' SHEZADA MAZHAR, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the legality and validity of judgment and decree dated 24-2-2009 passed by the learned Judge Family Court, Khushab as well as judgment and decree dated 6-6-2009 passed by the learned Addl. District Judge, Khushab. The petitioner has also assailed the judgment and decree dated 7-4-2009 whereby the learned Addl. District Judge dismissed the appeal against judgment and decree dated 24-2-2009 filed by the appellant as well as the application filed by the petitioner for installments of decretal amount.
2. The petitioner was married with respondent No.3 on 24-1-1999 and out of this wedlock, Muhammad Aashan minor was born. It was not a peaceful and happy matrimonial life of the spouses and respondent wife had to take resort of filing a suit inter alia for recovery of maintenance allowance, articles of Barri and in the alternative Rs.69,500 and Rs.1,00,000 as damages. The said suits were contested by filing written statements raising certain preliminary as well as factual objections. Out of the divergent pleadings of the parties, the learned Judge Family Court proceeded to frame necessary issues. Both the parties led evidence in respect of their respective claims.
3. The learned Judge Family Court after hearing the arguments advanced by the learned counsels for the parties proceeded to decide the aforesaid suits through consolidated judgment and decree dated 24-2-2009 in the following terms:-- "In view of my findings on the above mentioned issues, the suit of the plaintiff for recovery of Bari articles is decreed with the observation that the plaintiff is entitled to recover articles of Barri which are presently lying with the defendant and in alternative to get Rs.31,000 as a price thereof.
The suit of the plaintiffs for recovery of maintenance allowance is decreed to the extent of minor plaintiff No.2 at the rate of Rs.1400 per month from December, 2006 till the date of institution of the suit and at the same rate in future with 5% annual increase while Rs.4000 as maintenance allowance is also decreed to the extent of plaintiff No.1 for the whole period of Iddat. The suit of the plaintiff for recovery of Rs.100000 as damages is dismissed."
4. Being aggrieved respondent No.3 filed appeal before the learned lower Appellate Court, who vide impugned judgment and decree dated 6-6-2009 proceeded to decide the appeal in the following terms:- "The decision of learned Judge Family Court on issue No.1 is set aside, the appeal is accepted and it is held that plaintiff No.1 is entitled to recover maintenance allowance from the defendant at the rate of Rs.2000 per month w.e.f. April, 2001 till divorce i.e. 5-5-2007 and also for Iddat period as well at the same rate and keeping in view the fact that plaintiff No.2 is studying in English Medium school and defendant being employee of PAF, plaintiff No.2 is held entitled to get maintenance allowance at the rate of Rs.2000 per month w.e.f. April, 2001 till the date of his majority. The interim maintenance already given by the defendant to plaintiff No.2 will be adjusted in the said amount".
5. It is also pertinent to mention here that the petitioner also filed an appeal against the above said judgment and decree on 20-3-2009 before the learned Lower Appellate Court. On 24-3-2009, while admitting the appeal for regular hearing, the petitioner was directed to deposit the whole decretal amount of maintenance allowance of minor uptil now with that Court. The petitioner was further directed to deposit the monthly maintenance of minor on or before 10th of each coming month in advance. Later on vide order dated 7-4-2009, the said appeal was dismissed for non-deposit of decretal amount and for noncompliance of the order dated 24-3-2009. The application of the petitioner for installment for deposit of decretal amount was also dismissed.
6. Being not satisfied with the judgments and decrees of the learned Courts below, the petitioner has filed aforesaid Constitutional petition.
7. The learned counsel for the petitioner submits that both the Courts below failed to, appreciate the evidence adduced by the petitioner as respondent No.3 was unable to prove her case as her oral statement was set of contradictions. No such list of articles of Barri as relied upon by respondent No.3 was prepared or handed over to the petitioner at the time of Rukhsati. It is further complained that both the Courts below have failed to appreciate the evidence of the parties in its true perspective and reached to the conclusion not warranted by law. The findings of both the Courts below are not based on sound appreciation of facts, so he prayed for setting aside the impugned judgments and decrees of both the Courts below to the extent of dowry articles. Further submits that amount of maintenance is exorbitant and petitioner is unable to pay the said amount as the same has been fixed without considering the financial position of the petitioner. The learned counsel while relying upon Umar Farooq v. Mehnaz Iftikhar and others 2006 MLD 555, Mst. Allah Rakhi v. Tanvir lqbal and others (2004 SCMR 1739), Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 and Abdullah v. Mst. Zubaida Begum and others 1998 CLC 1631 (Lahore) prayed for setting aside of impugned judgments and decrees as well as order dated 74-2009.
