1995 PLP 172 (MLD)

2. Respondent No.l learned Guardian Judge, Lahore, decreed the suit against respondent No. 3 Syed Tanvir Hussain Shah and directed him to pay Rs.2,000 per month to Mst. Syeda Sajida Nasreen from April 1988 till the completion of Iddat period on 18‑3‑1989. Respondent No.3 was also directed to pay Rs.400 per month as maintenance allowance in respect of the present petitioners from the date of institution of the suit (till their entitlement under the law) vide judgment and decree dated 19‑2‑1992.

3. The petitioners filed an appeal before respondent No. 2 Additional District Judge, Lahore, assailing the quantum of maintenance awarded to the petitioners, which appeal was dismissed by respondent No.2 vide order dated 19‑6‑1994.

4. The petitioners have assailed the judgments of both the Courts below in respect of the quantum of maintenance awarded in favour of the petitioners on the grounds that the decisions of both the Courts below have been based on misreading and non‑reading of evidence on the record and that the award of Rs.400 per, month as total amount of maintenance allowance in respect of the three minors amounts to a dismissal of the suit.

5. Learned counsel for the petitioners has contended that respondent No.1 did not take into consideration the evidence of P.W.2 Bagh Ali to the effect that respondent No. 3 Syed Tanvir Hussain runs a shop under the name and style of Ali Spare Parts from where he has an income of up to Rs.5,000 to 6,000 a month. He also did not consider the relevant entries of Jamabandi for the year 1985‑86, of which certified copy had been produced by the petitioners showing that respondent No. 3 owned three acres of agricultural land which stood in his name. It was also not considered by the Courts below that respondent No. 3 has married for the second time and has a child from second wife whom he is maintaining out of his own means, and on the basis of misreading of evidence both the Courts below came to the erroneous conclusion that Syed Tanvir Hussain, respondent No. 3, is a Naib‑Qasid who earns only Rs. 848 per month and he does not own any agricultural property.

6. It has been further contended by the learned counsel for the petitioners that both the Courts below have taken into consideration in admissible evidence while arriving at the aforesaid conclusion. According to the learned counsel for the petitioners, certificate dated 1‑1‑1991, issued by Manager, Commercial Cooperative Development Corporation Limited, to the effect that respondent No.3 is working as Naib‑Qasid in the said Corporation at salary of Rs.848 per month, has admittedly been issued by cousin of the respondent, namely, Munir Hussain, who is Manager of the said Corporation and, therefore, the certificate is a procured document. Secondly, the certificate purportedly issued by the Tehsildar, Okara, dated 9‑2‑1991, to the effect that respondent No.3 has no agricultural property in the said Chak according to Revenue Record, is not supported by any mutation which could controvert the Jamabandi submitted by the petitioners. Thus, both these certificates were inadmissible as evidence while the petitioner's evidence in the form of Jamabandi in the name of respondent No. 3 was not controverted nor were the assertions of Bagh Ali (P.W.2) to the effect that respondent No.3 earned five to six thousand rupees a month controverted through cross-examination.

7. Learned counsel for the petitioners has relied on judgment cited as Iqbal Hussain v. Sarwari Begum (PLD 1987 Lah. 1138) wherein it has been held that failure to cross‑examine a witness means that the statement of the witness has been accepted. He has further relied on judgments cited as Mohibullah & C o. v. Bahauddin (1990 SCMR 1070) and Ali Nawaz v. Board of Revenue (PLD 1989 Kar. 237) to contend that concurrent finding of fact by two Courts below can be set aside in writ jurisdiction where there has been a misreading of evidence or where material evidence has not been taken into consideration.

8. On the above grounds, learned counsel for the petitioners submits that the quantum of maintenance awarded by the Courts below needs to be modified since in the amount of Rs.400 per month three persons cannot even have two meals per‑ day and their schooling and clothing and other requirements are apart from the basic necessity of food, and thus Rs.500 per month per child is minimum requirement for their board, lodging and schooling expenses. In these circumstances, the learned counsel for the petitioners has prayed that the maintenance of Rs.400 per month in respect of the minors being a totally meagre and unrealistic amount may be modified and suitably enhanced after taking into account the evidence adduced by the petitioners before the Courts below.

9. Learned counsel for respondent No.3 has taken a preliminary objection against the maintainability of the petition. He contends that concurrent finding of fact of two Courts below which is duly supported by evidence on the record, cannot be challenged in writ jurisdiction. He has placed reliance on Fazal Khitab v. Naheed Akhtar (PLD 1979 SC 864), Muhammad Sharif v. Sughra Bano (1984 SCMR 1138) and Muhammad Hussain Munir v. Sikandar (PLD 19:74 SC 139) in support of his contention. On merits, he has argued that respondent No. 3 does not own any spare‑parts shop. No objection or question was raised before the learned Family Court in respect of certificate to the effect that respondent No. 3 was Naib‑Qasid; that since the liquidation proceedings against Cooperative Societies, respondent No. 3 is jobless at the moment; that three acres of land, referred to above by petitioners, as being property of respondent No.3 was transferred by the respondent to his mother in pursuance of compromise in some family‑dispute over property and that no objection was taken by the petitioners' counsel to the certificate of the Tehsildar before the trial Court. There is mere statement of P.W.2 Bagh Ali regarding the income of the respondent which is not authenticated by any evidence. He submits that both the Courts below after examination and appraisal of all the evidence have come to the same conclusion and their findings are not to be dislodged through Constitutional petition unless there is anything to show that the orders of these two Courts are without lawful authority.

