-Suit for recovery of maintenance--Direction for payment--Respondent did not pay single penny and preferred an appeal-

 PLJ 2009 Lahore 556

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--No appeal lay against the order passed by Family Court directing payment of interim maintenance allowance--Suit for recovery of maintenance--Direction for payment--Respondent did not pay single penny and preferred an appeal--Validity--Expression "decision"--The word decision will have to be read ejusdem generis with expression decree--Held: No appeal lay against any interim order passed by Family Court and that only final order would be covered by the word decision--Appeal before Distt. Judge filed against the order of Family Court directing interim maintenance was not competent--Impugned order had no legal efficacy--Petition was accepted.      [P. 557] A & B

PLD 1999 Lah. 33, ref.

Mr. Muhammad Tanveer Ejaz, Advocate for Petitioners.

Respondent No. 2 in person.

Date of hearing: 5.3.2009.

 PLJ 2009 Lahore 556

Present: S. Ali Hassan Rizvi, J.

Mst. SAMINA AFZAAL and others--Petitioners

versus

ZAFAR ULLAH TARAR, ADDL. DISTT. JUDGE, LAHORE

and another--Respondents

W.P. No. 643 of 2009, decided on 5.3.2009.

Order

At the very outset Muhammad Afzaal Respondent No. 2 stated that he would not engage a counsel and would make his submissions himself.

2.  I have heard the learned counsel for the petitioner and also Respondent No. 2.

3. The facts are that in a family suit brought by Mst. Samina Afzaal and her children (Petitioners No. 2 to 6) seeking recovery of maintenance, the learned Judge, Family Court had passed an order on 24.11.2008 directing payment of interim maintenance at the rate of

Rs. 3000/- per head. Respondent No. 2 did not pay even a single penny and preferred an appeal which was entrusted to Mr. Zafarullah Khan Tarar, learned Additional District Judge, Lahore (Respondent No. 1 herein) against the order dated 24.11.2008.

4.  The petitioners moved a written application before the learned Additional District Judge pointing out that the appeal was not competent and that the same was illegally entertained. The learned Additional District Judge did not pay heed to the application whereupon the petitioners filed the present writ petition, contending that the appeal before the learned Additional District Judge, against the order dated 24.11.2008 directing payment of interim maintenance, did  not lie and that the order passed by the learned Additional District Judge on 19.12.2008 one sidedly decreasing the maintenance allowance to

Rs. 1000/- per head, was without lawful authority. On 16.1.2009, the writ petition was admitted and operation of the impugned order dated 19.12.2008 passed by Respondent No. 1 was suspended. Thereafter, on 13.2.2009, this Court passed another order directing that there would be no restriction in disposing of the appeal pending before Respondent

No. 1 and likewise the trial Court was directed to continue with the proceedings with a clean slate.

5.  Appeal is still pending although  the learned Judge, Family Court vide judgment/decree dated 17.2.2009 decreed the suit to the extent of Petitioners No. 2 to 6 who were daughters/sons of Mst. Samina Petitioner No. 1 and Muhammad Afzaal Respondent No. 2. I have no doubt in my mind that no appeal lay against the order passed by the learned Judge, Family Court directing payment of interim maintenance allowance. The expression "decision" as appearing in Section 14 of the Family Court Act, 1964, has already received judicial interpretation in many cases. It was ruled that the word "decision" will have to be read ejusdem generis with the expression "decree". In other words, it was laid down that no appeal lay against any interim order passed by a Judge, Family Court and that only final order would be covered by the word "decision". Muhammad Akram vs. Mst. Raheela etc. (PLD 1999 Lahore 33) may be referred to as a direct authority on the point. I, therefore, quite see that the appeal before learned Additional District Judge, Lahore filed against the order dated 24.11.2008 of the learned Judge, Family Court directing interim maintenance was not competent. Consequently  the  order  passed  thereon had also no legal efficacy. Even otherwise, the suit has already been decreed vide judgment/decree dated 17.2.2009 by the learned trial Court to the extent of petitioners/Plaintiffs No. 2 to 6. The said appeal had also become infructuous to that extent.

6.  For reasons stated above, I accept the writ petition and declare that the appeal before Mr. Zafarullah Khan Tarar, learned Additional Sessions Judge, Lahore preferred by Respondent No. 2 Muhammad Afzaal under Section 14 of the Family Court Act, 1964 against the interim order dated 24.11.2008 of the Judge, Family Court, Lahore was not competent. The same shall stand dismissed as such.

7.  A copy of this order is directed to be sent to Mr. Zafarullah Khan Tarar, learned Additional District Judge, Lahore for further guidance.

8.  No order as to costs.

(R.A.)      Petition accepted