' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks that the judgment and decree dated 15-2-2001 passed by respondent No,2 and the judgment and decree dated 3-11-2003 passed by respondent No,1 may be set aside to the extent of past maintenance of respondent No,3 and her suit may also be dismissed to the said extent as decided by the learned District Judge, Sahiwal in his order dated 29-1-2002.
2. The brief facts of the case are that the respondent No,2 along with her minor son Noman filed a suit for maintenance on 17-10-1997 before the learned Senior Civil Judge/Judge Family Court. In the plaint it was claimed that respondent No,3 had failed to maintain them since 3-3-1993 and he also had not paid any maintenance to Noman who is the only son out of the wedlock. It was mentioned that the petitioner and respondent No,3 were married with each other through Shari Nikah and a child was born on 28-12-1992. This Nikah was registered on 12-4-1992. There was criminal litigation between the parties and Writ Petition No,2871 of 1992 was filed by respondent No,3 and a compromise was arrived at between the parties through compromise deed dated 3-3-1997 according to which the dower amount was fixed at Rs,500 and thereafter according to nikahnama the same was enhanced to Rs,1,00,000 and the petitioner also promised that he would pay Rs,3,000 per month to respondent No,3 as maintenance allowance. In the plaint it was claimed that the petitioner was drawing salary of Rs,11,000 per month in addition to bonus and over time and respondent No,3 was entitled to an amount of Rs,1,74,000 as previous maintenance and their son Noman was also entitled to previous maintenance amounting to Rs,2,75,000. It was also claimed in the plaint that the son was entitled to receive Rs,4,000 per month with addition of 20% per year as well. The suit was contested by the petitioner through written statement filed by him and he also denied the compromise arrived at between the parties. On the pleadings of the parties the learned Judge Family Court framed the following issues:--
(1) Whether the agreement dated 3-3-1993 is a result of undue influence and has no legal value in the eye of law? OPD
(2) Whether plaintiffs are entitled to a decree for recovery of maintenance allowance, if so, to what extent and for what period? OPP
(3) Whether plaintiff have no cause of action? OPD
(4) Whether suit is time-barred? OPD
(5) Whether this Court lacks jurisdiction to adjudicate upon this matter? OPD
(6) Relief.
' Both the parties produced their evidence. Respondent No,3 appeared as P.W.1, and also produced Muhammad Islam as P.W.2, while the petitioner appeared as D.W.1 and also produced Qasim Irshad as D.W.2. After the close of the evidence of both the parties the learned Judge Family Court vide his judgment dated 15-2-2001 held that respondent No,3 was entitled to Rs,3,000 per month from 1-4-1993 to 16-10-1997 as maintenance allowance plus Rs,3,000 per month during Iddat period of three months. The son Noman was also held entitled to recover Rs,2,000 per month from the date of filing of suit and in future Rs,2,100 per month with an enhancement at the rate of 6% per annum. Both the parties filed appeals against the said judgment which were disposed of by the learned Additional District Judge vide judgment dated 29-1-2002 with the amendment in the judgment of the learned Senior Civil Judge that respondent No,3 and Noman were not entitled to any past maintenance; respondent No,3 was held entitled to recover Rs,5,000 per month for Iddat period. The judgment of the learned Senior Civil Judge was, however, upheld to the extent of entitlement of maintenance of Noman to recover Rs,2,000 per month from the date of institution of the suit i.e, 16-10-1997 till 15-2-2001 when decree was passed and onwards Rs,2,100 per month with annual increase of 6%. He further held entitled Noman to recover the amount equivalent to monthly maintenance every year for the expenditure to be incurred for purchase of books for the new academic year in addition to his monthly maintenance allowance.
3. The petitioner filed Writ Petition No,2708 of 2002 before this Court challenging the above said judgment and decree which was dismissed on 16-4-2003. Respondent No,3 also challenged judgment and decree dated 29-1-2002 passed by the learned Additional District Judge, before this Court by filing Writ Petition No,6585 of 2002, which was accepted vide judgment dated 22-4-2003 and judgment dated 29-1-2002 to the extent of disallowing maintenance from 1-4-1993 to 16-10- 1997 to respondent No,3 was set aside and the case was remitted to the learned Additional District Judge to decide this issue afresh by considering the evidence on the record within three months.
The learned Additional District Judge Sahiwal now through impugned judgment and decree dated 3-11-2003 has dismissed the appeal filed by the petitioner and maintained the judgment and decree of the learned trial Court. Hence this writ petition.
