2006 PLP 2099 (YLR)

SALIM KHAN, J.

Mir Afzal is shown to have brought the present Writ Petition No.204 of 2005 whereby he challenged the judgment and decree dated 11-7-2005 passed by the learned Additional District Judge, Haripur at Ghazi and requested for declaration that the findings of the learned Additional District Judge, Haripur on Issues Nos.6 and 8 are illegal and without lawful authority.

2. The facts leading to this case are that Mst. Ahmad Jan alias Ahman Jan wife of Mir Afzal Khan, Mst. Shamaila daughter and Saqib Khan and Gul Afzal sons of Mir Afzal brought a suit against Mir Afzal son of Zabita Khan for recovery of Rs.50,000 of plaintiff No.1, for recovery of maintenance allowance of Rs.13,500 from 7-1-2002 to 7-11-2002 (nine months) at the rate of Rs.1,500 and at the rate of Rs.2,000 per month for future, as well as for recovery of an amount of Rs.40,500 as the maintenance allowance of plaintiffs Nos.2, 3 and 4 from 7-1-2002 to 7-11-2002 (nine months) at the rate of Rs.1,500 per person and also for future maintenance allowance at the rate of Rs.2,

000. The learned Judge Family Court, in Case No.42/F.C. of 2002 instituted on 1441-2002 and decided on 5-5-2004, declared plaintiff No.1 entitled to Rs.62 only as the dower amount, Rs.3,000 at the rate of Rs.1,000 per month for three months period of Eddat as maintenance allowance and plaintiffs Nos.2, 3 and 4 were declared entitled to the maintenance allowance of Rs.2,100 per month at the rate of Rs.700 per head. The past maintenance of plaintiffs was adjusted as discussed in the body of the judgment. On appeal by Mst. Ahmad Jan alias Ahman Jan and others the learned District Judge, Haripur at Ghazi, after discussing the evidence, partially accepted the appeal and modified the judgment and decree of the learned Judge Family Court to the extent of relief No.2 and decreed in favour of plaintiffs Nos.2, 3 and

4. He declared the plaintiffs Nos.2, 3 and 4 entitled to the recovery of maintenance allowance at the rate of Rs.1,000 per_ head per month as past maintenance allowance from 7-1-2002 till the decision of the suit and at the rate of Rs.1,500 per head per month as future maintenance allowance till plaintiffs Nos.3 and 4 attained majority and plaintiff No.2 got married. It meant that the appeal of the plaintiff No.1 was otherwise dismissed. This resulted in the filing of the present writ petition.

3. The learned counsel for the respondents, at the very outset, objected to the filing of the present writ petition which , has been filed through Akhtar Nawaz Khan, Advocate and the affidavit has been given by Moazzam Khan son of Zabita Khan special attorney. He contended that the special power of attorney attested by the vice counsel on 8-3-2003 was not in respect of the present writ petition but was only for the purposes of the suit regarding dower and maintenance allowance pending in the Court of Civil Judge Ghazi and its pursuit and supervision was required by Mir Afzal Khan for which he appointed his brother Mozzam Khan as his attorney. The learned counsel for the petitioner referred to the contents of the said special power of attorney and contended that the attorney was authorized to represent Mir Afzal Khan in the revenue Courts, criminal Courts, civil Courts, up to the Supreme Court of Pakistan for the purposes of the said suit, and the present writ petition was also a continuation of the said proceedings. The learned counsel for the respondents contended that the said special power of attorney was not for the purposes of this writ petition and this writ petition was not the continuation of the proceedings of the mentioned suit. He relied on PLD 2001 Lahore 495 in this respect.

4. We heard the arguments of the learned counsel for the parties and perused the record.

5. The West Pakistan Family Courts Act, 1964, has prescribed only two stages for the proceedings regarding cases of family nature Such a case can be dealt with in the learned original Court and only an appeal is allowed regarding the same, and the judgment and decree in appeal becomes final, unless and until some illegality or irregularity in it or misuse or non-use of jurisdiction by the learned appellate Court in granting the judgment and decree have occasioned. The writ petition is a special right of an aggrieved person, independent of the civil or criminal proceedings in a Court of law. This being a constitutional jurisdiction, has to be exercised with due care. The petitioner (Moazzam Khan) is not the aggrieved person and he has not been specially authorized for the purposes of this writ petition by his brother, namely, Mir Afzal Khan, who was party to his family case by his wife and children. We, therefore, hold that the power of attorney in question is not a permission to Moazzam Khan on behalf of his brother. In the light of the above legal position, we are not inclined to exercise our extraordinary constitutional jurisdiction in favour of the present petitioner. The learned appellate Court has rightly exercised jurisdiction by increasing the maintenance allowance of the plaintiffs Nos.2 to 4 as per his impugned judgment and decree in the light of the fact that Mir Afzal Khan has been serving outside the country and had the financial position to send amounts for the plaintiffs previously. There is nothing on record to show that Mir Afzal Khan did not have sufficient means to meet the requirements of the decree passed by the learned appellate Court.

6. We do not find any merit in the present writ petition which is hereby dismissed. H.B.T./108/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.