2005 PLP 1913 (CLC)

Instant Constitutional petition prayed that judgments/decrees, dated 6-5-2004 and 11-12-2004 passed by the learned Judge Family Court and learned Additional District Judge (respondent Nos. 1 to 2) be declared illegal, void and of no legal consequence, whereby suit for maintenance filed by respondents Nos.3 to 6 was decreed and petitioner's appeal was dismissed, respectively.

2. Succinctly, relevant facts are that respondent No.3 was married to the petitioner according to Muslim rites. This wedlock gave birth to three daughters, respondents Nos.4 to

6. Relations between the spouses slid not remain cordial and ultimately ended in divorce. The minor daughters were living with respondent No.3, who filed three suits, one for recovery of maintenance allowance, the other for recovery of dowry articles and the third for recovery of outstanding dower amount. All the three suits were consolidated by the learned Judge Family Court, vide order, dated 4-3-1999, where after parties reached a compromise on 29-7-1999 and under their statements, all the three suits were disposed of awarding respondents Nos.4 to 6 maintenance at the rate of Rs.600 per month per child through judgment/decree of even date.

3. Respondents Nos.4 to 6 on 4-3-2002 filed another (second) suit for recovery of maintenance allowance, which was contested by the petitioner on the ground that the same is not maintainable in view of earlier decree, dated 29-7-1999, but in spite of his contest the same was decreed on, 6-5-2004 by fixing maintenance allowance at the rate of Rs.2,000 per month for each of them.

4. Petitioner aggrieved of judgment/decree, dated 6-5-2004 filed an appeal before the learned Additional District Judge, Lahore (respondent No.2), but remained unsuccessful as the same was dismissed on 11-12-2004. Matter regarding payment of maintenance under second decree awaits recovery in execution proceedings. Petitioner through lips attorney riled instant petition for adjudgment of concurrent judgments/ decrees of respondents Nos.1 and 2 with the prayer noted above. Respondents Nos. 3 to 6 have appeared, in response to notice by this Court, and are represented through their counsel.

5. Learned counsel for the petitioner submitted that second suit for maintenance allowance was not maintainable in view of provisions of section 11, C.P.C. but both the respondents Nos. 1 and 2 erroneously decreed the suit. It was further submitted that petitioner had throughout been paying maintenance allowance, to his all the three daughters (respondents Nos.4 to 6) under the compromise decree, dated 29-7-1999 regularly, whereafter they had no occasion of cause of action to file second suit for the same relief, which should have been dismissed summarily. It was further urged that maintenance allowance of Rs.2000 per month per child is not only excessive but is beyond the means of the petitioner, thus the same may be annulled in Constitutional jurisdiction of this, Court. Learned counsel for the petitioner relied on the cases of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC

331. Shahul Hamid v. Tahir Ali 1980 SCMR 469 and Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145.

6. Learned counsel for respondents Nos. 4 to 6 refuted the arguments of the petitioner and supporting the judgments/decrees of respondents Nos. 1 and 2, submitted that second suit for enhancement of maintenance allowance was competent at law and the provisions of section 11 of the C.P.C. were not attracted to such cases. It was further submitted that petitioner is employed abroad and is in a position to pay the maintenance of Rs.2,000 per child per month, which is not excessive, as the minors have grown up and their requirements have expanded. Learned counsel for the respondents in support of his case referred to the judgments in the cases of Arbab Mir. Muhammad v. Mst. Iram Iltimas and 4 others 1999 CLC 1668 and Mehmood Asif Butt v. District Judge, Gujranwala and 2 others 2004 CLC 217.

7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, suit of respondents Nos. 4 to 6 was decreed on 29-7-1999 on the basis of concessional statement of the petitioner, whereby each of them was awarded maintenance allowance at the rate of Rs.600 per month. After lapse of three years i.e. on 4-3-2002 they felt necessity of enhancement of maintenance allowance as they were promoted to higher classes and were 'admitted in better schools, where tuition fee etc. was comparatively more. Demands of the minors also A increased by gaining of their ages and the maintenance allowance lost its purchasing powers clue to inflation and dearness. In these circumstances, 'the only course open for the minors was to file fresh suit because under law, the Court which passed the decree, dated 29-7-1999 became functus officio and could not have increased the amount fixed therein. Limitation for filing of appeal against decree, dated 29-7-1999 had also lapsed, There is no bar in the Family Courts Act, .1964' for filing second suit -for enhancement of maintenance allowance except the one under section 11 of the C.P.C., which was made applicable to these proceedings by virtue of section 17 of the Act of 1964. Under this provisions., second suit will only be bared in case the matter has been directly or substantially in issue in a former suit between the parties. No doubt the earlier suit was for recovery of maintenance but issue regarding its enhancement was neither raised nor was considered hi that suit and thus was not in issue, then. In view of this position, section 11 of the C.P.C. would not bar any subsequent suit, which was riled only for enhancement of maintenance allowance. Respondents Nos. 3 to 6 subsequently pleaded in para.3 of their second plaint, the reasons/causes for praying enhancement/increase in the maintenance. I have "no ambiguity that the suit like the one filed by the respondents was not bared under section 11 of the C.P.C. and the judgments dealing with the general principle of "res judicata" would not resolve the controversy and will not be of any help to the case of the petitioner.

8. In alike circumstances, maintenance, allowance fixed in the year 1986 was sought to be enhanced due to rate of inflation and requirements of the children fin the year 1995 and a Division Bench of Peshawar High Court in the case of Arbab Mir Muhammad (supra) found that future maintenance was competently enhanced and the orders passed by two subordinate Courts suffers from, no jurisdictional defect. Similar circumstances prevailed in the case of Mehmood Asif Butt (supra) and this Court answered the question in favour, of the minors that they can file second suit for increase of maintenance allowance' earlier fixed through a decree. Besides these judgments, provisions of sections 5, 14 and Schedule to West Pakistan Family Courts Act, 1964, do not debar any, subsequent suit filed for the purposes, for which the suit in laud was filed.

9. As regards increase of maintenance allowance from Rs.600 to Rs.2,000, keeping in mind the, rate of inflation in the country and dearness, besides viewing the increased demands of the minors,, who were in 9th, 6th and 4th classes respectively in the year 2002 and by this time must have further promoted by three classes each, it is, held that the same is not excessive/exorbitant. It is to the knowledge of common man that students while coming up in higher classes, need more money to meet their requirements of uniform, tuition fee and, transportation etc. Petitioners, who is employed abroad, has means to pay the amount awarded, as he did not dispute his ability before respondents Nos. 1 and

2. Above all, the maintenance is to bd paid by petitioner to his own children and that too only till their marriages.

10. For the reasons noted above, none of the respondents Nos.1 and 2 committed any illegality amenable to Constitutional jurisdiction of this Court and they competently entertained, adjudicated and decided second suit by respondents Nos. 3 to 6 and correctly enhanced the maintenance allowance. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, hence the same having no merit in it, is dismissed with no order as to costs. M.H./I-103/L Petition dismissed.