respondent, filed an application on 14‑7‑1987 before the Chairman, Arbitration Council, Sialkot, claiming maintenance on the ground that Dr. Abdul Rahid, respondent/petitioner, neglected to maintain her throughout the matrimonial life. The application was contested by Dr. Abdul Rashid, respondent/petitioner. The Chairman, Arbitration Council, after providing an adequate opportunity of being heard to the parties and appreciating the material produced by them, accepted the application by order dated 5‑4‑1990, whereby Dr. Abdul Rashid was directed to pay the maintenance to the petitioner/respondent as stated above. Dr. Abdul Rashid challenged the order of the Arbitration Council before the Controlling Authority, respondent No.2 herein, who by order dated 11‑3‑1991, fixed the maintenance allowance at the rate of Rs.1,000 per month and limited the liability of respondent/petitioner to three years prior to the riling of the petition.

3. Learned counsel for the petitioner/respondent has taken the plea that the impugned order is violative of the law laid down in Muhammad Nawaz. v. Mst. Khurshid Begum and others (PLD 1972 SC 302), wherein it was held that Article 120 of the Limitation Act applies in respect of the claims for past maintenance. The limitation provided in this Article is for a period of six years when the right to sue accrues. In the instant case the application for maintenance was submitted to the Arbitration Council on 14‑7‑1987 and, therefore, past maintenance for a period of six years from the date of filing the application was clearly admissible plus future maintenance allowance. Hence the maintenance allowance was allowed for the period from 19‑10‑1975 to 22‑3‑1987, that is to say, for a period of eleven years and four months, which was not sustainable in law, in that, past and future maintenance allowance allowable to a wife could be claimed under the provision of section 9 of the Muslim Family Laws Ordinance, 1979, subject to limitation. Thus visualized, the past maintenance for a period of six years prior to the institution of the application was clearly. time‑barred. The Controlling Authority vide impugned order dated 11‑3‑1991 also erred in reducing the maintenance to three years prior to the riling of application for the maintenance before the Arbitration Council.

4. A concurrent finding of facts has been recorded by the Courts below that the petitioner/respondent was entitled to past maintenance. The dispute is only regarding the period subject to limitation. The Arbitration Council awarded past maintenance for a period of eleven years and four months. The Controlling Authority reduced it to three years. The decisions of both the Courts are contrary to the law declared by the Supreme Court in Muhammad Nawaz (supra).

5. In order to avoid protracted litigation between the parties, it is not necessary to remand the case for re‑hearing on this pure question of law. In consequence, the petitioner/respondent is entitled to past maintenance of a period of six years prior to the riling of the application dated 14‑7‑1987 before the Arbitration Council as well as further maintenance at the rate of Rs.1,000 per month. Learned counsel for the respondent/petitioner submitted that the respondent/petitioner is unable to pay the arrears immediately and, therefore, sought for some time. Let the arrears be paid by. Dr. Abdul Rashid, respondent/petitioner to Mst. Bushra Oasim, petitioner/respondent within 60 (sixty) days from today. To this extent the impugned orders are modified and the writ petitions are disposed of accordingly, with no order, as to costs. H.B.T./B‑88/1, Order accordingly.