' TALAAT QAYUM QURESHI, J.---Through writ petition in hand, the petitioner has questioned the judgments/decrees dated 24-5-2003 and 27-10-2003 passed by respondents Nos.3 and 4 respectively being illegal, unlawful, without lawful authority and without jurisdiction.
2. Mr. Fazal Karim, Advocate the learned counsel representing the petitioner argued that respondent No.1 had filed suit for recovery of dower, dowry, maintenance for herself and for respondent No.2 which was contested by the petitioner. A suit for grant of decree for restitution of conjugal rights against respondent No.1 was also filed by the petitioner. The learned trial Court after framing issues, recording pro and contra evidence of the parties diSsolved the marriage of the petitioner with respondent No.1 on the basis of 'Khula' and-respondent No.1 was held entitled to maintenance at the rate of Rs.2,000 per month for 'Idaat' period and respondent No.2 who is daughter of the petitioner was also granted decree for recovery of maintenance at the rate of Rs.2,000 per month with effect from August, 2000 till passage of the decree with increase of 20% per annum till she was taken in the custody of the petitioner or her marriage vide judgment and decree dated 24-5-2003. The appeal filed by the petitioner was also dismissed vide judgment and decree dated 27-10-2003. The judgments and decrees passed by the Courts below were not based on proper appreciation of evidence, lience need interference.
3. It was also argued that the learned trial Court had fixed maintenance for respondent No.2 at the rate of Rs.2,000 per month with 20% increase per annum. The amount of maintenance was not commensurating with the income of the petitioner, therefore, the same was excessive and needed reduction. It was also argued that according to the dower deed placed on record as Exh.D.W.2/1, 32 Tolas gold ornaments were handed over to respondent No.1 at the time of Nikah and 18 Tolas were to be paid later on. The execution of Nilcahnama/ dower deed Exh.D.W.2/1 was admitted by the respondent No.1, therefore, while dissolving the marriage on the basis of "'Chula' the respondent No.1 should have been directed to return gold ornaments received by her but the same was not done, hence the Courts below have committed illegality. Reliance in this regard was placed on 2000 YLR 956.
4. We have heard the learned counsel for the parties and perused the available record.
5. The arguments of the learned counsel for the petitioner that the learned trial Court has fixed excessive amount of maintenance has no force. It is by now settled law that the Court has to determine the amount of maintenance to be paid by father to his children while having regard to the social standing of the parties and the extent of father's means. Grant of maintenance to the children is not exgratia grant, a father is bound to maintain his children. So far as the quantum of maintenance is concerned, the same pertains to the realm of facts, which can be properly appreciated by the Courts below on analaysing the evidence produced by the parties. In the case in hand it was admitted at the bar that the petitioner was a practising lawyer having more than 7 years standing. The petitioner in his statement recorded by the learned trial Court admitted that he was appearing in one or two cases daily in Courts. He further stated that he could maintain his family members properly and he has asked respondent No.1 to quit/leave her job. The father being practising lawyer enjoys good social status in the society and the mother being a lady Doctor also maintain good social standard and status, the children are, therefore, entitled to be maintained in accordance with the social set-up and standard of living of the family. When we kept these considerations in view, we are of opinion that the amount of maintenance fixed by the Courts below was commensurating the status/standing of the petitioner and, was not excessive.
6. The argument of the learned counsel for the petitioner that on passage of decree for dissolution on the basis of 'Khula' the petitioner was entitled to get 32 Toals gold ornaments back which had been given to her at the time of Nikah also has no force. In fact the handing over of the ornaments was to be proved by the petitioner through convincing evidence, which he failed to prove and when the gold ornaments were not handed over to respondent No.1, the question of return of the same would, therefore, not arise.
7. This Court in exercise of its Constitutional jurisdiction cannot interfere with the findings of fact, even if with appraisal of evidence it was possible to reach to a different conclusion, unless it was shown that such findings by the lower Court suffered from misreading/non-reading which had affected the findings on merit. In Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCM R 859) it was held:- "Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify jurisdiction defects. It is to be pressed into, service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitution/ Law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with afinding of fact, if it is founded on no evidence or is contrary to the evidence."
