' ZAFAR AHMED RAJPUT, J.---Through instant petition, the petitioner has impugned the judgment dated 24.3.2014, whereby the learned Vth, Additional District Judge, Karachi (South), while allowing Family Appeal No, 62 of 2012, filed by the petitioner, modified the judgment and decree dated 22.10.2012, passed by the learned XVth Civil and Family Judge, Karachi (South) in Family Suit No, 620 of 2011 (Re: Mst. Shamim Zakir and others v. Abdul Rasheed) and fixed Rs,5000/- per month as maintenance for each minor (respondents/plaintiffs Nos. 2, 3 and 4) instead of Rs,8000/- per month each, with annual increase at 10% per annum instead of 30%, with effect from 01.09.2010.
2. Briefly stated facts of the case are that the respondents Nos. 1 to 4/plaintiffs filed Family Suit No, 620/2011, alleging therein that the respondent/plaintiff No, 1 is the grand mother of minor respondents/ plaintiffs Nos. 2 to 4; her daughter Mst. Salma Akhter married to the petitioner/defendant on 10.09.1993 and out of said wedlock four children, namely, (1) Muhammad Wajahat aged 15 years, (2) Baby Tooba aged 13 years, (3) Baby Kinza aged 12 years and (4)
Muhammad Hussain, aged 4 years were born. It is averred that Mst. Salma Akhter died on 29.8.2010 due to cancer and at the time of her marriage, her father gifted out her a house bearing No, 169, Street No, 3, Data Nagar, Orangi Township, Karachi, adrneasuring 120 sq. Yds., and the petitioner/defendant has been collecting monthly rent thereof at the rate of Rs,7000/- per month since 1993 without giving a single paisa to her; besides, Mst. Salma Akhter had also been given dowry articles amounting to Rs,3,00,000/-. It is further averred that the petitioner/ defendant is a man of greedy nature and he never maintained deceased Salma Akhter and even sold out her jewelry amounting to Rs,5,00,000/- and so also failed to maintain his children. It is case of the respondent/plaintiff No, 1 that on 14.04.2009 the petitioner/defendant dropped the deceased Salma Akhter and all four children outside the main gate of her house in seriously ill condition and, thereafter, he never paid maintenance or borne medical expenses, though he is working as fireman at Karachi Port Trust and earning Rs,45,000/- per month towards his salary and also running an estate agency business in Federal "B" Area, Karachi from where he earns Rs,55,000/- per month, hence the respondents/plaintiffs filed the suit for recovery of dowry articles, dower amount, maintenance of children, medical expenses and property document of deceased Mst. Salma Akhter and for medical card facility of the minors.
3. The petitioner/defendant filed his written statement, wherein he denied the allegations set forth in the plaint. He has pleaded that his monthly salary is Rs,28,000/- and he had maintained deceased Mst. Salma Akhter and his children and borne their medical expenses. He claimed that the alleged house was purchased by him in the name of deceased Mst. Salma Akhter but now the respondent/plaintiff No, 1 is trying to usurp his house with illegal means. He further pleaded that he had already divorced deceased Salma Akhter and all the dowry articles were taken away by her and presently same are in the custody of respondent/plaintiff No,
1. He also pleaded that the respondent/plaintiff No,1 took away three children from his house when he was jobless in the year 2010 during Eid-ul-Azha, hence she is not entitled to any relief and the suit is; therefore, liable to be dismissed.
4. From the pleadings of the parties, the learned trial Court framed following issues for determination:--
1. Whether the suit filed by the plaintiff mother of deceased Salma Akhter is maintainable or not?
2. Whether plaintiffs are entitled for recovery of maintenance from the defendant, if yes, at what rate, for what period?
3. Whether the plaintiff No, 1 mother of deceased (Salma Akhter) is entitled for return of dowry articles from defendant? If yes, which articles?
