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Petitioner: GHULAM MUHAMMAD VS Respondent: SYED IMAM ALI SHAH
1992 M L D 1697
1992 M L D 1697
[Lahore]
Before Muhammad Munir Khan, J
GHULAM MUHAMMAD
Versus
Syed IMAM ALI SHAH and others
W.P. No. 810‑F of 1989/BWP, decided on 27th June, 1989.
(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Decree in suit for maintenance‑‑‑Validity‑‑‑Family Court had attended to evidence produced by parties and had given sound and cogent reasons for believing evidence of wife and for disbelieving evidence produced by husband‑‑‑Petitioner, although took plea of res judicata, yet failed to place on record copy of order of Family Court passed in earlier suit for recovery of maintenance allowance‑‑‑Earlier suit, however, having not been decided on merits, no question of application of principle of res judicata would arise‑‑‑Courts below had not flouted any provision of law‑‑‑Appellate Court had applied conscious mind to points raised before it‑‑‑High Court found it not desirable to interfere with appreciation of evidence of Courts below in exercise of Constitutional jurisdiction. [Res judicata].
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 11‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S. 5 & Sched.‑‑ Earlier suit having not been decided on merits, no question of application of principle of res judicata would arise.
Rao Abdul Rauf Najmee for Petitioner.
ORDER
Through this Constitutional petition Ghulam Muhammad, petitioner, wants this Court to declare judgments and decrees, dated 23‑5‑1988 and 14‑3‑1989, passed by Judge Family Court, Bahawalnagar, respondent No. 1, and learned District Judge, Bahawalnagar, respondent No. 2, respectively, to be without lawful authority and of no legal effect.
2. The facts leading to this petition briefly are that on 22‑4‑1984 Mst. Nasim Akhtar, respondent No. 3, filed a suit for the recovery of Rs.9,600 as maintenance money for 4 years at the rate of Rs.2l0 per month. The suit was resisted. The plea of res judicata was also raised as one of the preliminary objections. The trial Court framed 5 issues. The parties led evidence in proof/disproof of the issues. The trial Court decreed the suit granting maintenance allowance of Rs.7,200 for 3 years before the filing of the suit, at the rate of _Rs.200 per mensum, on 23‑5‑1988. The appeal filed by the petitioner against this judgment and decree was dismissed by the learned District Judge on 14‑3‑1989, hence this petition.
3. Before me, the learned counsel for the petitioner has challenged the findings of the Courts below on Issues Nos. 1, 2 and 4 which are as under:‑‑
Issues.
(1) Whether the plaintiff was neglected and not maintained by the defendant? O.P.P.
(2) If issue No. 1 is proved, to what monthly maintenance allowance the plaintiff is entitled to recover from the defendant? O.P.P.
(4) Whether the matter in issue is barred under section 11 of C.P.C. ? O.P.D.
As for issues Nos. 1 and 2, the learned counsel submitted that the trial Court has not properly appreciated the evidence led by the patties and that the petitioner had been paying Rs.200 as monthly maintenance to his wife respondent No. 3. On issue No. 4 the learned counsel maintained that before the filing of the present suit Mst. Nasim Akhtar, respondent, had filed 3 suits. One for the dissolution of marriage, second for dower money and third for maintenance allowance. Since the suits were compromised on 29‑1‑1983 arid the parties had made statements before the Court whereby the petitioner had .greed to transfer a house located in Rahimyar Khan through registered deed in favour of his wife and the wife had also stated that if she did not come to his house after the transfer of the house then she would have no right in the house nor she would claim any dower or maintenance, therefore, the present suit was hit by the principle of res judicata and as such could not have been decreed.
4. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the learned Judge, Family Court has attended to the evidence produced by the parties and has given sound and cogent reasons for believing the evidence led by respondent No. 3 and for disbelieving the evidence produced by the petitioner. I further find that the petitioner has admitted in his statement before the trial Court that Rs.200 were fixed as monthly maintenance of the plaintiff at the time of Nikah. He has not produced any reliable evidence in proof of the payment of monthly maintenance to his wife for 3 years before the filing of his suit. On the other hand, he took divergent pleas. On the one hand lie stated that he had been paying the monthly maintenance to his wife and on the other hand he stated that in view of a compromise between the parties, '1st. Nasim Akhtar, respondent, had waived her right to maintenance allowance on the condition of the transfer of the house in her favour which was accordingly transferred through registered gift deed. An examination of the statement made by the petitioner on 29‑1‑1983 and the order passed by the Court shows that the respondent had not waived her right to receive maintenance allowance and the agreement between the parties related to the suit for dissolution of marriage and suit for the recovery of dower money. Copy of the order, dated 1‑2‑1983 (Annexure `L') shows that only suit for dissolution of marriage, was dismissed as having been withdrawn. The petitioner has failed to place on record the copy of the order of Judge, Family Court, passed in earlier suits for the recovery of the maintenance allowance. Furthermore, the earlier suits were not decided on merits so question of A application of principle of res judicata does not arise. The Courts below have not flouted the provisions of relevant law. The learned District Judge has applied conscious mind to the points raised before him. It is not desirable to interfere with the Courts below's appreciation of evidence, in excercise of the writ jurisdiction of this Court.
5. The upshot of the above discussion is that there being no merits the petition fails and is dismissed in limine.
AA./G‑41/L Petition dismissed.