2001 PLP 1198 (MLD)

Date of hearing: 7th November, 2000. Briefly stated the facts are that the plaintiffs/petitioners filed a suit for maintenance against the defendant/respondent No.3. The said suit was contested/resisted by the defendant/respondent No.3 and from the divergent pleadings of the parties following issues were framed:‑ (1) Whether the plaintiffs are entitled to recover maintenance allowance? If so, to what extent and for what period? OPP (2) Relief.

2. In support of their respective stand both the parties adduced evidence. Vide judgment and decree dated 22‑11‑1999 the trial Court decreed the suit of the plaintiffs/petitioners and, fixed the maintenance of petitioner No. 1 at the rate of Rs.800 per month, but did not grant any maintenance to the extent of petitioner No.2. The plaintiffs/petitioners challenged the said judgment and decree. Vide judgment and decree dated 21‑12‑1999 the appeal was accepted and the suit was remanded to the trial Court with a direction to implead next friend of petitioner No.2 i.e. Muhammad Ramzan as a party and then to dispose of the same in accordance with law. After remand of the suit the matter was again disposed of by the trial Court vide judgment and decree dated 16‑5‑2000 whereby petitioner No. 1 was granted maintenance at the rate of Rs.600 per month and petitioner No.2 was granted maintenance at the rate of Rs.300 per month. The plaintiffs/petitioners again challenged the said judgment and decree and filed an appeal which was heard and disposed of by the learned Additional District Judge, Chishtian, District Bahawalnagar who vide judgment and decree dated 19‑9‑2000‑dismissed the said appeal.

3. Feeling aggrieved of the said judgments and decrees the plaintiffs/petitioners have filed the instant writ petition.

4. Stand of the learned counsel for the plaintiffs/petitioners is that while disposing of appeal vide judgment and decree dated 21‑12‑1999 the trial Court was directed to decide the maintenance to the extent of Muhammad Ramzan/petitioner No.2 only and it was not left to the discretion of the trial Court to interfere in the findings regarding maintenance amount granted to petitioner No.

1. He further contended that defendant/respondent No.3 had made an offer that he was not in a position to pay maintenance allowance in cash and was ready to alienate two acres of land in favour of the plaintiffs/petitioners to meet their maintenance expenses. He argued that trial Court should have accepted the said offer of the defendant/respondent No.3 and decreed the suit in terms of said offer.

5. A perusal of record reveals that after the said offer was made, the matter was not disposed of and subsequently an application was moved by the, defendant/respondent No.3 which was later on withdrawn and the matter was finally disposed of on the basis of evidence adduced in the trial Court. Now admittedly the trial Court initially fixed the maintenance allowance of petitioner No.1 at the rate of Rs.800 per month but did not grant any maintenance allowance to the extent of petitioner No.2. The said order was challenged and was set aside as a whole, as is evident from judgment and decree dated 21‑12‑1999. Thus, it was open to the trial Court to adjudicate upon the matter afresh. It was under these circumstances that the trial Court fixed the maintenance allowance of petitioner No. 1 at the rate of Rs.600 per month and also granted maintenance allowance to petitioner No.2 at the rate of Rs.300 per month. The said order dated 16‑5‑2000 has been upheld by the Appellate Court as is evident from judgment and decree dated 19‑9‑2000.

6. The stand of the learned counsel for the petitioner that suit should have been disposed of on the basis of offer made by the defendant/ respondent No.3 is devoid of any force, as the said ground was not agitated before the Appellate Court, as is evident from the judgment and decrees A dated 21‑12‑1999 and 19‑9‑2000. Both the Courts below have fixed the maintenance allowance on the basis of evidence which has come on record. There is no force in the instant writ petition and the same is dismissed in limine. H.B.T./Q‑8/I Petition dismissed