' SHEZADA MAZHAR, J. --- Petitioners have challenged the judgment and decree dated 12.10.2009 passed by the learned Judge Family Court, Faisalabad whereby the suit for maintenance allowance filled by the petitioners was dismissed under Section 11 of the Civil Procedure Code, 1908.
Petitioners have also challenged the judgment and decree dated 18.11.2009 whereby the appeal filed by the petitioners against the impugned judgment and decree of the learned Judge Family Court, was also dismissed by the learned Additional District Judge, Faisalabad.
2. The brief facts giving rise to the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are that Mst. Kausar Bibi, mother of the present petitioners and ex-wife of the Respondent No. 1, filed a suit for recovery of maintenance for herself as well as for present petitioners which was decreed on 17.01.1993. Against the said judgment and decree, respondent No. 1 filed an appeal wherein a compromise was effected between the parties before the learned Additional District Judge, Faisalabad whereby custody of the minors was given to the mother of the petitioners in lieu whereof, she gave up maintenance allowance already decreed in favour of the petitioners. On attaining the age of majority, petitioners approached the learned Judge Family Court for recovery of maintenance allowance as well as for recovery of dowry articles by filing two separate suits. Bath suits were consolidated by the learned Judge Family Court and after consolidation of the suits, respondent No. 1 filed an application under Section 11 of the Civil Procedure Code, 1908, for dismissal of the suit on the ground of res judicata. Both the suits were dismissed by the learned Judge Family Court, Faisalabad in the following terms:--- "Their mother who filed the present suit for the recovery of maintenance allowance on their behalf at that time rightly filed the suit to get the settlement in which she settled the matter with the defendant. It is. Note worthy that after that settlement, plaintiff's wait for their majority they filed the present petition after lapse of many time after majority but if they have any grievance from the settlement as guardian, they should move an application to the Court for the appoint of fresh guardian but they did not do the same and now they filed the present suit. Objection raised by the defendant are lawful and forcible, hence,admitted and no person can be vexed twice in the same cause of action.
' Alongwith the present suit another consolidated suit titled as "Shamim Akhtar v. Anwar Ali" is also sub-judice before the present Court in which the plaintiff No. 2 claimed the amount for her dowry articles from the defendant, whereas the dowry articles of the plaintiff No. 2 falls within the definition of maintenance allowance and as the same matter has already decided between the parties vide the settlement dated 17.01.1993, therefore, she is not entitled to recover the same from the defendant, as the matter has already dissolved. With these observations by accepting the application under Section 11 of C.P.C., both the plaints of suits are hereby rejected. Court shall not follow the event. Decree sheet be drawn. File be consigned to the record room after its due completion."
3. Against the above judgment and decree, petitioners filed an appeal before the learned Additional District Judge, Faisalabad who vide its judgment and decree dated 18.11.2009, dismissed the same in the following terms:--- `There can be no two opinions that a claim for recovery of dowry articles can be raised by a wife only against her husband on the premises that she was given dowry articles by her parents which were taken by her husband to his house at the time of rukhsati of his wife, however, no such eventuality has arisen in the instant case. From the above, it follows as natural corollary that a claim for providing dowry articles raised by a daughter against her father is not sustainable in the eyes of law. The Trial Court has mediculously taken into account the pros and cons of the matter and rightly found that plaints of both the suits were hit by the provisions of Section 11 of C. P C. No any illegality or infirmity has been pointed out in the impugned orders which are hereby upheld.
The case-law cited by learned counsel for the appellants is not applicable to the facts and circumstances of the case. Consequently, the present appeals lack any merit, which are hereby dismissed. There is no order as to costs. Files of this Court be consigned to record room and files of Trial Court be sent back immediately"
4. Therefore petitioners have challenged the above-mentioned judgments and decrees of the Courts below through present writ petition with the following prayer:- "In view of the above, it is most respectfully prayed that this petition may kindly be accepted; directing the respondent to provide maintenance aIlowance @ of Rs. 10,000/- p.m. To each petitioner till petitioner No. 1 is married and petitioner No. 2 attained the age of majority or himself becomes an earning hand from the date of passing the decree dated 17.01.1993 in favour of the petitioners passed by Mr. Muhammad Mazhar, learned Judge Family Court, Faisalabad, by setting aside the impugned judgments and decrees passed by both the learned Courts below.
' It is further prayed that any other relief which this Hon'ble Court deems fit may also be granted accordingly to the petitioners."
5. Respondent No. 1 was served personally but he chooses not to appear before this Court, therefore, he was proceeded ex parte vide order dated 27.04.2012.
