' MIRZA VIQAS RAUF, J.--- Through instant petition, the petitioner has challenged the judgment and decree dated 8th of February, 2012 passed by the learned Additional District Judge, Lahore, whereby the appeal filed by the petitioner against the judgment and decree dated 27th of March, 2010 passed by the learned Judge Family Court, Lahore, has been dismissed.
2. Precisely the facts necessary for adjudication of instant petition are that the petitioner filed a suit for restitution of conjugal rights against the respondent No,1 before the learned Judge Family Court, Lahore. The respondents Nos.1 to 3 also filed a suit for recovery of maintenance against the petitioner before the same court. The suits were resisted by both the parties and they filed their respective written statements. The learned Judge Family Court, during the proceedings, consolidated both the said suits and started proceedings by treating the petitioner as plaintiff and respondents Nos.1 to 3 as defendants. From the divergent pleadings of the parties, the learned Judge Family Court framed the following issues:- ISSUES
(1) Whether the defendant is living apart from the plaintiff without any lawful justification? OPP
(2) Whether the suit for conjugal rights of the plaintiff is liable to be dismissed? OPD
(3) Whether the plaintiff is entitled for the maintenance if so, from what date and from which period? OPP
(4) Whether the plaintiffs Nos.2 and 3 are entitled for the maintenance from the period and from the date as claimed? OPP
(5) Relief?
3. After framing of the issues, the parties were directed to produce their evidence. In this context, the peitioner himself appeared as PW1 and he submitted his affidavit as Exhibit-P1 Dr. Muhammad Sarwar was examined as PW2 who also tendered his affidavit as Exhibit-PC. One Waseem Shaukat was examined as PW3 who filed his affidavit as Exhibit-PII. Sabir Hussain was also examined as PWIII who filed his affidavit as Exhibit-PIII. In documentary evidence, Nikahnama was tendered as Exhibit-P2, certificate as Exhibit-P3, receipt as Exhibit-P4, receipts as Exhibit-P5 to Exhibit-P12, account statement as Mark-A and claim voucher as Mark-B. On the other hand, the respondents Nos.1 to 3 examined Qazi Suleman Majeed as DW 1 who tendered his affidavit as Exhibit-D1 whereas Qazi Abdul Majeed appeared as DW2 who submitted his affidavit as Exhibit-D2. The respondent No,1 herself appeared as DW3 who placed her affidavit and bill of hospital as Exhibit-D3/1 to Exhibit- D3/4. Upon completion of evidence from both the sides, the learned Judge Family Court vide its judgment dated 27th of March, 2010, decreed the suit of conjugal rights subject to the providing separate accommodation to the respondent No,1 whereas the suit for maintenance was also decreed in the following manner:--- "1. The maintenance of defendant No,1 is fixed at the rate of Rs,3,000 per month from January 2006, till rejoining the defendant, or completion of Iddat period in case of divorce.
2. The maintenance of defendant No,2 is fixed at the rate of Rs,7,000 per month from January 2006, till her marriage.
3. The maintenance of defendant No,3 is fixed at the rate of Rs,7,000 per month from 11-9-2006, till his majority.
The maintenance of defendants Nos.2 and 3 shall increase by 25% per annum from the date of this order."
4. The petitioner, feeling, aggrieved from the judgment the learned Judge Family Court preferred an appeal before the learned District Judge, Lahore which was consequently entrusted to the learned Additional District Judge, Lahore. The appeal was resultantly dismissed vide judgment and decree dated 8th of February, 2012.
5. Learned counsel for the petitioner contended that while passing the conditional decree for restoration of conjugal rights, the learned Judge Family Court has erred in law and the said findings have been upheld in an illegal and unlawful manner. He maintained that the judgments of both the courts below are the result of misreading and non-reading of evidence and the respondent No,1 was not entitled to any maintenance in view of decree for restitution of conjugal rights. Learned counsel further contended that the maintenance of the minors was also fixed at an exorbitant rate and while fixing the same, sources of income of the petitioner were not at all taken into consideration by both the courts below. In support of his contentions, the learned counsel relied upon the cases of "Rawer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others"
(PLD 2009 Supreme Court 760), "Muhammad Younas v. Additional District Judge Pasrur and 2 others" (PLD 2011 Lahore 493) and "Rana Muhammad Ashraf v. Tanveer Kausar and others" (2011 CLC 1999).
6. Conversely, learned counsel for the respondents Nos.1 to 3 submitted that there are concurrent findings against the petitioner which cannot be challenged through writ jurisdiction. He further added that the learned Additional District Judge has rightly dismissed the appeal filed by the petitioner and there is no misreading or non-reading of evidence. Learned counsel argued that it is established on the record that minors are studying in a well reputed educational institution and to meet their educational as well as other expenses, the learned courts below have rightly fixed the maintenance at the rate of Rs,7,000 per month.
7. I have heard the learned counsel for the parties and perused the record.
8. In order to prove the claim of maintenance, the respondent No,1 herself appeared as DW3 and also submitted her affidavit wherein she reiterated the claim as contained in the plaint. In addition to her evidence, she also examined Qazi Suleman Majeed as DW1 and Qazi Abdul Majeed as DW2 who fully corroborated the statement of the respondent No, 1 . It has come in the evidence of the petitioner that he is a professional engineer and being so he remained employee in multinational companies like Macdonald of Pakistan as Project Manager. He also remained in job in UAE where he was earning a handsome amount an account of salary. He has also admitted in the evidence that currently he is working with Izhar (Pvt.) Limited and drawing monthly salary of Rs,47,750 as net amount. He stated that he is regularly paying, Rs,8,000 per month on account of maintenance allowance to the minor children. It is also admitted by the petitioner that on account of house maintenance, he is paying Rs,30,000 per month. Keeping in view the financial status of the petitioner and the evidence available on the record, the learned Judge Family Court fixed the maintenance of the respondents Nos.1 to 3 as detailed above. The learned Judge Family Court while fixing the maintenance of the respondents Nos.1 to 3 held that they are also entitled to receive the same at the annual increase at the rate of 25% from the date of order.
9. The petitioner though challenged the findings of the learned Judge Family Court before the learned Additional District Judge by filing, an appeal but the learned Additional District Judge after properly appraising the evidence arrived at the conclusion that the learned Judge Family Court has rightly decreed the suit qua the maintenance. While maintaining the judgment of the learned Judge Family Court, the learned Additional District Judge has elaborately discussed the material pieces of evidence which are even depicted in the impugned judgment.
10. In view of well-reasoned judgments of both the courts below which are fully supported by the evidence available on the record, I do not see any reason to interfere with the concurrent findings arrived by both the courts below. The judgments under challenge are even otherwise are clearly the outcome of proper appraisal of evidence. This Court always exercises restraint, while interfering with the concurrent findings. The writ jurisdiction cannot be exercised only for the purpose to substitute the view already taken by both the courts below after properly appraising the evidence, unless some illegality or misreading is pointed out in the judgments of both the courts below.
11. While observing so, I however do find weight in the contentions of the learned counsel for the petitioner, regarding fixation of annual increase at the rate of 25% with regard to the award of maintenance. The annual increase at the said rate is not supported by any reasoning and both the courts below have failed to give any justification to this effect. So while relying upon the judgment of the Honourable Supreme Court of Pakistan in the case of "Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others" (PLD 2009 Supreme Court 760), the judgments of both the courts below to the extent of award of 25% increase in the maintenance allowance of the minors have been declared illegal and unlawful. The said quantum is reduced to 5% annual increase in the allowance. The instant petition is partly allowed in the above terms with no order as to costs.