-Appeal, filing of---Condonation of delay----Maintenance allowance for minors, enhancement of--

 2016 S C M R 1821
[Supreme Court of Pakistan]
Present: Iqbal Hameedur Rahman, Manzoor Ahmad Malik and Ijaz-ul-Ahsan, JJ
Lt. Col. NASIR MALIK---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents
Civil Petition No. 1428-L of 2016, decided on 14th July, 2016.
(On appeal against the order dated 30-3-2016 passed by the Lahore High Court, Lahore, in W.P. No.7222 of 2016)

(a) Limitation Act (IX of 1908)---

----S. 5---Appeal, filing of---Condonation of delay---Sufficient cause---Counsel for appellant out of country for performance of Hajj---Appeal was filed with a delay of 144 days---Each day of delay had to be explained---Delay in filing present appeal was not 30/40 days during which Hajj was performed, rather it was a delay of 144 days, therefore, the Appellate Court had rightly dismissed the appeal on limitation.

(b) Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Civil Procedure Code (V of 1908), S. 151---Maintenance allowance for minors, enhancement of---Family Court, powers of---Scope---Order for maintenance allowance for minors was passed by Family Court---Mother of minors sought enhancement in maintenance allowance through filing an application under S. 151, C.P.C. before the Family Court---Objection of father that enhancement in maintenance allowance could only be sought by filing a separate suit---Validity---Provisions of Civil Procedure Code, 1908 were not stricto sensu applicable to the proceedings under the Family Courts Act, 1964, as such the Family Court was competent to adopt its own procedure---Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith---Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S. 151, C.P.C.) and if necessary make alteration in the rate of maintenance allowance--- Objection was rejected accordingly.

M. Abdus Sattar Chughtai, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Aish Bahadur Rana, Advocate Supreme Court for Respondents Nos.2 - 4.

Date of hearing: 14th July, 2016.

JUDGMENT

IQBAL HAMEEDUR RAHMAN, J.---Through this petition for leave to appeal, the petitioner has called in question the order dated 30.03.2016 passed by the Lahore High Court, Lahore, in W. P. No.7222/2016, whereby the said writ petition filed by the petitioner has been dismissed in limine.

2. The concise facts giving rise to the instant petition are that minors respondents Nos. 3 and 4 (hereinafter to be referred as "the respondents") filed a suit for recovery of maintenance allowance in the year 2008 which was decreed by the Family Court vide order dated 24.02.2010 and they were held entitled to maintenance allowance @ Rs.8,000/- per month each w.e.f. June, 2007. The maintenance allowanced was allowed to respondent No. 3 till he attains the age of majority and to respondent No. 4 till she is married, along with 10% annual increase. Against the said order, the petitioner preferred an appeal before the appellate Court, which was dismissed vide judgment dated 25.02.2011. Thereafter, the respondents filed an application before the Family Court in the year 2012 and sought enhancement of their maintenance allowance on the ground that they are now grown ups and studying in Beacon House School in class 5 and 3 respectively and their actual average monthly expenditure on account of school fees, uniform, Qari sahib fee, transport, foods and other necessities, etc. are higher than the maintenance allowance due to rise in inflation. It was further asserted in the application that the petitioner is serving in the Pakistan Army as a Major and is getting a salary of Rs.81,311/- per month and he could easily afford the increase sought for by the respondents. In addition to the same the respondents also prayed in the application that a direction may be issued to the petitioner/judgment debtor to pay balance decretal amount (arrears of maintenance allowance i.e., Rs.972,184/-) without further delay. Upon filing of the said application, summons were issued to the petitioner in accordance with law as well as through publication in the newspaper daily "Pakistan", but inspite of the same he did not appear. Consequently, he was proceeded ex parte on 06.07.2014 and the learned Family Court after recording ex parte evidence of the respondent allowed the said application vide judgment dated 16.04.2015 by holding as under:-