6. Learned counsel for the petitioners submits that both the Courts below were wrong to dismiss the claim of maintenance allowance of petitioners as their mother was not competent to give up their maintenance allowance. Submits that on attaining the age of majority petitioners approached the Court through suit which could not be dismissed on the ground that earlier suit was compromised by their mother when they were minors. Learned counsel further submits that maintenance is a recurring cause of action which will continue to accrue in favour of the petitioners till the marriage of petitioner No. 1, for petitioner No. 2 till the age of majority or himself becomes an earning hand. Submits that respondent No. 1 is liable to pay the maintenance to the petitioners from date of compromise between the mother and respondent No. 1 and in this regard referred to the judgment of the Hon'ble Supreme Court reported as "Abdul Ghafoor v. Mehmood Ahmad alias Asghar and others" (2003 SCMR 764). Learned counsel also relied upon "Muhammad Shafi v. Suraya Begum & 7 others" (2001 S.L.R 203) to state that under the law, father is bound to maintain the daughters till such time they are married. Learned counsel for the petitioners while relying upon the judgment "Mehmood Asif Butt v. District Judge, Gujranwala and 2 others" (PLJ 2003 Lahore 1704) states that second suit for recovery of maintenance is maintainable.
7. I have heard the arguments of the learned counsel for the petitioner and have gone through the record with the able assistance of the learned counsel for the petitioner.
8. Earlier suit filed by the mother of the petitioners for recovery of maintenance allowance was decreed by the learned Judge Family Court vide judgment and decree dated 17.01.1993 whereby respondent No. 1 was directed to pay Rs. 300/- per month per head from 29.01.1991. Said judgment and decree was challenged by the respondent No. 1 through an appeal wherein parents of the petitioners entered into compromise whereby in lieu of the custody of petitioners, mother of petitioners forgiven her claim of maintenance as well as the claim of petitioners' maintenance being guardian-ad-/item. Based upon this compromise, both the Courts below have dismissed the suit of petitioners for maintenance allowance being hit by Section 11 of the Civil Procedure Code, 1908.
9. The moot point, therefore, is "whether the second suit for maintenance filed by the children is hit by the principle of res iudicata or not?
10. Bare reading of Section 17 of the West Pakistan Family Courts Act, 1964, revels that Section 11 of the Civil Procedure Code, is applicable to the Family cases. However, under changed circumstances and with the passage of time suit for enhancement of maintenance allowance has been accepted by the Courts. In this regard reference is made to the judgment of this Court reported as "ljaz Ahmed through Attorney v. Judge Family Court and 5 others" (2005 CLC 1913) wherein it was held that:--- "There is no bar in the Family Courts Act, 1964 for filing second suit for enhancement of maintenance allowance except the one under Section 11 of the C.P C., which was made applicable to these proceedings by virtue of Section 17 of the Act of 1964. Under this provision, second suit will only be barred in case the matter has been directly or substantially in issue in a former suit between the parties. No doubt the earlier suit was for recovery of maintenance but issue regarding its enhancement was neither raised nor was considered in that suit and thus was not in issue, then. In view of this position, Section 11 of the C. P C. Would not bar any subsequent suit, which was filed only for enhancement of maintenance allowance."
11. Similarly in "Muhammad Akram v. Additional District Judge and others" (PLD 2008 Lahore 560), this Court 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."
' It was also held in the said judgment that:--- "The growth of the children, the cost of living, any change in the status of the parties, change in the expenditures to be incurred on day to day needs of the children etc. Are the factors which either introduce 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 the application of the rule of res judicata to the case of maintenance allowance has a peculiar complexion and by now it is will settled position of law that under the changed circumstances and the needs of the minor children fresh proceedings for maintenance allowance were maintainable before the Family Court having jurisdiction in the matter."
12. Similar view was taken by this Court in "Muhammad Islam v. Mst. Rashidah Sultana and 4 others"
(2013 CLC 698) and in "Muhammad lqbal v. Mst. Nasreen Akhtar" (2012 CLC 1407). This Court in "Wan Muhammad Sabir v. Mst. Uzma Parveen and 2 others" (PLD 2012 Lahore 154) held that father is even liable to maintain a divorced daughter. It was held in the case as under:- "The rationale for providing maintenance to a Muslim female until her marriage is understandable as in most cases she could need the financial support of her father for having no means of her own. The responsibility of the father continues till his daughter's marriage when it is passed on to her husband, who is under a legal obligation to maintain his-wife. However, the obligation of the husband to maintain his wife lasts as long as the marriage is intact with the consequence that upon the dissolution of the marriage, the husband is no longer liable and has no obligation to maintain his erstwhile spouse. Upon losing her marital status, a female reverts to her status of a single lady who needs financial support in the same manner as she needed it before she was married. Her right to receive maintenance should not be defeated by her marriage no longer in existence. The rationale for providing maintenance to an unmarried lady is equally applicable to a divorced lady as in either case the single lady has no independent source of income. As such, there is no reason to treat a divorced lady differently and deny her the maintenance she is in need of it."
