2010 PLP 120 (MLD)

S. ALI HASSAN RIZVI, J.

Mst. Surrya Tabassam/respondent No.1, Muhammad Shahzar Asif (minor) son and Mst. Shama Asif (minor) daughter, had on 26-2-2007 brought three claims; one for dissolution of marriage, the other for recovery of dowry articles and the third for recovery of maintenance allowance.

2. The suit was resisted by Muhammad Asif/defendant-petitioner. Trial proceed on the following issues:-- "Issues:-- (1) Whether the plaintiff is entitled to get a decree for dissolution of marriage? OPP (2) Whether the plaintiff is entitled to recovery dowry articles according to list attached with the suit or in lieu there off? OPP (3) Whether the plaintiff is entitled to recover maintenance allowance from the defendant are what rate and for what period? OPP (3A) Whether this Court has no territorial jurisdiction to try the suit? OPD (4). Relief."

3. The suit for dissolution of marriage was decreed, which decree was not challenged by any party. The matter to that extent presented a fait accompli.

4. As on issues Nos.2 and 3 the learned trial Judge relied on list Exh.D1 as produced by the defendant/petitioner in preference to Exh. P1, which list was produced by the plaintiffs/respondents. In regard to two claims forming subject-matter of issues Nos. 2 and 3, the learned Judge, Family Court decreed the same to the extent of dowry articles as per list Exh.D1 and granted maintenance allowance @ Rs.1000 per head per month from the date of filing of the suit till the "legal limitation" with 25% increase after every three years vide judgment and decree, dated 23-1-2008.

5. The writ petitioner did not file any appeal. However, the plaintiffs/decree-holders/respondents Nos. 1 to 3 filed an appeal on 4-3-2008 against the judgment and decree, dated 23-1-2008. The learned appellate Judge modified the findings on issues Nos. 2 and

3. While recording findings on issues No.2 the learned appellate Judge held that the dowry articles as mentioned in Exh.P.1, were to be given preference over Exh.D.1. He also brought into consideration the other evidence on record.

6. Under issue No.2 the plaintiff/respondent No.1 was held entitled to recovery of Rs.15,000 as expenses incurred on delivery charges on the basis 'of certificate Exh. P8 issued by the relevant hospital.

7. The rate of maintenance was enhanced from Rs.1000 per month each to Rs.2000 per month each with 10% annual increase till the minors attained the age of majority.

8. While modifying the findings of the learned trial Court on issues Nos. 2 and 3, the learned appellate Judge accepted the appeal partly aforementioned and directed a decree to follow accordingly.

9. The defendant/judgment debtor Muhammad Asif has filed the present writ petition challenging the validity of the judgment and decree of the appellate Court, dated 26-6-2008 on the ground that the same was against law and facts of the ease; that the learned appellate Court had misdirected himself while placing explicit reliance on the evidence produced by the plaintiffs/respondents and that the judgment and decree rendered by him offended against the principle of justice, equity and fair play.

10. After hearing learned counsel for the petitioner and perusing the record, I find that the petitioner had not challenged the judgment/decree, dated 23-1-2008 rendered by the learned Judge, Family Court, Faisalabad. The appeal was filed by the other side. He had, therefore, conceptually accepted the judgment/decree, dated 23,-1-2008. In appeal, findings on issues Nos. 2 and 3 were modified by the learned appellate Court vide judgment and decree, dated 26-6-2008. In the grounds mentioned in the writ petition, only catch words were used and no misreading or non-reading of any evidence was pointed out. The learned Additional District Judge, Faisalabad being superior Court of facts, his findings could not be easily disturbed in writ jurisdiction, a fortiori when there was no misreading or non-reading any material on record. The writ petition if I could say, was not drafted in a temperate language. In ground (vi) of para.11 of the writ petition, it was claimed that the judgment and decree, passed by the learned first appellate Court was "perverse" and "fanciful". Alleging perversity to a judgment of a Court of fact without pointing out any misreading or non-reading of evidence or jurisdictional defect, would not at all be in the art of advocacy.

11. The judgment/decree rendered by the first appellate Court are based on evidence. No interference is called for in writ jurisdiction. It is dismissed in limine. H.B.T./M-469/L Petition dismissed.