' ZUBDA-TUL-HUSSAIN, J.---Respondents Nos. 2 to 4 Muhammad Bilal, Mst. Munahal and Mst.
Saboora (who were plaintiffs Nos.2, 3 and 4) in the suit for maintenance, which was filed before the learned Senior Civil Judge/Judge Family Court, Bahawalnagar, were granted decree for maintenance allowance against the writ petitioner Muhammad Akram i,e, their father at the rate of Rs,500 per month for each child through the judgment and decree dated 4-5-2006 passed by the learned Judge family Court, Bahawalnagar. This decree was not challenged by any of the parties in appeal and, therefore, for the time being it became final. The suit in which the said decree was granted had been filed by the said decree holders through their mother. Subsequently however, on 6-2-2007 another suit was filed on behalf of the said minor children seeking enhancement of the maintenance allowance on the ground that not only the cost of living had increased but due to the increasing day to day expenses, the requirements of the minors had also inflated.
2. This fresh suit was dismissed by the learned Judge Family Court, mainly for the reason that the financial resources of the writ petitioner were the same and had not undergone any change. On appeal this finding was reversed by the learned Additional District Judge who fixed the maintenance allowance at the rate of Rs,1,000 per month per child.
3. The validity and propriety of this judgment and decree of the learned Additional District Judge, who fixed the maintenance allowance at the rate of Rs,1,000 per month for each child has been questioned through the instant writ petition.
4. It has been argued by the learned counsel for the petitioner that the evidence which could be the sole basis for granting the maintenance allowance to the minor children was not properly attended to by the learned appellate court because it was admitted by the mother of the children in her statement before the learned trial court that the profession and source of income of the writ petitioner was the same as it was at the time of judgment and decree passed in the earlier suit. It was also argued that the previous judgment and decree having not been challenged by the decree holders, the finality thereof could not be reversed through a fresh suit and in the circumstances of the case fresh suit was not legally maintainable. The learned counsel has asserted that both the suits were tried between the same parties on the same cause of action by the court of competent jurisdiction and thus by virtue of section 17 of the Family Courts Act, 1964, the subsequent suit in which the impugned decree has been passed was barred under section 11 of the C.P.C.
5. It is of course true that the provisions of sections 10 and 11 of the C.P.C. Are applicable to the proceedings before any Family Court in respect of Part I of the Schedule, which includes the claim regarding maintenance allowance as well. Section 11 of the C.P.C. In relation to the cause of action of suit codifies the doctrine of res judicata which operates when there is a judgment between the same parties and it prevents a fresh suit between them regarding the same matter. As observed by an Hon'ble Bench of this court in the case of Mst. Azra Israr v. Inspector-General of Police Punjab and others PLD 2003 Lahore 1, essence of the principle of res-judicata contained in S.11, C.P.C. Is that a relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum. The principle, thus, saves the Court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action.
6. It is true that justice would require that every cause should be fairly tried and decided and at least in that respect after its decision the litigation should be concluded forever between the concerned parties. At the same time it can hardly be denied that the application of the principle inter se the earlier and fresh litigation cannot be applied indiscriminately without regard to the conditions precedent as laid down in section 11 of the C.P.C. A matter will not be hit by the principle of res-judicata only because of the similarity of the subject matter, commonality of the parties and determination of the dispute through a judgment and decree. One of the most important ingredients of res-judicata is the commonality of cause of action as well. If in a subsequent suit the plaintiffs have a fresh 'cause of action different or a cause different from the one tried earlier it will not be barred as res-judicata because of the judgment in an earlier suit on the same subject.
7. The above situation is aptly applicable to a cause for maintenance allowance of the minor children when such circumstances have occurred because of which the need or the quantum for maintenance has attained a different complexion. The growth of the children, the cost of living, any change in the status of the parties, change in the expenditures to be incurred on day to day needs of the children etc. Are the factors which either introduce a change of the cause of action or may make out even a fresh cause of action for the children to demand enhanced maintenance allowance. Thus the application of the rule of res judicata to the case of maintenance allowance has a peculiar complexion and by now it is will settled position of law that under the changed circumstances and the needs of the minor children fresh proceedings for maintenance allowance were maintainable before the Family Court having jurisdiction in the matter.
8. In the present case, me respondent-decree holders produced sufficient evidence on record to show that not only the cost of living had exorbitantly increased but the educational and the other expenses of the minors were also on the higher side. As already stated, the minors had earlier been granted maintenance allowance at the rate of Rs,500 per month each. This amount was not sufficient even to meet the bare minimum expenses of the minors as they were school going children and the average rate of fee per month was Rs,500 per child, which fact is evident from the certificate issued by the Principal of the school where the children are studying. Even otherwise it can hardly be denied that after the earlier judgment and decree the cost of living has substantially increased. The learned appellate court had taken into account all the relevant facts and thus the arguments of the learned counsel for the petitioners that the impugned judgment and decree suffers from misreading and non-reading of the evidence, is not justified.
9. The mere fact that the mother of the children admitted before the learned trial court that the petitioner was carrying on the same profession by which he was earning livelihood at the time of earlier suit cannot essentially mean that there has not been any change in his income as well. Even by carrying on the same occupation there occurs addition/increase in the income.
10. There is no doubt that quantum of maintenance should rationally correspond to the means of the father but at the same time it is the moral and legal obligation of the father to maintain his minor children and he is supposed to discharge this obligation regardless of his financial position.
The financial position of the father can be generally taken into consideration by the courts while granting the maintenance but simply on the excuse of limitation of the resources of the father, the children cannot be left to starvation and the father must try to exploit the necessary means and resources to maintain the relation of body and, soul of the minors. In the instant case the mother of the minors had specifically referred to the extra sources of income of the petitioner and it is regrettable that the learned trial court simply ignored the requirements of the children and one is constrained to feel that the findings of the learned trial Court freezing the maintenance allowance of Rs,500 per month per child were simply cruel.
11. It is thus obvious that the impugned judgment and decree dated 26-6-2008 passed by the learned Additional District Judge Bahawalnagar does not suffer from any illegality or material irregularity warranting interference in exercise of the writ jurisdiction of this court. The writ petition is therefore, dismissed in limine.