Ch. Ijaz Ahmed, J.-Petitioner seeks leave to appeal against the judgment dated 9-2-2009 passed by Lahore High Court, Lahore, wherein, Constitution Petition No, 1461/2009 filed by the petitioner against the judgment and decree of the District Judge, Gujrat, dated 1411-2008 and judgment and decree of the Judge, Family Court, dated 217-2008, was dismissed.
2. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petition arises are that petitioner and Respondent No, 5 solemnized marriage on 30-8-1995. Out of the wedlock Respondent Nos, 3, Amina Waqar and Respondent No, 4, Sara Waqar were borne which are presently residing with Respondent No,
5. The relationship between the petitioner and Respondent No, 5 became strained which ultimately ended in divorce.
Respondent No, 5 on her behalf and on behalf of Respondent Nos, 3 and 4 filed suit for recovery of maintenance allowance in the Court of Judge Family Court. The petitioner filed written statement controverting the allegations leveled in the plaint. Out of the pleadings of the parties the learned Judge, Family Court, framed the following issues:--
1. Whether the plaintiffs are entitled to recover maintenance allowance if so at what rate in which extent? OPP.
2. Whether plaintiffs have not come to the Court with clean hands? OPD.
3. Whether plaintiffs have no cause of action to file the suit? OPD.
4. Whether suit is not maintainable in its present form? OPD.
5. Relief.
3. Learned Judge Family Court after completing the legal formalities i.e, recording of the evidence of the parties, partly decreed the suit vide judgment and decree dated 21-7-2008 by observing that Respondents No, 3 & 4 (Plaintiffs No, 1 & 2) are entitled to recovery of monthly allowance at the rate of Rs, 5000/- each from the date of institution of the suit to till their entitlement while Respondent No, 5 (Plaintiff No, 3) is entitled to recover Rs, 5000/- per month from the date of institution of suit to till her Iddat period. The petitioner being aggrieved filed an appeal before the District Judge, Gujrat who partly accepted the appeal of the petitioner vide judgment and decree dated 1411-2008 wherein maintenance of Respondents No, 3 & 4 (Plaintiffs No, 1& 2) was reduced from Rs, 5000/- to Rs, 4000/- per month with an increase of 10 % percent per annum. Similarly, the maintenance of Respondent No, 5 was also reduced from Rs, 5000/- to Rs,4000/- per month. Petitioner being aggrieved filed Constitution Petition No, 1461/2009 in the Lahore High Court, Lahore, which was dismissed vide impugned judgment dated 9-2-2009, hence the present petition.
4. Learned counsel for the petitioner submits, that all the Courts below had decided the case against the petitioner by misreading and non reading of evidence on record. He further submits that petitioner is a poor person and is not in a position to pay the maintenance awarded by the Courts below to Respondents No, 3 to 5. The petitioner had taken a stand before the Judge Family Court while submitting written statement that he is residing in Qattar having monthly income of Rs, 16,000/- whereas the Courts below had erred in law to observe that petitioner's monthly income is of Rs, 60,000/-. He further urges that the provisions of the Qanoon-e-Shahadat Order are not applicable before the Family Court and this fact was not considered by all the Courts below in its true perspective.
5. We have given our anxious consideration to the contentions of the learned counsel for the petitioner and paused the record. It is an admitted fact that all the three Courts below after re- appraisal of the evidence had given findings of fact against the petitioner qua his earning amounting to Rs, 60,000/- Learned Judge, Family Court, after appraisal of the evidence on Issue No, 1 had given findings of fact against the petitioner to the following effect:-- "DW-2 categorically admitted that defendant is a person of means and his monthly income is Rs, 60,000/-. So he can pay easily Rs, 5000/- to each plaintiff. Facts admitted need not to be proved is a settled law ".
6. The said finding was again re-affirmed/upheld by the appellate Court in the following terms after re-appraisal of evidence on record:-- "In view of above state of Tacts, bald allegation at the instance of appellant highlighting his monthly resources to the tune of Rs, 16,000/- hardly can be believed, relied and acted upon and one cannot disputed that appellant is earning Rs, 50,000/- to Rs, 60,000/, "
7. It is settled principle of law that Constitutional Petition under Article' 199 of the Constitution in the Lahore High Court is not maintainable against the concurrent findings of the tribunals below as law laid down by this Court in Khuda Bakhsh v. Muhammad Sharif and another (SCM R 1974 SC 279) and Muhammad Sharif and another v. Muhammad Afzal Sohail etc, (PLD 1981 SC 246). Both the Courts below have given findings of fact against the petitioner, therefore, learned High Court was justified to dismiss the Constitution petition which is in accordance with the dictum laid down by this Court in Begum Wazir Ahmad Industrial Home's case (PLD 1976 SC 214). It is settled proposition of law that normally this Court does not mettle with the findings of fact reached by the primary Courts or a High Court when it is satisfied that the findings of the Courts below are reasonable and are not arrived at by disregarding of any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible.
8. It is also a settled principle of law that this Court would not normally go behind a concurrent finding of fact recorded. by the Courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and rule of the Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. In the interest of justice and fairplay we have re-examined the record and consequently we do not find any illegality committed by the Courts below while recording the finding against the petitioner with regard to the income of the petitioner. It is also settled principle of law that constitutional jurisdiction is always discretionary in character. He who seeks equity must come with clean hands. The petitioner has to pay maintenance allowance to his own .children and it is an admitted fact that he is residing in Qattar since 20 years. It is an admitted fact that maintenance as fixed by trial Court was modified by Appellate Court keeping in view financial position of the petitioner. Quantum of maintenance as fixed by appellate Court considering financial and other circumstances of the petitioner being fair, proper, just and reasonable and based on evidence on record which was upheld by the. High Court. The learned High Court had refused to interfere with the finding of fact recorded by Court of competent jurisdiction while exercising constitutional jurisdiction under Article 199 of the Constitution. See Tayyab Khan's case (2000 CLC 558). Therefore, we are not inclined to exercise our discretion in favour of the petitioner as law laid by this Court in Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 236). It is also settled law that grant of special leave to appeal from this Court cannot be claimed as of right because essentially it is matter of discretion. See Noora's case (PLD 1973 SC 469) and Fazal Din's case (1971 SCM R 186). In the case in hand, we have examined the evidence available on record with the assistance of the learned counsel for the petitioner. We do not find any infirmity or illegality or any mis-reading of evidence on record by the Courts below.
9. In view of what has been discussed above we do not find any merit in this petition which is dismissed. Leave refused.