Similarly in Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCMR 769) it was held:-- "According to established law, High Court, cannot interfere in the findings of fact which may not be even concurrent even if on the appraisal of evidenCe it was possible to reach to a different conclusion unless it was shown that such a finding by the lower Court suffered from misreading or non-reading of evidence which had affected the findings on merits."
The impugned judgments and decrees are neither based on misreading/non-reading of evidence nor the same have been passed in violation of law, we therefore, do not feel appropriate to interfere with the same. Resultantly, the writ petition in hand is dismissed in limine.
Petition dismissed.
2004 M 12-13 1328 [Lahore] Before Maulvi Anwarul Haq, J WARIS KHAN and 8 others---Petitioners versus MUHAMMAD IQBAL---Respondent Civil Revision No.227-D of 2001, heard on 18th March, 2004.
(a) Punjab Pre-emption Act (IX of 1991)--- ----Ss.6 & 13---Qanun-e-Shahadat (10 of 1984), Art.46---Civil Procedure Code (V of 1908), 0.V1, R.1- --Suit for pre-emption---Plea of Zarar and Zaroorat---Pleadings---Object and Scope--- Statement made in plaint by deceased plaintiff---Admissibility-Both Trial Court and Appellate Court dismissed suit holding that Talbs had not been performed and that issue pertaining to Zarar and Zaroorat stood unproved---None of witnesses who were named in plaint and even son of deceased plaintiff had stated a word about Zarar and Zaroorat---Pleadings were not evidence and primary purpose of pleadings was to enable the parties to set down their respective pleas so as to further enable them to prove same in course of trial---Despite death of original plaintiff, the cause of action would survive to his Legal Representatives who were brought on record and one of them who appeared as witness, opted to remain silent on issue of Zarar and Zaroorat---Counsel for plaintiff had contended that evidence in the matter of Talbs had not been properly read by Courts below---Contention with regard to Zarar and Zaroorat was that statement made by deceased plaintiff in his plaint before his death and notice of Talb-IIshhad to the effect that he would suffer the loss in case he did not get land was admissible under Art.46 of Qanun-e-Shahadat 1984, being a statement of dead person having been made in the normal course of his business---Filing of a suit for pre-emption and giving a notice of Talb-IIshhad was not a business as envisaged by Art.46 of Qanun-e-Shahadat, 1984--- No foundation was laid in the pleadings or in the evidence for considering as to whether Art.46 of Qanun-e-Shahadat, 1984 would apply or not---Issue pertaining to Zarar and Zaroorat having stood unproved, concurrent findings of Courts below could not be interfered with---Suit was rightly dismissed by Courts below. [pp. 1329, 1330, 1331] A, B, C, E & F Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others 1991 SCM R 2001 and Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 ref.
(b) Civil Procedure Code (V of 1908)- ----0.V1, R.1---Pleadings---Purpose of---The primary purpose of pleadings was to enable the parties to set down their respective pleas so as to further enable them to prove same in the course of trial. [p. 1331] D Ch. Afrasiab Khan for Petitioners. Ch. M. ,Tariq for Respondent.
Date of hearing: 18th March, 2004.
' Vide Mutation No.2743 attested on 18-1-1993 the respondent purchased the suit-land for Rs.5,00,000. On 17-5-1993 Waris Khan the predecessor-in-interest of the petitioners filed a suit for possession of the suit-land by pre-emption. According to him, the land had, in fact, been sold for Rs.1,00,000. He claimed to be a co-sharer. He pleaded talbs and also pleaded that he will suffer loss in case he does not get the suit-land. The suit was resisted by the respondent. Issues were framed.