8. I have heard the learned counsel for the petitioner and have also gone through the record with his able assistance.
9. Against judgment and decree dated 24-2-2009 petitioner as well as respondents Nos.3 and 4 filed separate appeals. The appeal of the petitioner was dismissed on 7-4-2009 due to non- deposit of decretal amount and for non-compliance of order of learned Appellate Court dated 24-3-2009. The appeal of respondents Nos.3 and 4 was allowed vide judgment and decree dated 6-6-2009. Both these judgments and decrees were assailed through present writ petition.
10. The first question arises regarding the maintainability of the present writ petition, whether one writ petition was maintainable against judgment and decree passed by the appellate court on two separate appeals and on two separate dates?
11. In this regard although the Civil Procedure Code 1908 (C.P.C.) is not, applicable to the suits filed under West Pakistan Family Courts Act, 1964, however High Court in its extraordinary Constitutional jurisdiction can recourse to C.P.C. As an enabling tool. In this regard reference is made to the decision of Hon'ble Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein it was held; "The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi (1) observed: "The Code is framed on the scheme of providing generally for the mode in which the High court is to exercise its jurisdiction, whatever it may be while, specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the code is not to apply."
' The underlining in the above quotation is mine. The words underlined clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil matter, whatever may be the nature of that jurisdiction".
12. Therefore, in order to resolve the issue of maintainability of the present writ petition recourse to the C.P.C. Can be made.
13. Under C.P.C. Joinder of parties as well as cause of action is allowed and it relates to the convenience of the parties. Therefore, while considering the issue of joinder of cause of action by the petitioner this court should also approach the matter liberally.
14. In the case in hand matter arises from the same judgment and decree of the Family Court, against which judgment of the Family Court, husband and wife filed two separate appeals which were decided by the learned Appellate Court separately. The present writ petition is challenging the two judgments of the Appellate Court dated 7-4-2009 and 6-6-2009 in which parties are same and both judgment arise from the same judgment of the Family Court. Therefore, if both the causes of action are decided jointly no prejudice will be caused to any of the parties. Rather it will provide convenience not only to the petitioner/husband but also to the respondent/wife and minor.
15. The Hon'ble Supreme Court of Pakistan has also allowed joinder of several causes of action against the same defendant/respondent in Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company (1992 SCMR 2375) wherein it was held:-- "It is manifest from the reading of Order II, Rule 3 that a plaintiff can unite in the same suit several causes of action against the same defendant. Needless to mention that in a 'suit for pre-emption the pre-emptor and the vendee are the only necessary parties and as such the plaintiff/pre- emptor could join against the vendee/defendant several causes of action. The impugned transaction though on behalf of different persons and finalized through two different "mutations were sanctioned on the Same date. The plaintiffs/appellants rightly joined the two sale transactions in a single suit because if he had filed separate suits, even then they had to be consolidated as common questions of law and fact regarding right of pre-emption of parties and determination of market value would have been involved. As such the joining of two transactions in one suit was more proper and convenient than filing of separate suits".
Keeping in view the above, it can be held that the petitioner has rightly I E joined the two causes of actions in one writ petition.
16. However, the matter does not end here as the two judgments' were passed by the learned Addl.
District Judge on two separate dates i.e. 7-4-2009 and 6-6-2009. Therefore, the next question arises with regard to the doctrine of laches. Whether the laches will be applicable to the present writ petition as the same has been filed in October, 2009 whereby decision dated 4-4-2009 was also challenged?
17. In this regard, it is submitted that laches per se is not a bar to the invoking of the constitutional jurisdiction and question of delay in filing petition would have to be examined with reference to the facts of F each case. In case of laches, one has to examine the lapse of time on equitable principles. One should not be restricted by time factor as the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan is a discretionary and extraordinary relief. However, this jurisdiction should not be used in favour of a party who is guilty of gross negligence and of laches.
The question of laches, as mentioned above, should be examined on case to case basis. This examination should also be carried out in a way that it should not perpetuate injustice to any party.
The delay should be condoned if the order impugned is patently illegal or void or grave injustice to any party will be caused by the order impugned.
18. Keeping the above in mind, when the order dated 4-4-2009 is examined, it is found that the appeal was dismissed solely on the ground that petitioner had failed to deposit the maintenance of minor as per direction of the court. This condition of deposit of minor's allowance is not against the provision of law as under Section 17-A of the West Pakistan Family Courts Act, 1964 a Family Court has the power to pass an order for interim maintenance. It is also an admitted fact that appeal is continuation of suit and therefore the order passed by the learned Appellate Court directing the petitioner to deposit the maintenance allowance of minor by the next date of hearing and petitioner's failure to deposit the amount or in other words petitioner's failure to comply with the order of the Appellate Court calls for the strict action against the petitioner. The Appellate Court rightly dismissed petitioner's appeal on the ground of failure to deposit the maintenance amount as well as on account of non-compliance of order of the Appellate Court. The order impugned is neither illegal nor void. Injustice is also not caused due to the said order to the petitioner. Although learned counsel for the petitioner has relied upon Abdullah v. Mst. Zubaida Begum and others (1988 CLC 1631) to state that pre-condition of deposit of decretal amount is illegal.
