'HAFIZ ABDUL REHMAN ANSARI, J.---Through this writ petition petitioner Muhammad Zahid Khan seeks setting aside of the judgments and decrees, dated 14-11-2008 and 10-2-2009 respectively passed by the learned Judge, Family Court, Jampur, and the learned Additional District Judge, Rajanpur Camp at Jampur. Through the former judgment and decree the learned trial Court decreed the suit of respondent Mst. Shamim Mai etc., at the rate of Rs,1,000 per head as maintenance w.e.f, July, 2008 till their entitlement including the delivery charges of the plaintiff No,1 Mst. Shamim Mai for the birth of minor respondent No,6 Ali Hamza. Suit of the petitioner for restitution of conjugal rights were also decreed subject to the payment of maintenance allowance and delivery expenses of plaintiff No,l. Through the latter judgment and decree the judgment and decree of the trial Court to the extent of maintenance was maintained and delivery charges of Rs,10,000 awarded by the trial Court were reduced to Rs,2,000.
2. Briefs facts of the case are that marriage of the petitioner was solemnized with respondent No,3 Mst. Shamim Mai on 7-9-2003; they lived happily and performed matrimonial obligations; out of the wedlock three sons, respondents Nos.4 to 6, namely, Zain Usama and Ali Hamza, were born who are presently residing with their ' mother, respondent No,3. Thereafter respondent No,3 allegedly left the house of her husband, the petitioner, of her own.
3. Respondent No,3 filed a suit for maintenance for herself and for her three minor sons at the rate of Rs,2,000 per month for each. She also claimed past maintenance of Rs,44,000 and Rs,10,000 as delivery expenses for the birth of her son Ali Hamza, respondent No,6, who was born in the house of her parents. The petitioner contested the suit by filing written statement and controverted the averments of the plaint and also took three preliminary objections, (i) that petitioner loved Mst.
Shamim Mai, his, wife and was ready to rehabilitate her on reasonable condition, (ii) that parents of Shamim Mai were greedy and had taken Rs,70,000 from the petitioner on different dates but did not pay despite repeated demands, and (iii) that about two months before filling of the suit father of Shamim Mai had demanded Rs,10,000 from the petitioner which he did not pay and on that account the plaintiff/respondent No,3 left the house of the petitioner in his absence and also took with her ornaments and cash of Rs,25,000 so the suit was not maintainable. The petitioner also filed a suit for restitution of conjugal rights against Mst. Shamim Mai in the Family Court, Jampur. Both the suits were consolidated.
4. Evidence of the parties was recorded. Plaintiff/respondent No,3 appeared as P.W.1 in support of her claim and petitioner Muhammad Zahid Khan appeared as D. W.1 to controvert the claim of the respondent-plaintiff
5. The learned Judge, Family Court vide judgment and decree dated 14-11-2008 decreed the suit of respondent for C maintenance at the rate of Rs,1,000 per head per month w.e.f, July 2008 till their entitlement including delivery expenses of plaintiff No,l. The suit of the petitioner for restitution of conjugal rights was also decreed subject to payment of maintenance allowance and delivery expenses of plaintiff No,1. The appeal filed by the petitioner-defendant against the judgment and decree of the trial Court was disposed of with reduction of the amount of delivery charges c of Rs,10,000 to Rs,2,000. Learned lower appellate Court, however, determined the value of the suit for the purposes of court-fee as Rs,34,000 but court-fee of only Rs,15 was affixed on the memo of appeal, so the learned counsel for the petitioner was directed to make up the deficiency of the court-fee within two weeks, failing which the appeal was deemed to have been dismissed.
6. The learned counsel for the petitioner contends that the maintenance allowance fixed by both the Courts below is harsh, excessive and exorbitant. Both the Courts below ignored the monthly income of the petitioner and the imposition of condition for the decree of the conjugal rights subject to payment of maintenance is not valid. He contended that she left the house of the petitioner of her own and went to her parents house. The petitioner did not expel her from the house. He still loves her and wants to rehabilitate her with him. Further submits that the respondent-plaintiff lady did not produce any material evidence with regard to the financial position and income of the petitioner. The petitioner in his statement as D. W.1 has categorically stated that he has a grocery shop in the Mohallah and his daily earning is Rs,100/150 so it is not possible for the petitioner to pay Rs,2,000 to respondents Nos. 4 to 6 per head per month.
7. On the other hand, learned counsel for the respondent-plaintiff contended that the plaintiff in her statement stated that the petitioner-defendant owns to grocery shops and not one. The Judge, Family Court considered the statements of the plaintiff and of the defendant regarding income of the petitioner and passed the decree, which was upheld by the learned Additional District Judge on the quantum of maintenance allowance at the rate of Rs,1,000 per month per head. The delivery expenses of Rs,10,000 awarded by the trial Court were reduced to Rs,2,000.
8. I have heard the learned counsel for the parties and perused the record before me. I would not like to interfere or disturb the concurrent findings with regard to the maintenance allowance fixed by the Judge, Family Court and upheld by the learned lower appellate Court at the rate of Rs,1,000 per month for each of the plaintiffs. In these days of dearness where prices of each and every article of daily use has gone up, the said rate of maintenance cannot be said harsh and exorbitant.
Father of the children is bound to maintain them.
9. As far as the finding of the learned Judge for awarding delivery expenses for the birth of respondent All Hama is concerned, the finding of the lower appellate Court are upheld.
10. As far as the question of affixation of the court-fee on the appeal is concerned, the learned first appellate Court wrongly ordered the petitioner to affix the court-fee on the valuation of the suit as Rs,34,000. Court fee on the appeal was affixed of Rs,15 which is in accordance with section 19 of the West Pakistan Family Courts Act, 1964 as amended. Section 19 of the West Pakistan Family Courts Act, 1964 was amended through Family Court Amendment Ordinance No, LV of 2002 Present amended section 19 is reproduced as under.-- "19. Court-fees. Notwithstanding anything contained in the Court Fees Act, 1870 (VII of 1870), the court-fees to be paid on any plaint or memorandum of appeal shall be rupees fifteen for any kind of suit or appeal under this Act.
"Therefore, to this extent the finding of the learned lower appellate Court for affixation of court-fee according to suit valuation of Rs,34,000 is not correct. The same is set aside.
11. I would not interfere in the concurrent finding with regard to the maintenance as there is no jurisdictional error in the judgments and decrees with the regard to the maintenance and both the Courts below rightly fixed the maintenance allowance for the wife of the petitioner, namely, Mst.
Shamim Mai, who is respondent No,3 herein, and for the children.
12. With the above modification in the findings of the learned first appellate Court, this writ petition is disposed of with no order as to costs.