Hanzla Khalid etc Vs Khalid Parvaiz etc

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

W.P.No. 10200 of 2019

Hanzla Khalid, etc. Vs. Khalid Parvaiz, etc. Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 21.02.2019. Qazi Shahid Rasheed, Advocate for petitioners.

Through this constitutional petition, the petitioners, who were plaintiffs in a family suit for recovery of maintenance allowance, etc., have assailed the findings recorded by the learned courts below dated 30.11.2018 and 17.09.2018, whereby the said courts have partially decreed the claim of the petitioners/plaintiffs and seek decree of the suit as prayed for.

2.Briefly stated facts of the case are that marriage between respondent No.1 and petitioner No.5 was solemnized on 12.01.2003 and from the said wedlock minor petitioners No. 1 to 4 were born. On 14.10.2017, the petitioners/plaintiffs filed a family suit for recovery of maintenance allowance, medical expenses of petitioner No.1 and delivery expenses against the respondent No.1/defendant, in response to which the respondent filed contesting written statement. On 09.07.2018, the respondent was proceeded against ex-parte. On conclusion of the ex-parte evidence, vide judgment and decree dated 17.09.2018, the learned trial court held the petitioners entitled to receive Rs. 2500/- each as maintenance from the respondent. The petitioners preferred appeal. The learned appellate court vide judgment and decree dated 30.11.2018 modified the decree of the learned trial court and held the minor petitioners No. 1 to 4 entitled to receive maintenance

W.P.No.10200 of 2019

allowance @ Rs. 3500/- each from the date of institution of the suit till their legal entitlement with 10% annual increment, whereas the petitioner No. 5 was held entitled to receive Rs. 4000/- per month as maintenance from the institution of the suit till subsistence of marriage or in case of divorce till “iddat” period. Both the afore- referred judgments and decrees are under challenge through this constitutional petition.

3.Heard. Record perused.

4.The ground agitated by the counsel for the petitioners is that the maintenance allowance decreed by the learned appellate court is not in accordance with the actual financial position of the respondent and stated that respondent is working in Greece and earning 2000 Euro per month and can easily pay maintenance allowance of the petitioners @ Rs. 15,000/- per month each. It is noticed that at trial no documentary evidence has been brought on the record by the petitioners to prove their claim regarding the respondent living for earning in Greece and sound financial status of the respondent. Although the respondent was proceeded against ex-parte vide order dated 09.07.2018 by the learned trial court yet the written statement of the respondent is available on the record which clearly denies the claim of the petitioners and it is stated by the respondent in the written statement that he is living in Pakistan now and he is agriculturist by profession and earns Rs. 15,000/- per month. The petitioners were required to prove their stance and negate the stance taken by the respondent by producing some evidence on the record but the same has not been done and there is word of mouth of the petitioner’s side only without any material to substantiate the same. In absence of any documentary evidence, the learned appellate court was justified in partially decreeing the claim of the petitioners. No exception can be taken to the same.

W.P.No.10200 of 2019

5.Learned counsel for the petitioner has failed to point out any misreading, non-reading or illegality in the impugned judgments. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. This Court while exercising constitutional jurisdiction does not ordinarily reappraise the evidence produced before the courts below to substitute findings of facts recorded by the said courts, nor gives its opinion regarding quality or adequacy of the evidence unless any misreading, non- reading of record or any illegality is pointed out, which have not been established on the record, hence, there is no ground to set-aside the said findings of fact.

6.For what has been discussed above, this petition being devoid of any merits dismissed in limine.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan