2000 PLP 1208 (CLC)

Muhammad Younas Uppal for Petitioner. Brief facts of the instant writ petition are that the respondent No. l filed a suit for maintenance allowance against the petitioner. This suit was contested by the respondent, who categorically stated that the respondent No.1 stands divorced by the present petitioner and the divorce has become effective. Learned Judge Family Court formulated the following issues:‑ (i) Whether the plaintiffs are entitled for maintenance? If so, at what rate and for which period? OPP. (ii) Whether the defendant has divorced the plaintiff? If so, on which date? OPD (iii) Whether the suit is not maintainable in its present form? OPD (iv) Relief.

2. Parties led their evidence. Learned Judge Family Court vide judgment and decree, dated 21‑6‑1999, while giving issuewise findings. A decreed the suit entitling the minors to recover Rs.800 per month in future from the date of institution of the suit. The past maintenance was also allowed from 10‑10‑1996 to 21‑6‑1999 Rs.25,

870. The maintenance to the extent of respondent‑wife Mst. Razia Bibi was refused. In earlier round of litigation the judgment and decree, dated 30‑9‑1998 was assailed in appeal and vide judgment and decree, dated 1‑12‑1998 the case was remanded, directing the suit to be re‑tried afresh. After remand the pliantiff‑respondant produced her oral as well as documentary evidence while the defendant failed to produce evidence, so his defence was closed. Two appeals were filed before the learned appellate Court, one by Mst. Razai Bibi and the other by the present petitioner. Both the appeals were heard together. The learned appellate Court vide judgment and decree, dated 21‑1‑2000 dismissed both the appeals. Instant writ petition challenges both the judgments and decrees. "

3. The only contention raised by learned counsel for the petitioner is that earlier suit was filed by Mst. Razia Bibi‑mother of the minors, later on she gave an application that the minors be impleaded as parties as she was divorced by the present petitioner and divorce had become effective, she has no locus standi to obtain maintenance on behalf of the minors and even about her own maintenance. Further submitted that Code of Civil Procedure does not apply to the family suits, therefore, the parties could not be impleaded as the respondent gave an application for amendment of the pleading to bring the names of minors on reocrd. 4. 1 have heard the learned counsel .for the petitioner and carefully perused the record. I am afraid I am not convinced by the arguments advanced by learned counsel for the petitioner. An application was given under Order VI, Rule 17 read with section 151, C.P.C. for amendment of pleadings on the basis that in the initial suit filed by the respondent Mst. Razia Bibi, names of the minors Mst. Ishrat Bibi and Mst. Muqaddas Bibi were not in the array of plaintiffs. The suit was filed on their behalf by the mother as guardian ad litem and the application was given for the amendment of pleadings. The learned Judge Family Court dismissed the application filed by Mst. Razia seeking permission to implead the minors for claiming maintenance allowance but proceeded to grant maintenance in respect of minor daughters. This fact was assailed in appeal before the learned appellate Court, where it was argued by learned counsel for the respondent that even if the minors were not arrayed in the plaintiffs, but claim pertains to their maintenance allowance through their next friend and legal guardian, their mother Mst. Razia Bibi, therefore, Family Court has rightly granted maintenance to the minors. The learned appellate Court held that finding on issue No.2 attained finality as the minors were born during the subsistence of wed‑lock, they were entitled for the grant of maintenance..

5. So far as application of Code of Civil Procedure is concerned, section 17 of Family Court Act, 1964 specifically bars the application of C.P.C. and provisions of Evidence Act, 1872, except sections 10 and 11 to A the proceedings before any Family Court, the intention of legislature is for expeditious settlement and disposal of disputes relating to marriages and family affairs but, since the Family Court Judge is a Court, Court has inherent powers to pass orders to avoid multiplicity of cases between the parties. The Family Court could have allowed the application to bring the minors names in the array of plaintiffs, Ishrat Yar Khan v. S.C.J., Mardan etc PLD 1982 Pesh.

151. The averments in plaint disclosed that suit for maintenance is filed on behalf of the minors through their mother. Although the mother also claimed maintenance, but.her claim was refused by the learned Judge Family Court and also by the learned appellate Court. The minors are also parties before the learned appellate Court in both the appeals, therefore, no such objection can be raised at this stage.

6. I have found no legal infirmity in the concurrent finding of fact arrived at by the learned Courts below, even otherwise this matter is twicely taken by the learned subordinate Courts in two rounds of litigation, 8 therefore finding no substance in the instant writ petition, the same is) dismissed in limine. Q.M.H./M.A.K./Z‑8/L Petition dismissed.