19. In the said judgment decree was for the recovery of dower amount and the learned Appellate Court on application of the `respondent/wife directed the petitioner of the said case to deposit the amount of decree. The court held that this pre-deposit of decreetal amount is illegal. In the case in hand the learned appellate court only directed the petitioner to deposit the amount of maintenance allowance of minor and not the whole decretal amount which include the dowry/barri articles as well as maintenance of the respondent wife., Therefore said precedent case is not applicable to the case in hand.
20. Keeping in view the above facts, this petition is hit by the doctrine of laches only to the extent of order dated 4-4-2009 and is not maintainable to that extent.
21. The judgment and decree dated 6-6-2009 was passed on the appeal of respondents Nos.3 and 4 wherein only issue with regard to maintenance allowance was challenged, therefore I shall see as to what was the claim of respondents Nos.3 and 4 in their suit for recovery of maintenance and dowry articles. The minor (respondent No.4) demanded Rs.3000 per month w.e.f. April, 2001 as well as future maintenance at the same rate but the Family Court awarded only Rs.1400/per month from December, 2006 till date of institution as well as future maintenance at the same rate with 5% annual increase, whereas the claim of respondent No.3 was decreed only to the extent of Rs.4000 for Iddat period instead of from April, 2001 as 'demanded. The claim of dowry articles was decreed to the extent of Rs.31,000 instead of claimed amount of Rs.69,500/. This decree of the Family Court was modified only to the extent of the maintenance allowance of respondent Nos.3 and 4 which was enhanced from Rs.4000 total for iddat period to Rs.2000 per month from April, 2001 till divorce on 5-5-2007 plus the iddat period at the same rate, whereas the maintenance allowance of respondent No.4 was also enhanced from Rs.1400 to Rs.2000 per month from April, 2000 till majority.
It means that total claim of the respondents was not accepted by the learned Judge Family Court.
This decree in my view has not been passed in excess of jurisdiction and same cannot be termed as exorbitant keeping in view the expenses of minor / over education, clothing, medicine as well as to meet the other routine expenses. The petitioner being real father of the minor is legally and morally bound to maintain him as per injunctions of Islam.
22. Regarding maintenance of respondent No.3, it is observed from the record that petitioner had not denied that respondent No.3 is ghairabad since April, 2001. In his examination-in-chief petitioner has categorically stated that son is with the respondent for last 2/3 years. Therefore the desertion is proved from April, 2001. It is also proved from the Nikahnama on record that it was agreed between the parties that in case of desertion the petitioner shall pay an amount of Rs.2000 per month to respondent No.3 as maintenance allowance. Therefore, the learned Appellate Court rightly modified the judgment and decree to the extent of maintenance allowance of the respondents.
23. Regarding dowry articles suffice it to say that the writ petition has been held not maintainable against the order dated 7-4-2009, therefore, this Court cannot consider the submissions of the petitioner's counsel with regard to dowry articles. Even otherwise in examination-in chief the petitioner has not denied receipt of dowry articles. However, it is claimed that the said articles were returned to respondent No.3 under the compromise but the petitioner has failed to place on record any evidence, oral or documentary, to show that respondent No.3 had taken the possession of dowry articles. In absence of such evidence also this court cannot interfere with the findings of both the courts below.
24. Further, there are concurrent findings of both the learned Courts below against the petitioner. In case of concurrent finding of the courts below the scope of the constitutional petition becomes very limited. The petitioner has failed to point out any misreading or non-reading of the evidence. It has been laid down in Syed Arif Ali Sabri v. Abdul Samad through L.Rs. And 2 others (2008 YLR 2309) that "when there is concurrent findings of Courts below, the scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on misreading or non-reading of the evidence". The same view has also been taken in Sadruddin v. Aslam Madad Ali and others (PL D 2008 Karachi 2005).
25. For what has been discussed above, the judgments and decrees passed by the learned courts below are in accordance with law and facts of the matter and do not require interference by this Court. The writ petition is dismissed with no order as to costs.
26. Before parting with the present judgment, I must appreciate the efforts of Mr. Qaisar Abbas, Research Officer, of this Court who has rendered valuable assistance to ascertain the case law on the subject.
Petition dismissed.