Kaleem Ullah Vs ADJ Pattoki etc

FORM No. HCJD/C-121

Order Sheet

IN THE LAHORE HIGH COURT

LAHORE

Judicial Department W.P. No. 46489 of 2024 Kaleem Ullah. Vs. Addl. District Judge, Pattoki, etc. Sr.No. of Date of order/ Order with signature of Judge, and that of Parties” counsel, where order/ Proceeding necessary.

proceedings 28.04.2025 Rao Hammad Hassan Rahim, Advocate for petitioner.

The petitioner (Kaleem Ullah son of Allah Ditta) is aggrieved of order dated 09.07.2024 (“Impugned order”) passed by the learned Additional District Judge, Pattoki, District Kasur/ respondent No. 1, whereby while dismissing the appeal filed by the respondents No. 3 and 4 (“respondents”), direction has been issued to the learned Family Court to fix interim maintenance allowance of the minor respondent No. 4.

2.Despite service, no one has entered appearance on behalf of the respondent Nos. 3 and 4 therefore they are proceeded against ex-parte.

3.Learned counsel for the petitioner states that through the appeal filed before the appellate Court, the respondents only challenged order dated 13.09.2023 passed by the Family Court, whereby application filed by the respondents to file USB in evidence had been declined and while passing the

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impugned order dismissing the appeal to that extent by treating the said application as premature, the learned appellate court without commenting upon the legality of order dated 11.03.2023 passed by learned Judge Family Court, whereby the said court declined to fix the interim maintenance allowance of the minor, directed the said court to fix maintenance allowance despite the fact that said order had not been challenged before the Appellate Court and on the basis of the same it is claimed that the said jurisdiction was not vested in the court as nothing was challenged before the said court relating to fixation of the interim maintenance allowance.

4.The perusal of record shows that through the appeal, respondent had only challenged to order dated 13.09.2023 passed by the Family Court, whereby application under Section 7(2) of the Family Court Act, 1964, was partially allowed but the relief to the extent of production of USB as additional evidence had been declined being devoid of merits and the appeal to that extent has been dismissed on merits by treating the said application as premature. The order to the said extent being in favour of the petitioner has not been

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called in question through this petition. However, it has been claimed and observed through contents of appeal that the order dated 11.03.2023 declining the fixation of maintenance had not been called in question. The operative portion of said order for purpose of convenience is reproduced below:

“Perusal of the file reveals that plaintiffs/petitioner filed instant suit for recovery of maintenance allowance with the contention that marriage between the parties solemnized on 08.01.2019. Contrary, defendant also filed written statement with the assertion that marriage between the parties had not taken place. It is note-able that Nikkahnama also had not been appended with plaint. During course of arguments, learned counsel for the plaintiffs has alleged that Nikkah was verbally solemnized between the parties. In this scenario, plaintiff is under obligation to establish happening of alleged Nikah, allegedly executed between the parties. Therefore, interim maintenance allowance of minor was not fixed at the time of appearance of defendant. So, in the present situation that instant petition for fixation of interim maintenance allowance is hereby dismissed being disposed of.”

5.It is claimed that as the said order was not further challenged before the appellate court or the High Court, the same still holds the field. No one has appeared to contest the said assertion and nothing is available on the record to show that any

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such remedy was availed. It appears that the learned appellate court may not have been apprised that the Family Court had declined to fix interim maintenance allowance by providing reasoning for the same and the said court may have passed the impugned order under the impression that the said aspect of the matter had escaped the attention of the Family Court, hence, inadvertently said direction may have been issued.

6.An order which could directly be called in question but had not been challenged through appropriate proceedings by invoking available remedy could not be called in question through collateral proceedings. It is pertinent to mention here that this Court is cognizant of the fact that the appellate court has got ample jurisdiction to mould the relief if a party is entitled to the same and this Court in its constitutional jurisdiction does not ordinarily interfere in exercise of such jurisdiction by the appellate court but for that purpose the matter should be directly in issue before the appellate court for decision and decision should not ordinarily be passed in collateral proceedings as has been done in the instant case.

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7.It is a well settled principle that past and concluded transactions which have attained finality by virtue of judgments of courts cannot be reopened in subsequent proceedings and more so in proceedings which are not directly on the point but arise collaterally only. Reliance in this regard is placed on 1980 CLC 664 (Karachi)

(MUHAMMAD AHMAD versus MRS. QAMAR

ANWAR SHEIKH), PLD 1980 Lahore 767

(MUHAMMAD SADIQ versus ABDUL KARIM

AND ANOTHER) and PLD 1978 Karachi 851 (Mst. MOTIBAI BOMAN IRANI AND 3 OTHERS versus ABBASBHOY MOOSAJI (THROUGH HIS LEGAL REPRESENTATIVES)). More so, when the learned Family Court could regulate its own procedure and procedural matters unless causing prejudice to the other party should not be interfered with by higher forums. Reliance in this regard is placed on 2016 SCMR 1821 (Lt. Col NASIR MALIK versus ADDITIONAL DISTRICT JUDGE, LAHORE and others), 2014 SCMR 1365

(MUHAMMAD TABISH NAEEM KHAN versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others) and 2011 SCMR 1361 (FARZANA

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RASOOL and 3 others versus Dr. MUHAMMAD BASHIR and others).

In this view of the matter it is held that the appellate court was not justified to issue direction to the learned Family Court to fix interim maintenance allowance of the minor/respondent No. 4 without commenting upon the legality of order dated 11.03.2023 which had neither been challenged nor was subject matter of the appeal pending before the appellate court and the order of the appellate court issuing such a direction has impliedly set-aside the said order dated 11.03.2023 without considering the same and commenting upon its legality, hence, to the said extent is not sustainable and is liable to be modified accordingly.

8.It is further observed that as none is in attendance on behalf of the respondents to contest this petition, therefore, in the given circumstances it would be appropriate to direct the trial court to decide the matter pending before it expeditiously, without giving unnecessary adjournments to any of the parties and providing opportunity of leading evidence and hearing to the parties while also keeping in view the principles that “justice delayed

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is justice denied” and “justice hurried is justice buried” and balance is to be kept between these two principles. Order accordingly. In the meantime, order relating to fixation of interim maintenance allowance in compliance of direction of the appellate court shall not be announced, however, if the petitioner causes delay in conclusion of the trial, the trial court may if deemed appropriate pass any order on its own merits in accordance with law.

9.In view of the above, this petition is disposed of with observation that this order shall not be a bar against the Family Court to pass an order for fixation of interim maintenance at any subsequent stage if under the given circumstance of the case at the said stage respondent is found to be entitled to the same. Furthermore, as this order has been passed in the absence of the respondents, this order shall not be treated as a bar against any remedy available to them under the law.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan

APPROVED FOR REPORTING.

Judge