2004 PLP 794 (MLD)

Muhammad Shahzad Shaukat for Petitioner. Mrs. Tehsin Irfan for respondents. Date of hearing: 22nd December, 2003. The petitioner through the present Constitutional petition has assailed the orders of the Appellate Court dated 26‑3‑2003 by virtue of which he was directed to pay interim maintenance to present respondents Nos.4 and 5 w.e.f. April, 2001 till the date of judgment as directed by the trial Court.

2. The facts in brief are that the petitioner was married with present respondent No.3 on 21‑12‑1994 and out of this wedlock two daughters, present respondents Nos.4 and 5 were born. After some time on account of development of estranged relations in between the parties respondent No.3 abandoned the petitioner and thereafter filed a suit for recovery of maintenance allowance for herself at the rate of Rs.10,000 per month and for her minor daughters at the rate of Rs.15,000 per month each. During the pendency of the suit the trial Court vide ex parte order dated 9‑4‑2001 directed the petitioner to pay interim maintenance to Mst. Samina Srawar, present respondent No.3 at the rate of Rs.8,000 per month and Rs.3,000 per month each to present respondents Nos.4 and 5 w.e.f April, 2001. The petitioner filed an application under Order IX, rule 7, C.P.C. for recalling of ex parte order dated 9‑4‑2001 while present respondent No.3 moved the trial Court for implementation of order dated 9‑4‑2001. The Judge Family Court dismissed the application of the petitioner while respondent No.3 withdrew her application. Subsequently, on account of failure of the petitioner to deposit the amount of interim maintenance, the defence of the petitioner was struck off vide order dated 22‑5‑2002 and the suit ultimately was decreed in favour of respondents Nos.3 to 5 on 30‑5‑2002 directing the petitioner to pay maintenance at the rate of Rs.10,000 per month to respondent No.3 and Rs.15,000 per month each to respondents Nos.4 and

5. The petitioner being aggrieved of the judgment and decree dated 30‑5‑2002 preferred an appeal, which was accepted by the Appellate Court vide judgment dated 26‑3‑2003 and remanded the case to the trial Court subject to the condition that the petitioner shall pay interim maintenance allowance to present respondents Nos.4 and 5 w.e.f. April, 2001 as directed by the trial Court. The petitioner feeling himself aggrieved of the conditions imposed by the Appellate Court has invoked the Constitutional jurisdiction of this Court.

3. In response to pre‑admission notice Mrs. Tehseen Irfan, Advocate has entered appearance on behalf of respondents Nos.3 to

5. I have heard the learned counsel for both the parties and perused the material made available before this Court.

4. The main submission of the learned counsel for the petitioner is that section 17‑A was incorporated in Family Courts Act, 1964 by Ordinance LV of 2002 dated 1‑12‑2002 empowering the Family Court to pass an order for interim maintenance, therefore, the orders for interim maintenance passed by the Family Court on 9‑4‑2001 was illegal and without jurisdiction. It is added that the Appellate Court had also not been vested with this power, therefore, the order of the Appellate Court directing the petitioner to pay interim maintenance as ordered by the Family Court was also illegal and without jurisdiction.

5. The contention of the learned counsel has no force. It is true that A prior to addition of section 17‑A in Family Court Act, 1964, which was incorporated through Ordinance LV of 2002 issued on 1‑12‑2002, there is no specific provision in the Act empowering the Court to pass an order for interim maintenance during the pendency of the suit for maintenance but it does not mean that the Court is powerless to pass such‑like order if justice of the situation requires. It is settled principle of law that if a Court or Tribunal has the authority to pass a final order it can also pass unless the power to do so is expressly or impliedly excluded. In this behalf, I am fortified by the law laid down by the Hon'ble Supreme Court in the cases of Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki (PLD 1971 SC 242), Sind Employees Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32) and Moulvi Muhammad Yaqub v. Chairman, Election Tribunal, N.‑W.F.P. and others (PLD 1976 SC 625).

6. There is nothing contained in the Family Court Act, even remotely suggests that Family Court was denuded of its power to pass interim order for maintenance. Both, under statutory law and Islamic principles of personal law, the father was obliged to provide maintenance B to his child, therefore, the order of the Family Court directing the petitioner to pay maintenance to the respondents during the pendency of the suit was just and according to the situation demanded. In this behalf, I am guided by the law laid down by this Court in the case of Muhammad Sarwar v. Sughran Bibi and 2 others (1996 MLD 1057).

7. The next question whether the Appellate Court can pass an order, which was within the jurisdiction of the original Court. To fill in the gap in the procedure section 107(2) of Civil Procedure Code, 1908 was enacted under which the Appellate Court has the same powers and is burdened with the same duties, as conferred and imposed on the trial Curt. Reference can also be made to Order XLI, rule 33, C.P.C., C which in order to prevent the ends of justice being defeated gives wide discretionary powers to the Appellate Court ,to adjudge the rights of the parties, as the ends of justice may demand and pass such decree or orders, as ought to have been passed. In this behalf, I am fortified by the law laid down by the apex Court of this country in the cases of North West Frontier Province Government, Peshawar through Collector, Abbattabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 SC 418) and Moulvi Muhammad Yaqub (supra).

8. Apart from above situation, the petitioner was given an I opportunity to deposit part of the maintenance allowance, which has become due against him as token of goodwill an gesture but he has refused to deposit any amount. The conduct of the petitioner throughout the proceedings of this matter also does not entitle him to any discretionary relief.

9. In view of the above discussion, no illegality or irregularity had been committed by the Appellate Court while passing the impugned judgment, as such there is no scope of interference by this Court in the exercise of Constitutional jurisdiction, hence the writ petition is dismissed with no orders as to costs. M.H./A‑6/L Petition dismissed.