IQBAL HAMEED-UR-REHMAN, J.---Through the instant writ petition the petitioner has assailed the order dated 8-3-2010 whereby the learned Family Court, Lahore has struck off the defence of the petitioner on account of his failure to pay the interim maintenance to respondents Nos.2 and 3 despite repeated opportunities being afforded to him while applying the provisions of section 17-A of the Family Courts Act, 1964 had fixed the maintenance allowance of respondents Nos.2 and 3 @ Rs,3000 each per month from the date of institution of the suit till the puberty of respondent No,3 and till the marriage of respondent No,2 with 10% increase per annum. It is stated that against the order dated 8-3-2010 the petitioner filed an appeal before the learned Addl. District Judge, Lahore who vide its order dated 20-7-2010 dismissed the appeal holding the order dated 8-3-2010 is an interim order against which no appeal or revision lies. Hence, the instant writ petition
2. It is contended by learned counsel for the petitioner that the learned Judge Family Court, Lahore through an interim order could not fixed the maintenance of the minors/plaintiffs Nos.2 and 3 while applying the provisions of section 17-A of the Family Courts Act, 1964 rather he should have passed final judgment and decree in this regard which has not been done in the instant case as such, illegality has been committed by the learned trial court as is apparent from the order sheet that instead of decreeing the case the learned trial court had fixed the same for documentary evidence of the plaintiffs and this has been confirmed by the learned appellate court when the appeal of the petitioner had been dismissed on account of the order dated 8-3-2010 being an interim order against which no appeal lies, as such the same needs to be rectified by this Court through this writ petition. It is further contended that while applying the provisions of section 17-A of the Act ibid the court could not have granted the maintenance allowance retrospectively from the date of institution of the suit rather the same was to be allowed from the date of passing the impugned order, as has been held in Zafar Hussain v. Bequm Farzana Nazli and others (PLD 2004 Lahore 349).
3. On the other hand this petition has been vehemently contested by the learned counsel for the respondents asserting that the petitioner has been given ample opportunities to pay the interim maintenance before passing of the impugned order but in spite of the same, the petitioner failed to make any payment to his 9 years old daughter who studies in Class 3 and his mentally retarded son aged about 4 years and two other minor children whom respondent No,1 is rearing without a penny being given by the petitioner. In fact the respondent No,1 has sacrificed her life for the upbringing of the children and has not remarried whereas the petitioner has contracted second marriage without taking into consideration the welfare of his minor children.
4. It is further submitted that in fact the impugned order dated 8-3-2010 is a final judgment to the extent of respondents Nos.2 and 3 and subsequently the decree sheet has also been prepared in this regard, as such the learned appellate court has misconstrued that the impugned order is an interim order. Therefore, the contention of learned counsel for the petitioner could not sustain.
Moreover, it is further contended that the impugned order is a final judgment with regard to maintenance to respondents Nos.2 and 3. The case had been adjourned only for the documentary evidence of the plaintiff No,1 with regard to the other claims of the plaintiff No,1 in the suit. So far as the case of respondents Nos.2 and 3 are considered, no evidence had been ordered to be produced. At the most the case be remanded to the learned appellate court to decide the appeal of the petitioner on merits.
5. Arguments of both the learned counsel for the parties heard, material made available on the file perused.
6. From the perusal of the impugned order dated 8-3-2010 it is quite apparent that it is a final judgment with regard to the grant of maintenance to respondents Nos.2 and 3. The view of the learned appellate court that it is an interim order, is misconstrued, therefore, this writ petition is accepted and the impugned order dated 20-7-2010 passed by learned appellate court in the appeal of the petitioner is set aside. The case is remanded to the learned appellate court with the direction for decide the appeal of the petitioner on merits. The parties are directed to appear before the learned appellate court on 20-12-2010. This writ petition stands disposed of accordingly.