This single order shall also decide W.P. No, 1020/03 as both these writ petitions arise out of single consolidated judgment.
2. The facts are that the petitioners filed Family Suit No, 351 dated 12.7.2002 for recovery of maintenance in respect of Petitioners. Nos, 2 and 3 as well as far maintenance for Iddat period in respect of the Petitioner No, 1 The petitioner filed another Family Suit No, 376 dated 23.7.2002. for recovery of dowry articles. Petitioner No, 1 had claimed dowry articles of the value of Rs, 701,900/- in her suit. Both the suits were contested by the respondent. The learned Judge Family Court Attock consolidated both the suits and framed the following issues:- ISSUES
1. Whether the plaintiffs are entitled to recovery oppast or future maintenance if so to what extent and at what rate?
2.Whether the plaintiff No, 1 is entitled to recovery of dowry articles as per list attached with the plaint or price thereof in alternative? OPD
3. Relief.
3. After recording evidence of the parties the learned Judge Family Court decreed the suit for maintenance in the sum of Rs, 1000/- per month per child (Petitioners Nos, 2 and 3) and also directed that Petitioner No, 1 shall be paid maintenance at the rate of Rs, 1000/- to the extent of period of Iddat. Upon issue regarding the recovery and value of dowry articles, the learned Judge Family Court found that Petitioner No, 1 was entitled to the articles the value of which was placed at Rs, 10000/- by the Court. Vide consolidated judgment dated 21.1.2003, the learned Judge Family Court passed the decrees in question in the terms herein before stated. Feeling aggrieved of the said judgment and decree and also being of the view that no appeal lay against the said judgment and decree under Section 14(2)(b & as amended, the petitioners have preferred the instant writ petitions.
4. At the very outset the learned counsel for the Respondent No, 1 has taken the objection that writ petition(s) were not competent as the judgment and decree of the Judge Family Court both in respect of the grant of maintenance as well as dowry was appealable before learned appellate Court under Section 14 of Family Courts Act 1964.
5. The learned counsel for the petitioner has placed reliance upon the case of Mussarat Khateen VS. Zafar Ali 2002 M LD 1526, Muhammad Shareef VS. Judge Family Court 2002 CLC 270 and M.
Javed lqbal. VS. Tahira Naveed 2002 CLC 1748 to contend that as the maintenance granted per head to the petitioners was Rs, 1000/- only, the appeal before the District Court was not competent under Section 14(2) (c). It is further submitted that as the decree in respect of the dowry articles was passed only in the sum of Rs, 10,000/- as against the prescribed amount of Rs, 30,000/- in Section 14(2)(B), appeal against the decree for dowery was also not competent. According to the learned counsel, the only remedy available was in exercise of writ jurisdiction.
6. On the other hand, the learned counsel for Respondent No, 1 has placed reliance upon a Division Bench judgment of Peshawar High Court. cited as Khawaja Muhammad. VS. District Judge Mansehra 1999 M LD 2723 and Mst. Neelam Nosheen. VS. Raja Muhammad Khakan 2002 M LD 784 to contend that infact all the petitioners were granted a decree which exceeded Rs, 1000/- in aggregate and that the appeal in case of maintenance was not barred in the present case.
Regarding the suit for recovery of dowery it was contended that the petitioner has claimed a sum of Rs, 7,00,000/- in dowry and that the restriction placed upon the right of appeal under Section 14(2)(b) did not apply to the petitioner. Further reliance was placed on Noor Muhammad vs. Muhammad Farooq 1999 M LD 3437 to contend that a constitution petition was not competent when the appeal under Section 14 of the West Pakistan Family Courts Act 1964 was not availed.
7. Arguments have been heard and record perused.
8. Although there is a divergence of opinion in cases cited by the parties, all the cases referred to by the learned counsel for the petitioner have been rendered by the Hon'ble Judges of this Court sitting singly. The case of Khawaj Muhammad 1999 M LD 2723 on the other hand is a judgment which has been rendered by a Division Bench of Peshawar High Court. In that case maintenance was decreed at the rate of Rs, 500/- per month for each minor. As there were three minor children in all in that case, the joint decree and the amount exceeded the prescribed amount as prescribed in Section 14 of the West Pakistan Family Courts Act 1964 and it was held that in an appeal would certainly lie before the learned District Judge. It was further held that the decretal amount would be construed for each month and not for each head. The reasoning adopted by the learned Division Bench advanced the cause of the minors as the contrary view would amount to depriving them of a right of appeal.
9. It may further be observed that the petitioners before this Court are the plaintiffs who had filed the suit for maintenance and dowry respectively and which were not decreed in accidence with their claim. The grievance is that of the partly successful plaintiffs and the bar of Section 14(2)(b)
(c) of the West Pakistan Family Courts Act 1964 shall not apply to them. The abridgement of the right of appeal as contained in the aforesaid provision of law, as per the object and spirit of the said legislation would apply to the judgment debtor and not to decree-holder as the legislature has thought it fit not to provide an appeal against a decree for a relatively small amount both in case of claim for maintenance as well as that of the claim for dower or dowry.
10. For the above reasons, following the dictum laid down in the case of Khawaj Muhammad Supra, it is held that right of appeal in both cases was available to the petitioners before appropriate appellate forum under Family Courts Act 1964. The writ petitions in this view of the matter are not competent and are hereby dismissed.
11.The petitioners may, however approach the appropriate appellate forum under West Pakistan Family Courts Act 1964 for redress of their grievance. The learned appellate Court if approached shall consider the question of limitation favourably in view of the fact that the petitioners acted bonafide in filing these writ petitions in face of view expressed in the judgments cited by the petitioners before this Court with which, most humbly I find myself unable to agree on the basis of the Division Bench Judgment of Peshawar High Court. Parties to bear their own costs.