2009 PLP 1427 (MLD)

IQBAL HAMEED-UR-REHMAN, J.

Through the instant petition the petitioner seeks setting aside the impugned judgment and decree, dated 25-7-2007 passed by respondent No.1.

2. Brief facts of the case are that Mst. Tayyaba Doltana minor daughter of respondent No.3 filed a suit for recovery of maintenance against respondent No.3 in the Court of learned Judge Family Court, Mandi Baha-ud-Din on 28-9-1999, who vide judgment and decree, dated 25-3-2000 decreed the suit in favour of the petitioner and awarded Rs.500 per month to the petitioner as maintenance allowance. The decree was maintained in appeal by the learned Addl. District Judge, Mandi Baha-ud-Din vide judgment and decree, dated .5-7-2000. The petitioner filed execution petition on 26-7-2000. During the pendency of the execution petition, the petitioner moved an application for enhancement of maintenance allowance on 21-6-2005 before the Senior Civil Judge/Judge Family Court, Mandi Baha-ud-Din. The said application was dismissed vide order, dated 19-9-2003 by observing that the judgment and decree, dated 5-7-2000 has attained finality and there is no justification for enhancement of the maintenance allowance. The petitioner again moved another application for enhancement of the maintenance allowance on 21-6-2005. Notice was issued to respondent No.3, who contested the same by filing written reply to the said application and thereafter abstained from the proceedings. Resultantly, ex parte proceedings were initiated against respondent No.3. Ex parte statement of the mother of the petitioner (minor) was recorded and the documentary evidence was produced and resultantly maintenance allowance of Rs.500 was enhanced upto Rs.1200 per month with 10% annual increase after every three years vide order, dated 12-4-2007. Respondent No.3 being aggrieved from order, dated 12-4-2007 preferred an appeal before the learned District Judge, Mandi Baha-ud-Din contending that the executing Court had acted illegally and beyond jurisdiction, by entertaining miscellaneous application filed by the petitioner and thereafter had passed an illegal order even against the facts ignoring its own earlier order, dated 19-9-2003 for the rejection of a similar application seeking enhancement of the maintenance allowance. The said appeal of respondent No.3 was accepted vide impugned judgment and decree, dated 25-7-2007 on the ground that it was necessary and proper for the petitioner/decree holder to move an independent application or to institute a separate suit for enhancement of the maintenance allowance before the Court of Senior Civil Judge and such petition or suit thereafter was to be entrusted to a Judge Family Court and decide after, adopting proper procedure in accordance with law, as such, it was observed by the learned District Judge, Mandi Baha ud-Din that the findings of the learned Court were beyond its jurisdiction and the impugned order in the shape of judgment along with a decree is not sustainable in the eye of law. The petitioner being aggrieved filed this petition.

3. Learned counsel for the petitioner adverting to the application of the petitioner Annexure-D has pointed out that the said application had been filed as an independent application and the same had been so numbered independently apart from the Execution' Petition. It is contended that the learned Appellate Court failed to comprehend the same and the said application was no doubt addressed to the Senior Civil Judge/Judge Family Court, Mandi Baha-ud-Din, who was also dealing with the Execution Petition.' In view of the same the impugned order cannot sustain in the eye of law. Reliance is placed on (1999 CLC 1668). It is further argued that the first appellate Court also failed to take into consideration that principle of res judicata is not applicable in the family matters. The maintenance subsequently can be enhanced taking into consideration the circumstances and the conditions prevailing presently. Reliance is placed on PLD 2008 Lah.

560. It is also stated that the learned Judge Family Court keeping the above consideration and the law had rightly enhanced the maintenance allowance to the petitioner as such, he had committed no illegality, therefore, the impugned judgment and decree, dated 25-7-2007 passed in appeal be set aside and the judgment and decree, dated 12-4-2007 be maintained. It is further stated that in the reply to the application of the petitioner the respondent/judgment debtor has not made any specific rebuttal in his reply. Moreover, respondent No.3 was also proceeded against ex parte and he failed to seek setting aside of the ex parte proceedings passed against him.

4. On the other hand, learned counsel for respondent No.3 at the very outset has averted to para.3 of the reply filed by respondent No.3 wherein he duly refuted the claim of the petitioner in the following terms: -- It is-contended by the learned counsel for respondent No.3 that since the petitioner had filed an appeal against the initial judgment and decree, dated 25-3-2000 and the same has been dismissed, which had attained finality and the said fact has been concealed by the petitioner in the instant writ petition, as such this writ petition merits to be dismissed. It is further stated that the impugned judgment and decree was rightly passed by the learned District Judge taking into consideration the law and as such no illegality had occurred which needs to be rectified through the instant writ petition. The petitioner could only seek enhancement through filing of a separate suit. The same could not be adjudicated upon by the Executing Court. Averting to para. 1 of the application of the petitioner, it is stated that the said application had not been filed independently but had been filed in the pending execution petition, as such, it has been rightly observed by the learned District Judge in the impugned judgment and decree, therefore, no illegality has been committed.

5. Arguments heard, record perused.

6. Perusal of the application filed by the petitioner, dated 21-6-2005 before the learned Senior Civil Judge/Judge Family. Court, Mandi Baha-ud-Din, shows that the said application had been separately numbered apart from the execution petition as such the learned District Judge had failed to take into consideration the same while deciding the appeal of respondent No.3 in the circumstances the said application of the petitioner was duly maintainable, as has been held in the case of Arbab Mir Muhammad v. Mst. Iram Iltimas and 4 others (1999 CLC 1668) wherein it has been held that "where the maintenance was fixed in the year, 1986, the same was bound to be changed due to rate of inflation and the requirements of children. No bar existed in filing of fresh application for enhancement of future maintenance." Further the contention of the learned counsel for respondent No.3 that the same could not have been challenged after the petitioner's appeal filed against judgment and decree, dated 25-3-2000, had been dismissed therefore, the same had attained finality, is also not sustainable. Subsequent enhancement of maintenance allowance 'can be allowed on the ground of change in circumstances and conditions as well as the cost of living, as such, the learned Judge Family Court had rightly taken the same into consideration and enhanced the maintenance allowance upto Rs.1200 per month with 10%, annual increase. In this regard, reliance is placed on the case of Muhammad Akram v. Additional District Judge and others (PLD 2008 Lahore 560) wherein it has been held that "Under the changed circumstances and needs of minor children, fresh proceedings for maintenance allowance were maintainable before Family Court having jurisdiction in the matter. Mere fact that mother of the children admitted before Family Court that father of minors was carrying on the same profession by which he was earning livelihood at the time of earlier suit did not essentially mean that there had not been any change in his income as well".

7. The learned Judge Family Court had rightly held that the minor is entitled to maintenance allowance at the rate of Rs.1200 per month with 10% annually increase keeping in view the inflation phenomenon.

8. In view of what has been discussed above, this writ petition is accepted and the impugned judgment and decree, dated 25-7-2007 passed by the learned District Judge, Mandi Baha-ud-Din, is set aside and the judgment and decree, dated 12-4-2007 passed by the learned Judge Family Court, Mandi Baha-ud-Din is upheld. H.B.T./T-28/L Petition accepted.