4. Learned counsel for the petitioner contends that the petitioner is unable to pay the amount as he is earning about six thousand rupees per month. It is further contended that during the period respondent No,3 remained with the petitioner as his wife he had been paying the expenses and she was not entitled to the amount of Rs,3,000 per month as past maintenance. It is further contended that past maintenance cannot be granted for more than three years hence the judgment and decree is liable to be set aside. It is also contended that respondent No,3 has failed to produce the evidence that the amount was not paid to her and the onus to prove Issue No,2 was upon her which she could not discharge.
5. On the other hand learned counsel for respondent No,3 opposes this petition on the ground that a compromise (Annex. '0') was arrived at in the earlier Writ Petition No,2871 of 1992 between the parties and the petitioner had .Agreed to pay the amount of Rs,3,000 per month as maintenance to respondent No, 3 from 1-4-1993 to 16-10-1997, hence respondent No,3 is entitled to recover the said amount as past maintenance.
6. I have heard the learned counsel for the parties and also perused the record. The petitioner at the time of disposal of Writ Petition No,2871 of 1992 arrived at a compromise with respondent No,3 and compromise-deed dated 3-3-1993 (Annex `0') copy appended with this petition was signed by both the parties, on the basis of which the writ petition was disposed of. According to the agreement the dower amount which was fixed at Rs,500 at the time of nikah with respondent No,3 according to the nikahnama was enhanced to Rs,1,00,000 and the petitioner also agreed to pay Rs,3,000 per month to respondent No,3 as maintenance allowance. The petitioner while appearing as R.W.1 has not categorically stated that he had paid the said amount. However, during cross- examination he failed to disclose that how much amount was paid and what was mode of payment to respondent No,3 after arriving at compromise between the parties. The onus to prove that amount after the settlement between the parties was paid shifted towards the petitioner as he had given an undertaking in the earlier writ petition about payment of Rs,3,000 per month to respondent No,3. He has failed to discharge the onus that he made the payment of Rs,3,000 per month to respondent No,3. On the other hand respondent No,3 while appearing as P.W.1 clearly stated that nothing was paid by the petitioner and she has sufficiently succeeded in proving that the said amount was not paid. However, it is not disputed that the said amount was payable by the petitioner at the rate of Rs,3,000 per month to respondent No,3 as per agreement dated 3-3-1993.
When the petitioner failed to comply with the undertaking given by him he is responsible for the payment of the same. The argument of the learned counsel for the petitioner that past maintenance cannot be allowed to respondent No,3 for more than three years is also repelled as agreement was signed by the petitioner and he himself stated that the said amount was payable by him to respondent No,3 as monthly maintenance allowance hence the A writ petition was disposed of. Instead of making payment of the said amount he had disputed the agreement arrived at between him and respondent No,3 at the time of disposal of the writ petition but both the Courts below have given concurrent finding that the agreement was arrived at between the parties voluntarily, hence the petitioner is bound to make the payment of past maintenance as he failed to show that he had paid the said amount. Since as per agreement the petitioner was bound to make payment of Rs,3,000 per month as maintenance to respondent No, 3 from 1-4-1993, hence it cannot be claimed that past maintenance beyond three years could not be awarded. I do not find any illegality in the impugned order and the judgments passed by both the Courts below which are based on the evidence. The learned counsel has failed to point out any misreading or non-reading of evidence on the part of the Courts below. It is settled law that writ petition cannot be heard as an appeal from a subordinate Court nor can embark upon re-appraisal of evidence. It has only to see jurisdictional defect or violation of law or statute settled by superior Courts in passing of impugned orders. Reliance is placed on Abdur Rehman Bajwa v. Sultan PLD 1981 SC 522 and Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246.
7. For the foregoing reasons, I do not find any merit in this writ petition which is dismissed. At this stage the learned counsel for the petitioner has requested for payment of past maintenance to respondent No,3 in installments. With the consent of respondent No,3 in the presence of her learned counsel and as agreed by learned counsel for the petitioner on instructions, it is directed that petitioner will deposit Rs,50,000 in the learned trial Court within fifteen days as first instalment and thereafter Rs,8,000 per month till 10th of every month will be deposited towards maintenance of respondent No,3 till the same is realized in full. Respondent No,3 will be entitled to refund the same after deposit of each instalment. The maintenance allowance already being paid to Noman, son of the parties will separately continue.