' IJAZ-UL-AHSAN, J.---Through this order, I propose to decide W.P.No,4123-2009, W.P.No,6751-2009 W.P.No,4124-2009 as common questions of law and facts arise in all the three petitions. Moreover, all the three petitions arise out of the same judgment and decree.
2. Najaf Hussain, who is a minor, filed a suit through his real mother against the petitioner, who is his real father for recovery of maintenance. Nusrat Bibi, the real mother of the minor filed a different suit for her own maintenance and for recovery of medical expenses incurred on medical treatment of the minor.
' It is an admitted fact that the minor had a cardiac problem. It necessitated consultation with various specialists in various cities leading to open heart surgery from the Punjab Institute of Cardiology at Lahore.
3. The suits were contested. The learned trial Court consolidated the suits and framed consolidated issues. The parties were called upon to produce their evidence. Both sides produced documentary as well as oral evidence. On conclusion of trial, the learned trial Court decreed the suits filed by the petitioner to the extent of Rs,3,000 per month towards maintenance of the minor with 10% increase per annum, calculated from the date of filing of the suit till the minor attained the age of majority.
The claim for medical expenses in the sum of Rs,3,46,721 was allowed to the extent of Rs,1,50,000.
The judgment and decree of the learned trial court was assailed in appeal both sides through two different appeals. The learned first appellate court partly allowed the appeal of the respondents to the extent that the decree for medical expenses was reduced to a sum of Rs,1,00,000. However, the claim of the respondents for enhancement of maintenance allowance as well as medical expenses was dismissed.
4. The learned counsel for the petitioner submits that the learned first appellate court fixed the maintenance allowance at the rate of Rs,3,000 per month for the minor in addition to payment of Rs,1,00,000 towards medical expenses. He points out that the respondent concealed the fact that an earlier suit had been filed and decreed in her favour in which a sum of Rs,400 per month was awarded as maintenance vide judgment and decree dated 4-4-1996. He submits that a second suit on the same cause of action was barred. The learned counsel further points out that in the previous suit, the respondent had categorically admitted that a sum of Rs,400 per month, by way of maintenance, was regularly being paid by the petitioner. Argues that a fresh suit was not maintainable and at best enhancement could have been claimed, which was not done.
5. The learned counsel for the petitioner has drawn my attention to the judgment and decree of the learned appellate court in which it has been categorically stated that the respondent had only managed to produce receipts relating to medical expenses, which aggregated to a sum of Rs,36/37 thousand. In this view of the matter, there was no reason for the learned first appellate court to award Rs,1,00,000 for payment towards medical expenses. He further submits that the respondents did not produce any document to establish the source of income of the petitioner.
Notwithstanding lack of evidence regarding the source of income, the reasons given by the learned first appellate court for enhancement of the amount awarded by the learned subordinate court are not logical. Points out that the school fee for the minor is in the sum of Rs,150 per month and his other expenses which have been notice of do not justify award of maintenance in the sum of Rs,3,000 per month. The learned counsel finally argues that conduct of the petitioner has been above board and bona fide insofar as the minor admittedly has attained the age of 17/18 years and not once the petitioner has committed any default in the payment of Rs,400, which was awarded to him in the earlier judgment and decree. The petitioner has re-married and has a family consisting of children, who also need to be maintained and brought up. The enhancement granted by the learned first appellate court is beyond the financial means of the petitioner, who is admittedly owner of 10/12 acres of land in addition to two buffaloes. The quantum of the medical expense as well as the maintenance allowance allowed by the learned first appellate court is excessive and much beyond his means. The learned counsel relies on CLC 1994 1216 to submit that the liability to pay maintenance and quantum thereof is to be determined keeping in view the laws of the country and financial condition of the father and his other liabilities. The learned first appellate court has ignored the aforesaid criteria set by the honourable Superior Courts. Also relies on CLC 2002 1838 to the same effect.