13. From the above case-law, it is clear that a second suit for enhancement of maintenance allowance can be filed by the minors or their mother on behalf of the minors.
14. The present suit is not a suit for enhancement of the maintenance allowance, rather it is second suit for recovery of maintenance allowance after the first was settled in compromise at appeal stage. Petitioners' mother forgo claim of maintenance allowance of the petitioners in the following terms:- "it is submitted that I in my personal capacity as well as being the guardian ad-litem of my children namely Mst. Shamim Bibi and ljaz Ahmad have settled the dispute of maintenance allowance with the appellant and I in my personal capacity as well as being guardian ad-litem of respondents No. 2 and 3 will not claim past and future maintenance allowance on the basis of impugned decree from the appellant and both the minors namely Mst. Shamim Bibi and ljaz Ahmad will remain in my custody during the age of majority. The above compromise is in the welfare and interest of minors/respondents No. 2 and 3."
15. From the above statement it is clear that petitioners' mother forgo claim of maintenance of petitioners on the basis of decree dated 17.01.1993 passed against the respondent No.
1. The present case has been filed not on the basis of the earlier decree but on the basis of law which put a duty upon the father to maintain his children.
16. Even otherwise, the principle of res judicata is not applicable to the present suit as the compromise had been effected by the mother of the petitioners as guardian ad litem of the petitioners. Under Order XXXII, Rule 7, C.P.C., any compromise/agreement without obtaining permission from the Guardian Court is void.
' Order XXXII, Rule 7 of C.P.C. States as under:- ' Agreement or compromise by next friend or guardian for the suit.
' No next friend or guardian for the suit shall, without the leave of the Court, expressly, recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor"
' The above provision clearly states that guardian ad-litem is required to obtain prior permission from the Guardian Court for entering into a compromise.
17. In the case in hand, no such permission was obtained by the guardian ad-litem before entering into compromise. Therefore, it was not a valid compromise and cannot bind the petitioners. In this regard, reference is made to the case reported as "Mst. Rakhmat Jan v. Umar Mehmood (Minor) and another" (PLD 2013 AJK (HC) 8) wherein it was held as under:--- "The above-mentioned provision of law contemplates that a guardian ad-litem shall not be permitted to enter into a compromise with the plaintiff on behalf of the minor without obtaining a prior permission from the Court before which the matter is sub-judice against a minor. But the Trial Court did not fulfil the requirements of the said provision of law because the Court was bound to enquire as to whether a proposed compromise was in the interest of minor or not and to grant permission to a guardian ad-/item for the said compromise.
18. Similarly, in "Salahuddin v. Mst. Zohra Begum and 6 others" (2008 CLC 75) Sindh High Court at Karachi held as under:- "It is duty of the Court to safeguard the interest of the minors. Rule 7, C.P.C. Prohibits any agreement or compromise without the express leave of the Court. In Sindh provision of Order XXXII, Rule 7(1A) laid down a detailed procedure. Before entering into compromise the leave of the Court is necessary which is lacking in the matter. The compromise decree was passed without protecting the interest of minors and they were deprived from the valuable properties owned by their late father"
' It is clear from the above that before entering into a compromise, petitioners' mother was required to obtain permission from the Guardian Court which had not been obtained by her, therefore, that was not a valid compromise and petitioners were not bound by the same.
19. Even otherwise, it was the duty of the Court to see whether the interest of minor was properly safeguarded by the compromise. In the case in hand the interest of the minors was not protected and they were deprived of their right to claim maintenance from their father on the basis of their custody being handed over to the mother.
20. In view of what has been discussed above, this writ petition is allowed, the impugned judgments and decrees dated 12.10.2009 and 18.11.2009 are hereby set aside. Resultantly, the suit filed by the -petitioners for recovery of maintenance allowance, shall be deemed to be pending before the learned Judge Family Court, Faisalabad which shall be decided by the learned Judge FamiIy Court concerned within the statutory period without fail.