' MIAN HAMID FAROOQ, J.---Respondents, through her mother, on 21-5-2002, filed the suit for maintenance allowance at the rate of Rs,1,000 per month, which was resisted by the petitioner. The learned Judge Family Court framed issues, recorded evidence of the parties and ultimately granted maintenance allowance at the rate of Rs,600 per month with prospective increase of 20% every year, vide judgment and decree, dated 17-3-2003. The petitioner filed the appeal against the said decision, but it was dismissed by the learned Additional District Judge, on the ground that the appeal was not competent under section 14(2)(c) of Family Courts Act, 1964, vide impugned judgment and decree, dated 7-5-2004, hence the present constitutional petition.
2. Learned counsel for the petitioner states that if the learned Additional District Judge lacked jurisdiction, then he instead of dismissing the appeal should have returned the memorandum of appeal to be filed before the appropriate forum. He adds that at the time of filing the suit, right of first appeal was available to the petitioner, therefore, it could not have been denied to him despite subsequent bar of filing appeal. He has relied upon Mst. Ghulam Fatima v. Fazal and others (1986 CLC 2057), Khawaj Muhammad v. District Judge, Mansehra and others (1999 M LD 2723) and Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another (2004 M LD 306). Conversely, learned counsel for the respondents, while referring to section 14(2)(c) of the Family Courts Act, submits that as the maintenance allowance was granted at the rate of Rs,600 per month, therefore, the appeal was not competent before the learned District Judge.
3. I have heard the learned counsel and examined the available record. The respondents filed the suit on 21-5-2002, it was decreed on 17-3-2003, the petitioner filed the appeal before the District Judge on 22-11-2003 and the same was dismissed on 7-5-2004. Initially, when the Family Courts Act, 1964 was introduced no appeal could be filed against the decree, passed by the learned Judge Family Court for maintenance allowance of Rs,500 or less per month in view of section 14(2)
(c), ibid. A The said provision of law was amended by virtue of amending Ordinance LV of 2002, which came into force on 1-10-2002, and the words "one thousand" were substituted in place for the words "five hundred". It may be noted that when the respondents filed he suit on 21-5-2002, the right of appeal was available to the parties, under the un-amended law, as the amending Ordinance was introduced on 1-10-2001 It has been held in the case of Ghulam Fatima (supra) that institution of the suit carries an application that all rights of appeal then in force are available to the litigants till the end. It appears appropriate to reproduce a portion of the said judgment, which reads as follows:- "It is an accepted principle of law that a first appeal or a secondappeal is not merely a matter of procedure but a substantive vested right. An appeal is a continuation of a suit. The institution of a suit carries an implication that all rights of appeal then in force are available to the litigants till the end. If any authority is required for this review Mst. Sardar Begum v. Muhammad Ilyas (1983 CLC 1570) may be referred."
4. As noted above, the suit was instituted on 21-5-2002, on which date right of appeal was available to the parties from a decree passed by the Family Courts for maintenance allowance for more than Rs, 500. Although the decree for maintenance @ 600 was passed on 17-9-2003, when the amending Ordinance was already in field, yet in the circumstances of the case, right of appeal was available to the petitioner against the decree passed by the Family Courts for maintenance of Rs,600 in view of law laid down in the case of Ghulam Fatima (supra). The learned appellate Court has erred in law in rejecting appellant's appeal on the ground of incompetency and has ignored the law on the subject.
5. In the above perspective, I am of the view that in this case, appeal before the learned Additional District Judge was competent and it was erroneously dismissed on the ground of lack of jurisdiction.
6. For the foregoing reasons, the present petition is allowed and the impugned judgment and decree, dated 7-5-2004 is set aside with no order as to costs. Resultantly, petitioner's appeal shall be deemed to be pending before the learned District Judge, Khanewal, who shall, himself, decide the appeal after hearing the parties and of course in accordance with law within a period of two months from today.