2008 PLP 1324 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment dated 21st January, 2004 passed by Lahore High Court, Lahore.

2. Precisely stating the facts of the case are that petitioner Mst. Zeb-un-Nisa the mother of minors (petitioners Nos.2-4) filed a suit for maintenance for herself and the minors. She prayed that she be given Rs.4,00,000 as compensation vide agreement dated 11th October, 1997 and the maintenance allowance of all the plaintiffs at the rate of Rs.20,000 or as directed by the Court. The suit was contested by the respondent. Learned Family Judge, after hearing both the sides, decreed the suit vide judgment dated 17th April, 2002 only to the extent of minor (petitioners Nos.2-4) whereby they were held entitled to get maintenance allowance from defendant No.1 at the rate of Rs.5,000 per month each from the date of filing of the suit till the operation of law, however, dismissed the suit to the extent of petitioner No.1. On appeal, filed by the respondent No.1, the judgment/decree of the Family Judge was affirmed by the appellate Court vide judgment dated 18th March, 2003. Feeling dissatisfied respondent No.1 approached the learned High Court by filing writ petition which has been partially allowed by means of impugned judgment whereby maintenance allowance allowed to petitioners Nos.2, 3 and 4 at the rate of Rs.5,000 per month each, was reduced to that of Rs.3,000 per month each. As such instant petition for leave to appeal has been filed.

3. After hearing learned counsel for petitioners, following points emerge for consideration:-- (a) As to whether the learned High Court interfered in concurrent findings of facts recorded by the Family Judge and the first appellate Court, holding that petitioners (2-4) are entitled for maintenance @ Rs.5,000 per month each because the earning of the petitioner is Rs.40,000 per month, is contrary to law laid down in the case of General Manager Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952, wherein it has been held that while exercising the constitutional jurisdiction, High Court has to see whether the judgment/order impugned in the Constitution petition is with or without jurisdiction and if it is found to be without jurisdiction, only then it can interfere in the matter. (b) As to whether in view of the evidence available on record, increase in the cost of life prevailing now-a-days, the Family and appellate Courts have rightly granted maintenance to the petitioner to the tune of Rs.5,000 per month each and the learned High Court without any justification had reduced the maintenance allowance to Rs.3,000 per month each.

4. Thus, to inter alia, examine the above contentions, leave to appeal is granted.

5. Office is directed to fix the appeal arising out of instant petition before the Court in the month of October, 2004, subject to soliciting necessary approval from the Honourable Chief Justice of Pakistan, as the matter pertains to maintenance of petitioners (2-4). Notice be also issued to respondents. Leave to appeal granted. H.B.T./Z-24/SC Leave granted.