1. ' MUHAMMAD MUSHTAQ CHAUDHARY, J.---This appeal has been filed against the decision and decree of Senior Civil Judge empowered as Judge Family Court Muzaffarabad dated 18-3-2013 whereby fresh suit filed by appellant for maintenance allowance was dismissed.
2. ' The brief facts forming the background of instant case are that Syed Muhammad Ali (minor) filed a suit through his real mother against Syed Raza Ali, respondent-father, before Judge Family Court Muzaffarabad on 16-5-2010, for recovery of past maintenance allowance at the rate of Rs,5,000 per month from October, 2008 to April, 2012, total Rs,2,10,000 and future maintenance allowance at the rate of Rs,15,000 per month.
3. ' The learned Judge Family Court, after due process of law, initiated ex parte proceedings against the respondents on 13-8-2012. The appellant was ordered to produce evidence. Thereafter, mother of appellant got recorded her statement and also produced two witnesses in support of the claim.
4. ' After hearing ex parte arguments, the learned Judge Family Court passed a decree for recovery of maintenance allowance at the rate of Rs,5,000 per month from the date of institution of suit till the age of puberty of minor appellant, vide its decision and decree dated 24-9-2012. The aforesaid decision and decree were not challenged in appeal before this Court.
5. ' Thereafter, Syed Muhammad Ali (minor) filed another fresh suit through his real mother against Syed Raza Ali, respondent-father, before Judge Family Court Muzaffarabad on 15-1-2013 for recovery of past maintenance allowance at the rate of Rs,10,000 per month from October, 2008 to January, 2013 total Rs,5,20,000, and future maintenance allowance at the rate of Rs,15,000 per month which was dismissed vide judgment dated 18-3-2013; hence, this appeal.
6. ' Miss Balqees Rasheed Minhas, the learned counsel for the appellant vehemently contends that the impugned judgment is liable to be dismissed because the ledned Judge Family Court has failed to consider this aspect of the case that Family Courts Act is a special law, under which the principle of resjudicata does not apply; therefore, the finding of the learned Judge Family Court that the appellant is prohibited by law to file a fresh suit for maintenance allowance, is not sustainable. The learned counsel points out that the superior courts have established this principle that on the basis of previous cause of action in Family Court, fresh institution of suit is not barred; therefore, the learned Judge Family Court committed grave error while not following the precedents of superior courts. The learned counsel further agitates that the change and inflation in livings things is occurring day by day and if for the sake of argument it is presumed that the fresh suit of the appellant for maintenance allowance was on the basis of previous cause of action, even then the maintenance allowance should have been increased in the light of inflation, but the Family Court failed to determine this aspect of the case. The learned counsel contends that the appellant has also appended relevant documentary proof regarding school expenses of the minor appellant, but the court below ignored the same; therefore, the judgment of the court below comes in the purview of misreading and non-reading of evidence. The learned counsel finally submits that while dismissing the impugned judgment, a decree of past maintenance allowance at the rate of Rs,10,000 per month from October, 2008 to till now and future maintenance allowance at the rate of Rs,15,000 per month may be passed in favour of minor appellant. The learned counsel in support of her arguments cited the following authorities:--
(1) 1985 MLD (Lahore) 98;
(2) 2009 MLD (Lahore) 1427; ' I have heard the ex parte arguments of the learned counsel for the appellant and gone through the record of the case with utmost muse.
7. ' First of all, I would like to discuss upon this argument of the learned counsel for the appellant that Family Courts Act is a special law, under which the principle of res judicata does not apply therefore, the finding of the learned Judge Family Court that the appellant is prohibited by law to file a fresh suit for maintenance allowance, is not sustainable. It is pertinent to note here that no doubt, Family Courts Act is a special law but general principles of res judicata can be made applicable by Courts where the C.P.C. Is not applicable because disputes once decided must attain finality at some stage. The aforesaid view finds support from the following case-law:-- ' In the case titled Mst. Zareena Begum v. Nisar Hussain and another (1996 SCR 82) it was laid down:-- "I am fully conscious of the fact that in the instant case neither the provisions of 'Qanun-e- Shahadat' nor Code of Civil Procedure are applicable. However, I have referred to the above authorities to bring home the point that the findings given previously in exercise of criminal jurisdiction never create bar of res judicata in civil jurisdiction or vice versa. It is correct that general principle of res judicata is applicable in a civil case to give finality to a dispute, even if section 11, C.P.C., is not applicable. However, in such cases, the principle of res judicata is not applicable strictly but with certain limitations. Before applying the general principle of res judicata, the scope of inquiry in previous proceedings the competency of forums and, prima facie, correctness of the findings etc. Are to be considered."
8. ' In another case titled Said Muhammad v. Karam Dad and 5 others 1999 YLR 117 it was observed:-- "The High Court has also relied on a judgment of the Supreme Court of Pakistan reported as Rehmat Ullah v. Ali Muhammad (1983 SCMR 1064) wherein it is laid down that if any question has been determined by a tribunal or a statutory authority it cannot be re-agitated before a civil Court on the general principles of res judicata. It is an accepted position that general principles of res judicata can be made applicable by courts where the Code is not applicable, because disputes once decided must attain finality at some stage. However we may observe that section 11 of the Code is not applicable general principles of res judicata have to be applied with care and technicalities have to be avoided.