Evidence of the parties was recorded. The learned trial Court found that the deceased plaintiff who died after filing the suit, was possessed with a superior I A right of pre-emption. He found that the land was purchased forRs.5,00,000 as mentioned in the mutation. He dismissed.The suit by holding that talbs have not been performed and that Issue No.3 pertaining to Zarar and Zaroorat stands unproved. The suit was A dismissed on 21-7-2000. A learned ADJ, Chakwal, dismissed the first appeal of the petitioners on 14-3-2001 confirming the findings on the said issues.
2. Learned counsel for the petitioners contends that evidence in the matter of talbs has not been properly read. As regards Zarar and Zaroorat he contends that the statement made by the deceased-plaintiff in the plaint and the notice of Talb-i-Ishhad to the effect that he will suffer the loss in case he does not get the land would be admissible under Article 46 of the Qanun-e- Shahadat Order, 1984, being a statement of a dead person having been made in the normal course of his business. Learned counsel for the respondent, on the other hand, supports the impugned judgment and decrees by contending that the matter of Zarar and Zaroorat was a part of substantive law till 31-12-1993 when the judgment of the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab, Lahore (PLD 1994 SC 1) took effect and there being no evidence on record of Zarar or Zaroorat, the learned Courts below have lawfully dismissed the suit. According to him, Talbs have not been proved.
3. I have examined copies of the record. Now I, find that in the plaint it was pleaded that the deceased-plaintiff came to know about the sale two days before the institution of the suit and made Talb-iMuwathibat in presence of witnesses and then tried to contact the respondent who was abroad. He then proceeded to the suit-land and made Talb-i-Ishhad and then issued a notice. Ghulam Mustafa P.W.1 and Suba Khan P.W.2 before whom, according to the contents of the plaint, Talb-i-Muwathibat was made, have appeared and deposed accordingly. They have further stated that the respondent was abroad and as sera the B petitioner went to the suit-land and made a Talb-i-Ishhad in their presence. I have examined the said statements and find that nothing derogatory turned out in the cross-examination. To my mind the Talb-iMuwathibat stood proved and so did the Talb-i-Ishhad. One of the recognized modes of making of Talb-i-Ishhad is that the same can be made in presence of witnesses at the property sought to be pre-empted and this has been proved to have been done. Reference be made to the case of Ghulam Jillani and 3 others v.
Ghulam Muhammad and 7 others (1991 SCM R 2001).
4. The said argument of Ch. Afrasiab Khan in the matter of Zarar and Zaroorat despite its ingenuity however fails to impress me. It will be seen that thc. Talbs as pleaded in the plaint, according to my own readingof the record have been proved by producing the witnesses who were named in the plaint. Now none of the said witnesses and the P.W.3, a son of the deceased-plaintiff, have stated a word about Zarar or Zaroorat. The said statement in the plaint or notice Exh.P.1, which, of course, never reached the respondent who admittedly was abroad would be of no avail to the petitioner for the simple reason that pleadings are not evidence. The primary purpose is to enable the parties to set down their respective pleas so as to further enable them to prove the same in the course of trial. Notwithstanding the fact that the original plaintiff died, the cause of action survived to his L.Rs who were brought on ~'record and, one of them even entered the witness-box. He opted to remain silent on the said issue.
5. Needless to state that Article 46 of the Qanune-e-Shahadat Order, 1984 makes the statement, inter alia, of a dead person admissible for the very limited purpose noted therein. Learned counsel sought to argue that the said plaint and notice would constitute a statement having been made in the normal course of business. I am afraid that filing of a suit for pre-emption and giving of a notice of Talb-i-Ishhad is not a business as envisaged by Article 46 of the Qanun-e-Shahadat Order, 1984 as would be apparent from a plain reading of the said provision of law. In the second no foundation stands laid in the pleadings or in the evidence to even consider as to whether Article 46 would apply or not. In somewhat similar circumstances a very significant plea of a subsequent vendee in terms of section 27(b) of the Specific Relief Act, 1877, was discarded as he had died before he could support the same in the witness-box in the case of Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25).
6. I, therefore, do confirm the findings of the learned Courts below on Issues No.3. The civil revision is accordingly dismissed without any orders as to costs.