' MUHAMMAD TASNIM, J.---This revision application is directed against the judgment and decree, dated 1-2-2010 and 10-2-2010 passed in Family Appeal No,68 of 2009 by Ist Additional District Judge, Karachi-Central, questioning the order, dated 8-9-2009 passed in Suit No,825 of 2005 by III- Civil/Family Judge, Karachi-Central, dismissing the application under section 12(2), C.P.C.
2. Brief facts leading to this revision application are summarized as under.
3. Respondent No,1, Mst. Shahnaz Zubair, along with her three minor children, namely, Baby Arba Zubair, Baby Lyba Zubair and Master Muhammad Radeem Shah filed a suit for maintenance against the present applicant, namely, Syed Zubair Shah, in the Court of IIICivil/Family Judge, Karachi-Central, with the following prayer:--
(A) Past maintenance to the Plaintiff No,1/2000 to August, 2005 (67 Months) @ Rs,8000 per month for plaintiff No,1. Total Rs,536000.
(B) Past maintenance to the plaintiff No,2 w.e.f, January, 2000 to September, 2001 (20 months) and also May, 2002 to August, 2005 (40 months) Rupees 8000 per month. Total amount Rs,48000.
(C) Past maintenance to the plaintiff No, 3 w.e.f, January, 2001 to August, 2005 at Rs,8000 per month (67 months). Total amount of Rs,536000.
(D) Past maintenance to the plaintiff No,4 w.e.f, August, 2001 to August, 2005 (48 months) Rupees 8000 per month, total 384000
(E) Future maintenance to the above plaintiffs as mentioned above and increase 20% per year.
(F) Any other relief or reliefs as may be deemed fit and proper under these circumstances of this case.
(G) Cost of the suit.
4. Along with the above suit an application under section 17A of West Pakistan Family Courts Act, 1964 (hereinafter referred as the Act), was also filed for interim maintenance to the aforesaid plaintiffs. Such application was contested by the present applicant by filing objections. The learned Family Judge heard the parties and passed order relating to interim maintenance on the application under section 17A of the Act vide his order, dated 26-11-2005 directing the present applicant to pay maintenance at the rate of Rs,4,000 per month per child and at the rate of Rs,4,000 to respondent No, 1 . The Family Judge also ordered for payment of past maintenance for three years, The present applicant did not question the aforesaid order before any competent forum but had chosen not to comply with the aforesaid direction of the learned Family Court. In the circumstances an application was made for striking off defence of the applicant and prayed for decree. The learned Court heard the parties and vide order, dated 26-3-2006 struck of the defence off the applicant and suit was decreed. Again no appeal was filed against the aforesaid order, dated 26-3-2006.
5. That instead of filing appeal the present applicant filed an application under section 12(2), C.P.C.
Before the learned trial Court. Such application was heard and dismissed, vide order, dated 8-9- 2009.
6. Feeling aggrieved against the aforesaid order, dated 8-9-2009 passed by the learned trial Court on the application under section 12(2), C.P.C. Preferred an appeal being Appeal No, 68 of 2009 before 1st Additional District Judge, Karachi-Central. Such appeal was heard and the learned appellate Court vide judgment and decree, dated 1-2-2010 and 10-2-2010 has dismissed the aforesaid appeal and against the aforesaid appellate order the present revision application has been filed.
7. It may also be stated that from the record it appears that present applicant was in habit of making frivolous applications before the trial Court so also the Executing Court after passing of the decree but all such applications were dismissed by the learned trial Court.
8. I have heard the learned counsel for the applicant and gone through the record minutely with the assistance of learned counsel for the applicant.
9. The learned counsel for the applicant has attempted to argue that after passing of order, dated 26-11-2005 on application under section 17A of the Act no appeal was filed because such order was illegal hence he did not challenge the same. He further submitted that instead of challenging such order he questioned the subsequent order passed by the learned Family Judge on 26th March, 2006 through an application under section 12(2), C.P.C. Which was wrongly dismissed by the learned trial Judge. Learned counsel further submitted that the learned appellate Court as well did not advert to the record available before it and has passed the impugned order oppose to material before the Court. Learned counsel for applicant prayed that judgment and decree passed by the appellate Court be set aside.
10. The submissions of learned counsel for the applicant are not founded on the record and are not in consonance with the provisions of law. Section 17A of the Act is quoted hereunder:-- "17A. Interim order for maintenance.---At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, where under the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit."
11. From the perusal of above quoted section it appears that aforesaid section empowers the Family Court to pass interim order for maintenance during the pendency of a suit. It further empowers the Court to order for maintenance and in case of default by the defendant Court can strike off the defence of the defendant and can also decree the suit. From the perusal of the order, dated 26-11-2005 it appears that A order passed by the learned Family Judge on the application under section 17A of the Act is strictly in accordance with law and did not call for interference by any Court. Additionally no appeal was filed hence the order, dated 26-11-2005 had attained finality.
Once the order passed by the learned Family Judge was not complied with the defence of the present applicant was rightly struck off and suit of respondent No,1 was rightly decreed vide order, dated 26th March, 2006.
12. From the perusal of record it further appears that after lapse of about three years the application under section 12(2), C.P.C. Was made while execution proceedings were pending. Such application was rightly rejected by the learned trial Court for the following reasons:--
13. Firstly, no application lies under section 12(2), C.P.C. In the present case as the applicant has contested the same by submitting to the jurisdiction of the Family Court. Once he had submitted to the jurisdiction of the Court and did not raise any objection whatsoever about the competence of the Court he cannot raise such objection subsequently. Even otherwise, the decree was not challenged through appeal in time hence such order had attained finality. Even otherwise, the scope of section 12(2), C.P.C. Is limited to the extent that any person can challenge the validity of a judgment and decree or order on the plea of fraud, misrepresentation or want of jurisdiction but in the present case no such point was raised. Hence, the order passed by learned trial Court on the application under section 12(2), C.P.C. Was legal and did not call for any interference. Similarly, the order passed by the learned appellate Court has been perused by me it is in accordance with the provisions of law applicable in the case. The appellate Court has considered the law and the material placed before it. The judgment has, been passed on sound principles, hence does not call for any interference by this Court in its revisional jurisdiction.
14. In the end I may also record that the present revision does not lie under section 115, C.P.C. As the matter pertains to family dispute for which special enactments have been enacted and such enactments provide for resolution of family dispute before the for a indicated in such enactments.
15. For the foregoing reasons I do not find any reason to interfere with the findings recorded by the learned appellate Court and dismiss the same in limine, upholding the judgment and decree, dated 1-2-2010 and 10-2-2010 passed by the learned appellate Court in Family Appeal No,68 of 2009.
16. These are the reasons of short order passed on 5-3-2010.