6. The learned counsel for the respondent submits that there was no concealment of the previous suit. He has referred to Paragraph-3 of the plaint in which the fact that a suit was previously tiled and a decree was obtained, was clearly disclosed. He further submits that the minor is being educated at a prestigious school in Sargodha where he is living as a boarder. His school expenses come to Rs,3.000 per month, which have now increased to a sum of Rs,4,000 per month. The child was suffering from a major heart ailment which required constant medical treatment. In this regard, the respondent took the minor for consultation and medical treatment to various Doctors and hospitals in Punjab, which entailed considerable expenses in terms of medical treatment and medical fees. He further points out that the child underwent open heart surgery on which substantial sums of money were incurred. Points out that it is established from the record that the expenses for the aforesaid medical treatment were borne by the maternal grandfather who sold a piece of his land for the medical treatment and surgery of his grandson. The learned counsel adds that the learned trial Court after going through the record and documentary evidence produced by the respondent agreed that a sum of Rs,3,46,721 had been incurred on the medical treatment of the minor, however, for some strange reason, the learned court considered it appropriate to direct that half of the medical expenses must be borne by the mother and maternal relatives. The learned counsel argues that the learned appellate court overruled the said finding, however, reduced the amount of medical expenses from Rs,3,46,721 to Rs,1,00,000, The learned counsel finally submits that the petitioner had admitted in his cross- examination that he owned 10 to 12 acres of land. Points out that the said land fetches a sum of Rs,40/50 thousands per acre as lease money.
Consequently, the income of the petitioner comes to Rs,4/5 lac per annum. He, therefore, prays that the amount of maintenance of the child may be increased from Rs, 3,000/- to Rs,5,000/- in order to meet his living, educational and medical expenses.
7. Arguments heard. Record perused.
8. The record indicates that the mother of minor namely Nusrat Bibi appeared as P.W.1 and his maternal grandmother appeared as P.W.2. Both witnesses corroborated and supported the stance taken in the plaint. In addition, substantial documentary evidence in order to establish expenses incurred towards medical treatment and surgery of the minor was placed on record through Exh.P1 to Exh.P-32. The petitioner did not produce much by way of documentary evidence. However, he appeared as D.W.1.
9. From a perusal of the record and the evidence, it transpires that the petitioner owns 8/10 acres of land and has two buffaloes. His financial situation has been found by both the learned courts to be sound enough to be able to afford payment of a sum of Rs,3,000 per month to the respondent in order to meet the requirements of his day to day living. The petitioner did not produce any evidence to show that his financial resources were not enough to sustain payment of Rs,3,000 to his child. Even otherwise, the learned counsel appearing on behalf of the petitioner has not seriously contested payment of the aforesaid amount to the minor.
10. As far as the quantum of medical charges for treatment of the minor is concerned, much stress has been laid by the learned counsel for the petitioner on the point that the learned subordinate courts misread the evidence on record. He has pointed out that the amount incurred on the treatment of the minor did not exceed Rs,30 to 35 thousand and the amount awarded by the learned subordinate courts is excessive and not substantiated by the record.
11. I have gone through the evidence produced before the learned trial Court relating to the treatment and medical expenses for the minor. It is noticed that the minor had a cardiac problem and was taken to various specialists in Sargodha, Mandi Bahauddin, Armed Forces Institute of Cardiology at Rawalpindi and ultimately underwent cardiac surgery at the Punjab Institute of Cardiology at Lahore. The documents produced include receipts for purchase of medicines as well as other material ordered by the Punjab Institute of Cardiology for the purpose of the surgical procedure. The receipts produced duly support the judgment and decree of the learned first appellate court, which has arrived at the figure of Rs,1,00,000 after due application of mind, examination of the record and the documents produced by the parties.
12. As far as the earlier suit filed on behalf of the minor is concerned, it has been pointed out that the same had been decreed and a sum of Rs,400 was directed to be paid by way of maintenance to the minor. It has been argued that the said suit constituted a bar against filing of the subsequent suit. I am afraid; I do not agree with the argument raised by the learned counsel for the petitioner.
There is no bar in law against filing a subsequent suit for enhancement of the maintenance allowance in the wake of changed circumstances and additional needs of the minor, which a father is under a legal and moral obligation to provide.
13. This is a family suit, therefore, the provisions of Code of Civil Procedure are not applicable stricto senso. I, therefore, hold that the second suit was not barred. I have also heard the learned counsel for the respondents, who have filed separate petitions (being decided through this single order).
The learned counsel has argued that the suits of the respondents were liable to be decreed as prayed for.
14. The learned counsel for the parties have not been able to convince me that the learned subordinate courts have, in any manner, exceeded their jurisdiction, committed any illegality or material irregularity in arriving at their conclusions. Consequently, while upholding the judgment and decree of the learned first appellate court, these petitions are found to be without merit and are accordingly dismissed.