' CH. MUHAMMAD IBRAHIM ZIA, J. --- The above titled appeal by leave of the Court has been directed against the judgment of the Shariat Court dated 20.10.2012.
2. Brief facts of the case are that the plaintiff-respondents, herein, filed a suit for grant of maintenance charges before the Judge Family Court, Mirpur. After necessary proceedings, the Judge Family Court, Mirpur issued an ex parte decree against the defendant-appellant, herein on 12.10.2004. An application for execution of the said decree was filed, however, later on the application for execution of decree was withdrawn. The respondents herein again filed a suit for recovery of maintenance charges on 17.9.2010 before the Judge Family Court, Mirpur. The Judge Family Court, Mirpur after completion of necessary .Proceedings vide judgment dated 31.3.2011 passed an ex parte decree in favour of respondents herein. The defendant-appellant, herein on 20.4.2011 filed an application for cancellation of ex parte decree passed on 31.3.2011 before the Judge Family Court, Mirpur. The respondents, herein contested the application on the ground that the appellant herein failed to furnish any reasonable ground for setting aside the decree, consequently, vide order dated 29.6.2012, the application was dismissed. Against the order of the Judge Family Court, the appellant filed an appeal before the Shariat Court of Azad Jammu & Kashmir which met the same fate through the impugned judgment, hence the instant appeal by leave of the Court has arisen.
3. Sh. Masood lqbal, Advocate, the learned counsel for the appellant, argued that the judgments of both the Courts below are against law. He submitted that the application for setting aside the ex parte decree passed by the Family Court on 31.3.2011 was filed on 20.4.2011 well within time but the Family Court without adhering to law, dismissed the application filed by the appellant. He further submitted that the plaintiff-respondents, herein, in both the suits, filed before the Judge Family Court, Mirpur have entered wrong address of the defendant-appellant due to which service could not be affected upon him properly and the ex parte decrees have been passed. It is contended by the learned counsel for the appellant that both the Courts below without applying their judicial mind, have recorded the impugned judgments against the norms of law and justice. It is further argued that on the same cause of action the second suit for recovery of maintenance charges was barred under law but the Family Court as well as the Shariat Court has ignored this important aspect of the case. He next argued that an application for execution of ex parte decree passed on 12.10.2004 was filed by the respondents but later on the application was withdrawn, therefore, the second suit for recovery of maintenance allowance was barred under law and the only remedy available to the plaintiff-respondents was to execute the decree already passed in their favour.
Moreover, the Judge Family Court while passing the ex part,/ decree on 31.3.2011 on the same cause of action has acted against the statutory provisions of law.
4. Conversely, Mr Nazir Ahmed Ghouri, Advocate, the learned counsel for the plaintiff-respondents argued that the judgment and decree passed by the Judge, Family, Court is legal and no interference is called for by this Court. He submitted that before the Family Court the defendant- appellant herein, failed to appear, therefore, he was proceeded ex parte. He submitted that the application for setting aside the decreed passed on 31.3.2011, of course, was well within time but no sufficient reason or cause has been furnished by the defendant-appellant as to how he failed to appear before, the Judge, Family Court. The learned Counsel further submitted that non-payment of maintenance charges is a continuous wrong, therefore, the fresh suit was filed for recovery of maintenance allowance, He contended that under Section 17 of the Family Courts Act, 1993, the provision of Qanun-e-Shahadat Order, 1984 as well as the Civil Procedure Code are not applicable, therefore, the subsequent suit filed by the plaintiff-respondents is not barred under law. The learned counsel requested for dismissal of appeal filed by the defendant-appellant.
5. We have heard the learned counsel for the parties and also perused the record with utmost care.
It is admitted position that the plaintiff-respondents, herein, obtained an ex parte decree for recovery of maintenance allowance on 12.10.2004 and an application for execution of decree was .Filed, which was, later on, withdrawn by the plaintiff-respondents. It is also an admitted position that on the same cause of action ex parte decree for recovery of maintenance allowance has been obtained by the plaintiff respondents on '31.3.2011. The crucial, point.Which needs resolution by this Court is whether a suit on the same pause of action in which the court Of competent jurisdiction had already passed a decree, can be filed or not? It is admitted by both the parties that the decree passed on 12.10.2004 is still intact and the same has not been cancelled or set aside by a Court of law. It is argued on behalf of the defendant-respondents that the subsequent suit was filed on the ground than, the defendant-appellant refused to pay maintenance charge's. If a decree is not executed and the judgment-debtor failed to satisfy the decree, further suit lies or a decree is executable specially in the circumstances that the decree is still intact. It is admitted that under Section 17 of the Family Courts Act, 1993, the provisions of Civil Procedure Code are not applicable, however, a complete scheme for execution of decrees and orders has been provided in Section 13 of the Family Courts Act, 1993.
