P L D 1981 Karachi 773__- (PLP)

FAKHRUDDIN G. EBRAHIM, J.‑‑ The respondent's wife filed a family suit for recovery of maintenance at the rate of Rs. 100 per month for the period November, 1965 until April, 1972 which was decreed by the Family Court but at the reduced amount of Rs. 30 per month. The petitioner husband went in appeal and the learned Appellate Court affirmed the findings given by the lower Court and dismissed the appeal, which is the order impugned in this petition.

2. Mr. Abdul Hamid Khan, the learned counsel for the petitioner raised two contentions in support of this petition. Firstly, he contended that the Family Court had no jurisdiction to grant past maintenance for which the learned counsel relied on a decision of the Azad Jammu & Kashmir High Court's decision reported in P L D 1967 Azad J & K 9 k?) No doubt this decision supports the learned counsel on the view taken therein that under the Hanafi Law past maintenance cannot be granted. It would appear that in this case a regular suit was filed for recovery of past maintenance. In the present case, however, the suit was filed in a Family Court and its jurisdiction admittedly extends to granting a decree for maintenance. The Supreme Court of Pakistan in a case where past maintenance was granted by Arbitration Council under section 9 of Ordinance Vill of 1961 rejected the plea that past maintenance could not be granted on the ground that no such prohibition is contained in section 9 of the said Ordinance. The Family Courts Act is an act pari materia to Ordinance Vill of 1961 and since under this Act a well no such prohibition is prescribed we are of the view that the Family Court had the jurisdiction to grant redress for past maintenance. In our view the Supreme Court case referred to above is a paralled case which is applicable to the facts and the circumstances of the present case.

3. Secondly, it was urged that the Appellate Court had itself noticed that proper court‑fee had not been paid by the appellant and Court was, it was argued, obliged under section 12 of the Court Fees Act to give the appellant an opportunity to make good the deficit instead of hearing the appeal and deciding it on merits. The appellant though present at the hearing of the appeal was not prepared to go with the appeal as his counsel was absent and an adjournment was sought by him which was it would appear from the impugned order, justifiably refused. Even if we were to agree with the learned counsel that the Appellate Court was obliged to give the appellant an opportunity to pay court‑fees, which we are doubtful in the circumstances of the present case, in as much as the, appellant though present in person was not prepared to have the appeal heard, we are not inclined to interfere inasmuch as the learned Appellate Court has on merits found that there was no room for interference.

4. As aforesaid, the maintenance granted is negligible sum of Rs. 30 per month only and based as it is on evidence we in our discretion will be justified in not interfering with the order made.

5. The result therefore is that this petition is dismissed with no orders as to costs. Appeal dismissed.