' AYESHA A. MALIK, J.--- This petition impugns the judgments and decrees dated 25-7-2011 and 19-1- 2012 passed by Judge Family Court and Additional District Judge, Mandi Baha-ud-Din respectively as there are concurrent findings against the Petitioner.
2. Brief facts of the case are that respondents Nos.1 to 4 filed a suit for recovery of maintenance allowance, which was decreed on 26-2-2008 providing maintenance at the rate of Rs,2000/- per month. Thereafter, they filed a suit for enhancement of maintenance allowance on 5-4-2010, which was decreed on 25-7-2011 providing for enhanced maintenance at the rate of Rs,4000/- per month with a 5% annual increase from date of institution till legal limitation of each. Hence this writ petition.
3. Learned counsel for the petitioner contends that the decree issued on 24-2-2008 has attained finality, hence the principle of `res judicata' applies. Further contends that in view of the said principle the respondent was not entitled to seek enhancement of maintenance allowance, that too within a period of two years. He relied upon section 17 of the Family Court Act, 1964 which he states provides for the principle of res judicata and upon the Schedule which does not provide for a suit for enhancement of maintenance.
4. Heard the learned counsel for the petitioner and reviewed the record available on the file.
5. The contention of the learned counsel for the petitioner that the principle of res judicata will apply to order dated 26-2-2008, is legally flawed as the principle of res judicata will not apply to suit for enhancement of maintenance since the issues pertaining to the enhanced maintenance were not in issue between the parties in the previous suit. There is no bar in law against filing a fresh suit for enhancement of the maintenance allowance due to change in circumstances, change in cost of living and additional needs of the minor, which a father is under legal obligation to provide. Reliance is placed on Muhammad Ashraf v. Mst. Nusrat Bibi and 3 others (2010 CLC 1411).
In the case of Muhammad Akrafn v. Additional District Judge and others (PLD 2008 Lahore 560), this court has held that section 11 of the C.P.C. In relation to the cause of action of suit codifies the doctrine of res judicata which operates when there is a judgment between the same parties and it prevents a fresh suit between them regarding the same matter. In a suit for enhanced maintenance, the growth of the children, the cost of living, change in the status of the parties, change in the expenditures incurred based on the needs of the children are some of the factors which either bring about a change of the cause of action or may make 'out even a fresh cause of action for the children to demand enhanced maintenance allowance. Thus fresh proceedings for maintenance allowance are maintainable before the Family Court. Since enhanced maintenance was not a matter in issue between the parties, hence, the principle of res judicata will not apply.
6. On the issue whether a suit for enhancement of maintenance is maintainable under the Schedule, the answer is that the same is maintainable. The Schedule provides for the matter over which the Family Court should have jurisdiction. Maintenance is provided at Serial No.3. As such there is no bar on filing a suit for enhancement of maintenance. There are bound to be changes in the circumstances and changes in the requirements of the children. Naturally, as the children will grow their needs will also grow. Reliance is placed on a case titled Arab Mir Muhammad v.. Mst.
Iram Iltimas and 4 others (1999 CLC 1668). It is noted that this is an unrealistic approach that the maintenance allowance should remain fixed throughout the growing period of the minor or that the 5% increase should be considered sufficient. A father is legally bound to maintain the minor in terms of the requirement of the minor and the cost of living.
7. For the forgoing reasont, the learned court has exercised the powers in accordance with law.
There is no illegality in the impugned orders, which merit interference by this court in the exercise of its constitutional jurisdiction. The writ petition being without substance is hereby dismissed.