6. Under Section 13 of the Family Courts Act, it is provided that the. Family Court shall pass a decree in such form and such manner, as may be prescribed. It is also provided that the decree shall be executed by the Family Court or by such other Civil Court as the District Judge may by special or general order direct. The proposition came under consideration of this Court in a case reported as Muhammad Ajaib v. Tasleem Wakeet [PL.J 2013 SC (AJ&K) 38], wherein it has been observed as under:- "The interpretation of Section 13 of the Family Courts Act, 1993, demands that the whole scheme of law laid down in this Act alongwith preamble has to be considered and appreciated. The intention of the legislature is clearly ascertainable that the purpose of the enforcement of the Family Courts Act, is; expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Once a question of fact has been determined by the Family Court after due appreciation of evidence, dragging the parties on the same .Question of fact in civil, suit, amounts to defeat the very purpose of this special law. Therefore, in our considered view the matter which falls within the jurisdiction of the Family Court relating to the payment of money is determined by the Family Court and a specific order is passed in this regard, such order will fall within the scope of Section 13 and the same can be enforced or executed by the Family Court or if so required under the provisions of sub-section. (4) of Section 13 by any other Civil Court if so directed by special or general order of District Judge."
' Thus, under law in presence of the decree dated 12.10.2004, the plaintiff-respondents were estopped from filing subsequent suit on the basis of same cause of action specially, in the circumstances that the decree passed on 31.3.2004 had attained finality. However, in this case, it appears that the previous ex parte maintenance decree dated 12.10.2004 was issued in favour of respondents and also their mother, Mst. Naila Kousar who is not party in the present round of litigation. According to admitted facts, during execution proceedings of the decree dated 12.10.2004, on 15.12.2004, Mst. Naila Kousar withdrawn from the application for execution of decree on the ground that her grievance has been redressed out of the Court, hence, execution proceedings were disposed of. In the previous judgment, Family Court awarded Rs, 700/- per head as maintenance allowance from July, 2003. This ex parte decree has not been challenged by the appellant which has attained finality. In our considered opinion, subsequent development during the execution of decree only bars Mst. Naila Kousar from claiming the maintenance as she has already withdrawn from the proceedings but the Court order passed in execution proceedings reveals that the compromise to the extent of respondents herein is not valid and withdrawal from execution decree was not effected under law, it can only be done with the permission of the Court.
As the respondents are minors, therefore, it is also duty of the Court to watch their interests.
Therefore, in our considered view, the decree passed on 12.10.2004 is fully effective and operative to the extent of respondents, however, due to withdrawal, it shall not be treated effective to the extent of Mst. Naila Kousar.
7. In the present round of litigation, Mst. Naila Kousar is neither the plaintiff nor she has made any claim for any subsequent maintenance as she has been divorced. According to contents of para-4 of the subsequent plaint, Mst. Naila Kousar has been divorced on 10.4.2005. In this paragraph, it has also been mentioned that the appellant has not paid third instalment of maintenance allowance.
In the subsequent plaint, on the basis of previous decree, the total amount of Rs, 5,68,000/- for past period, Rs, 3000/- per head, per month for future maintenance is claimed. The Court has awarded the decree that the respondent-minors are entitled to maintenance allowance at the rate of Rs, 700/- per month from 15.12.2004 till the date of decision, i,e, 31.3.2011 and Rs, 25000, per month for future maintenance. Although, in the plaint figures have been mentioned but in support of this claim, there is not a single sentence or evidence on record, however, the Trial Court has rightly declared the respondents entitled to maintenance allowance in the light of the previous decree. In view of the principle of law discussed hereinabove, we observe that the second suit on the same cause of action is not maintainable.
8. As it has been held that the fresh suit was not maintainable, therefore, to this extent, the appellant's appeal is partially maintainable. However, as he has never objected to or challenged the ex parte decree dated 12.10.2004, thus, the same attained finality. This decree is enforceable and the respondents on the basis of this decree may approach the Family Court for payment of maintenance allowance accordingly. The withdrawal of previous application for execution decree made by Mst. Naila Kousar will be operative only to her extent excluding the respondents minors.
Thus, while exercising the inherent powers, for the ends of justice, the Family Court is directed that the decree dated 12.10.2004 to the extent of respondent minors shall be enforced without any further delay.