9. ' From the perusal of above authorities, it reveals that general principle of res judciata can be made applicable by courts where the Code is not applicable or in a civil case to give finality to a dispute, even if section 11, C.P.C. Is not applicable, however, the principles of res judicata have to be applied with care and certain limitations .
10. ' I am also cognizant of the fact that the principle of res judicata is not strictly applicable in all the cases before Family Court. For example in the case of dissolution of marriage/'Khula', a wife may claim divorce time and again and principle of res judicata is not applicable on it. My aforesaid view finds support from the following cases:-- ' In the case titled Ghulam Muhammad v. Mst. Rashida Bibi and others (PLD 1983 Lahore 442), it was observed:- "The plea of 'Khula' was, therefore, recurring cause of action and in no circumstances could it be hit by the principle of res judicata as adopted in section 17 of the Family Courts Act. I agree with the findings of the learned District Judge. Obviously the plea of 'Khula' is a recurring cause of action and it cannot be hit by the principle of res judicata as adopted in section 17 of the Family Courts Act. A wife can again and again take up the plea of 'Khula' as she could develop hatred or dislike against her husband every time under different circumstances and if she is successful in establishing and satisfying .The conscience of the court that she has firmly decided not to live with the husband, the marriage has to be dissolved on the basis of 'Khula' and the question of res judicata cannot be a bar. In view of this finding, I do not see any substance in this writ petition which is accordingly dismissed but there shall be no order as to costs."
11. ' In another case titled Dost Muhammad v. Mst. Maqsoodan Bibi and another (PLD 1985 Lah. 340), it was observed:-- "The doctrine of res judicata has no application in the circumstances of the case. A wife may apply for divorce on the ground of being habitually beaten, lack of maintenance etc. If she fails in the suit, that will not give a handle to the respondent to go on beating the wife or not paying the maintenance by saying that she cannot go to the court again and get a decree on this ground. The suit earlier filed failed according to the pleadings and evidence of the parties in that suit If circumstances arise which make the life of the parties impossible to lead within the limits prescribed by Islamic Law, it would be open to the wife to seek dissolution of marriage on the ground of 'Khula' notwithstanding that a request for dissolution of marriage on the ground of 'Khula' had earlier failed."
12. ' Therefore, the contention of the learned counsel for the appellant that on the basis of previous cause of action in Family Court fresh institution of suit is not barred so the learned Judge Family Court committed grave error while not understanding the precedents of superior courts, is hereby repelled because the principle of res judicata saves the courts from being vexed repeatedly by a litigant for the same relief. The aforesaid view is fortified from a case reported as Muhammad Akram v. Additional District Judge and others (PLD 2008 Lahore 560), wherein the following principle was enunciated as under:-- "It is of course true that the provisions of sections 10 and 11 of the C.P.C. Are applicable to the proceedings before Family Court in respect of Part I of the Schedule, which includes the claim regarding maintenance allowance as well. 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. As observed by an Hon'ble Bench of this Court in the case of Mst. Azra Israr v. Inspector General of Police Punjab and others PLD 2003 Lahore 1, essence of the principle of res judicata contained in S.11, C.P.C. Is that a relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum. The principle, thus, saves the court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action.
13. ' So far as the authorities (1985 MLD 98 and 2009 MLD 1427) cited by the learned counsel for the appellant in support of her case are concerned, it was held in the aforesaid judgments that subsequent enhancement of maintenance allowance can be allowed on the ground of change in circumstances and conditions as well as the cost of living or increasing' of father's income, if proved, but in the case in hand the appellant claimed maintenance allowance in his fresh suit from October, 2008, as claimed in his earlier suit on the same grounds and the points of inflation and increase in father's income have not been raised; therefore, the aforesaid authorities do not render any help to the appellant.
14. ' Coming to the instant case, the appellant in his first suit claims past maintenance allowance from October, 2008 to April, 2012 at the rate of Rs,5,000 per month and future maintenance allowance at the rate of Rs,15,000 per month, whereas in second suit, the appellant claims past maintenance allowance from said October, 2008 to January, 2013 at the rate of Rs,10,000 per month and the future maintenance allowance at the rate of Rs,15,000 per month. It is important to point out here that the only claim of appellant in fresh suit is past maintenance allowance from Rs,5,000 to Rs,10,000 per month and future maintenance allowance at the rate of Rs,15,000 per month. A scrutiny of both suits, fresh and earlier, reveals that the appellant took divergent stands by claiming past maintenance allowance in both suits from October, 2008, which negates his earlier suit wherein she mentioned all expenses including his admission in Roots School System and Pyramid School, but later on in the fresh suit he changed his stance and claimed past maintenance allowance at the rate of Rs,10,000 instead of Rs,5,000 rather in my opinion, he should have filed an appeal before this Court against the earlier decision and decree dated 21-3-2012 passed by learned Judge Family Court, or an application for increasing future maintenance allowance should have been filed before Judge Family Court on the grounds of inflation and change in circumstances, but he failed to do so; therefore, the learned Judge Family Court Muzaffarabad has not committed any illegality while dismissing the fresh suit of minor appellant.
15. ' Resultantly, finding no force in this appeal, it is hereby dismissed.