"7. Perusal of the record transpires that in support of her claim mother of the petitioners also produced pay slip of respondent/judgment debtor as Ex.P-2 perusal of same transpires that it is written upon pay slip that gross salary/total pay and allowance of respondent/judgment debtor in 2014 is Rs.1,13,442/- and after certain monthly deductions i.e. Rs.32,538/- his net salary is Rs.80,904/-. Record further demonstrates that mother of petitioners submitted fee slips of minors/petitioners as Ex.P-3 and Ex.P-4 which established that minors/petitioners are students of Beacon House School System and fee of two months of Malahat Nasir is Rs.22,880/- and fee of two months of Wasim Malik is Rs.24,240/-. Record demonstrates that previous decree was passed on 24.02.2010. Perusal of order/judgment and decree dated 24.02.2010 shows that maintenance allowance of minors was fixed @ Rs.8,000/- per month per head with 10% annual enhancement. Now the petitioners have come to this court on the ground of raising inflation and prayed for enhancement of maintenance allowance as per present commodity ratio. Record further transpires that minors are school going children and it is legal as well as moral right of every minor/child that he be brought up in healthy atmosphere and be brought up with the feelings of self respect along with educational necessities and it is duty of the father to brought up his children as per his financial status. I relied upon "2005 CLC 1913" it was held by the Worthy Appellate Court that enhancement was granted upon the rising inflation, hence relying upon above citations and evidence produced by the petitioner, petitioner has successfully succeed to prove her contention through oral as well as documentary evidence. Hence maintenance allowance decreed in favour of petitioners Nos. 1 and 2 @ Rs.8,000/- per month per head with 10% annual increase vide judgment and decree dated 24.02.2010 is hereby enhanced to the tune of Rs.15,000/- per month per head with from filing of this petition till his attaining of age of majority of petitioner No. 1 and till her marriage of petitioner No. 2 with 10% annual enhancement. 10% enhancement shall be calculated after passage of one year of date of decision."

Being aggrieved, the petitioner filed a time barred appeal before the appellate Court on 07.09.2015 on the ground that the respondents had fraudulently and unlawfully filed the application under section 151, C.P.C. for enhancement of maintenance allowance without notice and knowledge of the petitioner during the pendency of W. P. No.7517/2011, which was filed by him and pending adjudication before the High Court, as such enhancement could not be allowed by the Family Court. The said appeal was dismissed by the appellate Court vide judgment and decree dated 21.12.2015 by holding as under:-

"6. Perusal of record shows that the appellant filed an appeal before District Judge, Lahore against judgment and decree dated 24.02.2010 which was dismissed on 25.02.2011. Thereafter appellant filed a Writ Petition No. 7517/2011 in Honorable Lahore High Court, Lahore in which Honorable Lahore High Court, Lahore passed the order with the observations:-

"Judgment and decree of learned trial court is suspended with the direction to the present appellant to deposit Rs.1,06,000/- in trial court and further to pay Rs.5,000/- to each minor per month.

7. It further shows that Hon'ble Lahore High Court, Lahore also observed that: -

"If the petitioner has not complied with the above mentioned order dated 16.06.2011 in its letter and spirit then the learned Executing Court shall proceed further in accordance with law. Anyhow, if the above mentioned order has been complied with by the petitioner, in its letter and spirit, then, interim stay already granted by this court shall continue till the next date of hearing".

8. Examination of record shows that present appellant had not deposited the maintenance allowance of the minors in executing court and he was proceeded against ex parte on 19.07.2012 and interim stay was vacated due to non deposit of maintenance and executing court issued Robkar for attachment the salary of judgment debtor. Record also shows that counsel for the judgment debtor appeared in the executing court on 20.09.2013 and submitted his fresh power of attorney. It is evident from plain reading of order sheet that on 13.12.2013 appellant appeared in person and deposited Rs.2,51,000/- with the assurance that he will regularly deposit monthly maintenance of minors in the account of mother of the minors. It is also on the record that appellant also moved an application for setting aside ex parte to proceeding order which was dismissed due to non-prosecution.

9. Perusal of record also depicts that respondent No. 2 in application under section 151, C.P.C. produced pay slip of appellant/judgment debtor as Exh.P-2 which shows that net salary of appellant/judgment debtor is Rs.80,904/-. It is further shows that respondent No. 2/mother of petitioners also produced fee slips of respondents Nos. 3 and 4/petitioners as Exh.P-3 and Exh.P-4 which clearly shows that respondents Nos. 3 and 4/petitioners are students of Beacon House School System and fee of two months of Malahat Nasir is Rs.22,800/- and fee of two months of Wasif Malik is Rs.24,240/-. Keeping in view the facts and circumstances of the case and evidence on record order of the learned trial court is in accordance with law, therefore finding of learned trial court is hereby confirmed.