9. We have also noticed that while deciding the issue regarding per month rate of maintenance allowance, there is no limit on the powers of the Family Court. Under the provisions of Family Courts Act, the Court may grant appropriate maintenance allowance according to the facts and demands of the justice in each case. However, under the provision of Section 488, Cr.P.C., as enforced in the Azad Jammu and Kashmir, the maximum rate of per month maintenance allowance is Rs, 700/-. The figure of Rs, 700/-was also substituted with the figure of Rs, "400" through the Code of Criminal Procedure (Amendment) Act, 1999 (Act XIII of 1999). According to scheme of law, under the provisions of Section 489, Cr.P.C., the Magistrate was also vested with the powers to increase the monthly maintenance allowance but same cannot be exceeded from maximum amount of Rs, 700/- per month. In our opinion, the amount of Rs, 700/- is very meager one and keeping in view the necessities of life and hiking in the rising prices, maintenance of a child or wife within the amount of Rs, 700/-per month is not possible. However, Courts have to pass the orders according to law enforced.
10. It is duty of the Legislature to enact/amend the law in the public interest, especially for safeguard of the rights of weak and suppressed classes like minor children and women.
Particularly, providing of a provision like Section 489, Cr.P.C. In the Family Courts Act, 1993 is necessary to meet the ends of justice. Although vide notification dated 28th June, 1994, issued under Section 20 of the Azad Jammu and Kashmir Family Courts Act, 1993, the Government of AJ&K has vested in the Judge, Family Court appointed in the District with the powers of Magistrate 1st class for the territorial jurisdiction of the concerned District.
' However, as hereinabove mentioned that without the powers like incorporated in Section 489, Cr.P.C., the investment of powers become fruitless. As in this case, the matter has been decided while exercising the powers as Family Court, not in exercise of Magisterial powers vested under this section, therefore, further deliberation is not required.
11. Keeping in view the legislative history of Azad Jammu and Kashmir, it is also necessary to be clarified that in Pakistan, Chapter XXXVI of the Criminal Procedure Code was omitted by Ordinance No, XVIII of 1981. In the Azad Jammu and Kashmir, Criminal Procedure Code remained adapted since 1948, however, for the first time in the year 2001, through the Ordinance, all the subsequent amendments made in the Pakistan from time to time were adapted and this Ordinance was subsequently replaced by Act XIII of 2001. Resultantly, Section 488, Cr.P.C., which was omitted through the Amendment Act 1981, also became redundant in the Azad Jammu and Kashmir.
Perhaps feeling this eventuality, in the Azad Jammu and Kashmir, subsequently, the Adaptation Act, 2001 was also repealed and substituted by Act VII of 2002 in which clearly the application of the provision of Section 488, Cr.P.C. Is saved. It will be useful to reproduce here Section 2 of the Act, VII of 2002 which reads as follows:--- "2. Adaptation of amendments of the Code of Criminal Procedure, 1898.-- In the Code of Criminal Procedure 1898 (Act V of 1898), as adapted in Azad Jammu and Kashmir, all the amendments made in Pakistan, from time to time, before the commencement of this Act, as far as practicable, are hereby adapted, except the amendments regarding devolution plan and Section 488 and shall always be deemed to have been so adapted in Azad Jammu and Kashmir."
' Thus, to keep and maintain the record straight, it is clarified that Section 488, Cr.P.C. Is applicable and enforced in the Azad Jammu and Kashmir. However, Section 489, Cr.P.C. Is no more applicable.
12. Now the question arises that if once monthly maintenance allowance is determined by the Family Court whether due to non-operation of Section 489, Cr.P.C. Remedy is available for enhancement or alteration in the maintenance allowance. As it has been hereinabove observed that under the provisions of Family Courts Act, there is no limit upon the Family Court to fix or determine the monthly rate of maintenance allowance according to facts of each case. As the maintenance is continuous process and the person entitled to be maintained has legal right to approach the Court for adequate maintenance allowance. In this eventuality, remedy is to approach the Family Court for enhancement/alteration in the maintenance.
13. The legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected. Therewith. Under the provision of Section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matters specified in the schedule. The matter of .Maintenance is at serial No, .3 in the schedule. Thus, the Family Court has got exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance is granted, thereafter, if the granted rate for per month allowance is insufficient and inadequate, in that case, according to scheme of law, institution of fresh suit is not necessary rather -the Family Court may entertain any such application and if necessary make alteration in the rate of maintenance allowance. Although, these powers are not specifically mentioned in the Family Courts Act as previously were postulated under the provision of Section 488, Cr.P.C., but while keeping the whole spirit and scheme of this special enactment and mechanism provided by legislature, especially, while taking into consideration the preamble of the Act, the intention of legislature can be easily ascertained that the Family Court has got powers to entertain such-like issues which are connected with the matters specified in the schedule.
Otherwise, very purpose of the establishment of the Family Courts regarding expeditious settlement and disposal of the disputes will be defeated. Therefore, in this case if the respondents- minors feel advised, .They may apply to Family Court for enhancement/alteration in per month rate of maintenance allowance. However, this application will not bar the execution of the decree already granted for maintenance allowance.
' This appeal stands disposed of in the terms indicated above.