10. I have heard the arguments of the learned counsel for the parties and have also perused the record. I have also examined the relevant law on the subject. The petitioners had produced in evidence before the learned Family Court copy of Jamabandi for the year 1985‑86 showing Tanvir Hussain Shah, respondent No.3, as owner of approximately three acres of agricultural land in District Okara. Bagh Ali (P.W.2) had also deposed before the Court that respondent No. 3 owned a spare parts shop and was earning approximately Rs.5,000 to Rs.6,000 income from the said shop and that his income from agricultural land would be about fifty to sixty thousand per annum. No question was put to him during cross‑examination to disprove these statements. The certificate, issued by Tehsildar, to the effect that respondent No. 3 does not own any agricultural land on the date the certificate was issued, i.e. 9‑2‑1991, is not supported by any mutation which would be necessary in order to controvert the Jamabandi placed on record by the petitioners. Even otherwise, if this certificate is assumed to be correct, it would only serve to show that respondent No.3, during the pendency of the suit filed by the petitioners on 21‑2‑1989, transferred the property to his mother in a mala fide effort to place it outside the reach of the Court. The petitioners have also placed on record a summons, issued to respondent No.3 in another case, on which the process‑server has noted that when he went to the address of respondent Tanveer Hussain Shah he was informed that the respondent runs a shop in Renala Khurd, consequently, the process‑server went to Renala Khurd and duly served notice in Renala Khurd, in order to show that the respondent does have a shop of auto spare parts .in Renala Khurd. The certificate, produced by respondent No‑3, regarding his being employed as Naib‑Qasid in Commercial Cooperative Development Corporation Limited has admittedly been procured during the pendency of the suit from the cousin of the respondent and it is stated in the certificate that respondent No.3 is drawing salary of Rs.848 per month as Naib‑Qasid. In his statement Tanvir Hussain Shah, respondent No.3, has deposed that his salary is Rs.950, which is inconsistent with the certificate. Both the documents abovementioned, i.e., certificate of Patwari and certificate of cousin of respondent No. 3 who was Bank Manager of Commercial Cooperative Development Corporation Ltd., were considered by the learned Judge Family Court as well as the learned appellate Court as evidence of the fact that respondent No.3 has no agricultural land and is working as Naib‑Qasid in the said institution. Statement of Bagh Ali (P.W.2) regarding the fact that respondent No.3 runs shop in the name and style of Ali Auto Store, which has gone un repudiated, was not taken into consideration by both the Courts below while determining the income of the respondent. Both the Courts below have not adverted to the fact that Jamabandi had been produced by the petitioner to prove that respondent No.3 owns about three acres of land in District Okara while arriving at conclusion that the respondent could pay Rs.400 only in view of the evidence on the record regarding the income of the defendant respondent.

11. After having perused all the above‑cited evidence, I am of the view that both the Courts below have misread the evidence regarding the income of the respondent. Both the certificate of Patwari and certificate of salary of respondent No.3 as Naib‑Qasid are patently procured documents, which appear to have been obtained for the specific purpose of defeating the claim of the petitioners for maintenance. These documents also speak volumes regarding mala fide of respondent No.3 who is admittedly remarried and is able to maintain another wife and child out of his means. The fact that respondent No.3 runs an auto‑parts shop at Renala Khurd has not been disproved. The learned Courts below have also failed to appreciate that it is not possible for three children to be maintained in the total amount of Rs.400 per month. According to present cost of living, two meals a day would cost Rs.10 per child. However, if most stringent allowance is given, minimum amount necessary for food alone would not be less than Rs.750 per month for the three petitioners. All the three petitioners are admittedly attending school and would require a minimum amount of Rs.100 per month each for books and uniform even if no school fees are charged, Rs.250 per month collectively is minimum requirement. Both the Courts below have failed to take these relevant factors into consideration while assessing the means of respondent No.3 and the needs of the petitioners.

12. Following the principle laid down by the august Supreme Court of Pakistan in judgments cited at 1990 SCMR 1070 (Mohibullah & Co. v. Bahauddin) and 1993 SCMR 2369 (Muhammad lqbal and another v. Hassan Din), I consider that this is a fit case for interference by this Court in the exercise of its extraordinary Constitutional jurisdiction, since the concurrent findings of fact of both the Courts below are based on misreading of evidence on record. I hold that both the impugned judgments are without lawful authority and of no legal effect and that award of maintenance of Rs.400 per month collectively in respect of all the petitioners is tantamount to virtual dismissal of the suit of the petitioners.

13. Remanding the case for reappraisal of evidence to the learned Judge Family Court would only cause further protracted litigation and denial to petitioners of much‑needed financial support which is, under the law, the liability of respondent No.3. Therefore, in the interest of justice;' I consider it appropriate to modify the decree of the learned Judge Family Court in respect of maintenance of the petitioners and, in view of the evidence available on the record, I direct that respondent No.3 shall pay the petitioners a sum of Rs.1,000 per month collectively from the date of the institution of the suit before the learned Judge Family Court till their entitlement under the law. The petition is accepted. There is no order as to costs. M.BA./A‑714/L Petition accepted.