10. It is pertinent to mention here that appellant moved this appeal on 07.09.2015 and also submitted an application under section 5 of Limitation Act with the contention that counsel of the appellant proceeded to perform Hajj and due to the reason he could not file the instant appeal within time.

11. From perusal of record it shows that appellant filed this appeal with a delay of 144 days from passing the impugned order and no plausible reason has been put forward for condonation of delay. Mere an assertion that counsel for the petitioner Malik Abdul Sattar Chughtai proceeded to perform Hajj and due to the reason he could not file instant appeal within time cannot constitute a plausible ground. Keeping in view section 5 of Limitation Act each day has to be explained whereas the delay of 144 days has not been explained."

Being dissatisfied, the petitioner then approached the High Court by filing W. P. No. 7222/2016, which has been dismissed in limine vide impugned order, hence this petition.

3. The learned counsel for the petitioner contended that the respondents could not have sought enhancement of maintenance allowance by filing application under section 151, C.P.C. rather they should have filed a separate suit. It was further contended that the enhancement is not in consonance with the financial status of the petitioner. It was also contended that the petitioner through his second marriage has four other children, as such the increase in the maintenance allowance of the respondents is unjustified.

4. Heard. We have gone through the impugned order as well as the judgments/orders of the Courts below and have also perused the material available on the record.

5. We have noticed the contumacious conduct of the petitioner from the very outset. Inspite of passing of judgment and decrees in favour of the respondents, the petitioner has avoided payment of the same, which constrained the respondents to file an application for the recovery of arrears of maintenance allowance to the tune of Rs.972,184/- as well as enhancement. Thereafter when respondents' application was accepted, the appeal of the petitioner was dismissed and he approached the High Court by filing a writ petition, a direction was given by the High Court to the petitioner, consequent thereto he made a paltry payment to the respondents. It has also been observed by us that inspite of issuance of summons in accordance with law as well as through publication in the newspaper, the petitioner avoided appearing before the Family Court as such the Family Court was constrained to proceed ex parte and allowed enhancement @ Rs.15,000/- per month per head. Thereafter, the petitioner filed a time barred appeal against the said order and the reason for the delay was stated that his particular counsel was out of country to perform Hajj due to which the appeal could not be filed in time. Such reasons have never been considered by the Courts as sufficient cause for condoning the delay. Moreover, each day of the delay has to be explained. It was not a delay of 30/40 days during which Hajj is performed, rather it was a delay of 144 days, therefore, the learned appellate Court had rightly dismissed the appeal of the petitioner on limitation as well as on merits.

6. As far as the contention of the learned counsel for the petitioner that enhancement in maintenance allowance cannot be sought through an application under section 151, C.P.C. but through a separate suit is concerned, suffice it to say that the provisions of C.P.C. are not stricto sensu applicable to the proceedings under West Pakistan Family Courts Act, 1964, as such the Family Court was competent to adopt its own procedure, therefore, the objection raised by the learned counsel is misconceived. The legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Under the provision of section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matter specified in the schedule. The matter of maintenance is at serial No. 3 in the schedule. Thus, the Family Court has exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance is granted thereafter, if the granted rate for per month allowance is insufficient and inadequate, in that case, according to scheme of law, institution of fresh suit is not necessary rather the Family Court may entertain any such application and if necessary make alteration in the rate of maintenance allowance.

7. Furthermore, all the Courts below have concurrently enhanced the maintenance allowance after giving due consideration to the needs/requirements of the respondents and by taking into account the financial status of the petitioner. Besides, the concurrent findings of facts recorded by all the Courts below do not suffer from any illegality, infirmity or perversity, which could convince us to interfere in the same while exercising our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. In this regard reliance can be placed upon the case of Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs. and others (2015 SCMR 1081), wherein it has been held as under:-

"15. There are concurrent findings of fact recorded by the learned courts below against the appellants. This Court in Muhammad Shafi and others v. Sultan (2007 SCMR 1602) while relying on case-law from Indian jurisdiction as well as from the Pakistani jurisdiction has candidly held that this Court could not go behind concurrent findings of fact "unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible." No such thing could be brought on record to warrant interference by this Court."

8. In the above perspective, we are not inclined to interfere in the impugned order of the High Court. Resultantly, leave to appeal is refused and the petition is dismissed being devoid of merits.

MWA/N-10/SC Petition dismissed.