4. Whether the plaintiff is entitled for the medical expenses from defendant?
5. What should the decree be?
5. At the trial, the respondent/plaintiff No, 1 led her evidence by filing affidavit-in-evidence and producing documents as Ex. P/1/1 to Ex.P/2/1/18. On the other hand, the petitioner/defendant's side neither cross-examined the respondent No, 1 nor even led his evideve. Thereafter, the learned trial Court, decreed the suit of the respondents/ plaintiffs vide judgment and decree dated 20.10.2012 to the extent of maintenance of three minors namely (1) Muhammad Wajahat, (2) Tooba Rasheed and (3) Kinza Rasheed at the rate of Rs,8000 per month for each child w.e.f, 01.09.2010 till the date of decree and in future till attaining the age of majority by the minors including marriage expenses of minors Baby Tooba and Baby Kinza, with increasing of 30% per annum.
6. The petitioner/defendant being aggrieved by the said judgment and decree preferred Family Appeal No, 62 of 2012 before the Sessions Judge, Karachi (South), which was heard and allowed by the learned Vth Additional District Judge, Karachi (South) vide judgment dated 24.03.2014, modifying the amount of maintenance of each minor from Rs,8000/- to Rs,5000/- and annual increase at the rate of 10% per annum from 30% per annum, whereas rest of the directions given in the judgment and decree by the trial Court were maintained. Against this judgment, the instant Constitutional Petition has been preferred by the petitioner/defendant.
7. Heard the learned counsel for the petitioner and the respondefit, and perused the material available on record.
8. The learned counsel for the petitioner has mainly contended that the learned Courts below failed to appreciate the fact that the petitioner is a poor fireman employed in KPT and has a sizable family to maintain and besides payment of Rs,15,000/- per month as maintenance to his three children living with their grand mother, he has to support also his second wife and three children.
The learned counsel has further contended that due to price hike it is very difficult for the petitioner to pay Rs,15,000/- per month towards maintenance to his three children and to support his second wife and three other children who are residing with him. He has also contended that the alleged house is in possession of the respondent/plaintiff No,1 and she is getting rent there from at the rate of Rs,12,000 per month from the residential portion and Rs,12,000 from three shops which is sufficient for the maintenance of three minors children and no further amount is required for the maintenance of said three minors from him, therefore, the judgments passed by the lower Courts below are liable to be set aside by this Court under its Constitutional jurisdiction, under Article 199 of the Constitution of Islamic Republic of Pakistan by fixing the maintenance of each child Rs,1500 per month from the date of filing of the suit and future maintenance @ Rs .2000 per months.
9. On the other hand, the counsel for the respondent/plaintiffs Nos. 1 to 4 has maintained that the judgment and decree passed by the learned trial court was subsequently modified by the Appellate Court though the respondents specifically pleaded in the suit that the petitioner/defendant has drawing monthly salary amounting to Rs .45,000 and also running an estate agency business from where he is earning Rs .55,000 per month, which contention of the respondents was denied by petitioner/defendant in his written statement but he neither cross- examined the respondent/plaintiff No,1 nor even led his own evidence and on his failure to do so, his side was closed, even no application was filed by the petitioner before the learned trial Court for recalling of order of closing his side for cross-examination and to lead evidence. Likewise, no documentary evidence was attached by him with his written statement, showing the fact that his monthly salary was Rs,28,000 only and despite such facts available on record, the Appellate Court modified the decree by reducing the amount of monthly maintenance and its annual increase. The counsel further maintained that the petitioner being father of the minor respondents is responsible for their maintenance and he cannot claim any right in the property of his deceased wife as he had already divorced her. He has also maintained that the petitioner is receiving the rental income of the house of deceased Mst. Salma Akhter himself.
10. I have given due considerations to the contentions of the learned counsel for the parties. It is an admitted position that the respondents Nos. 2 to 4, namely Muhammad Wajahat, Baby Tooba and Muhammad Hussain are the minor children of the petitioner and they are residing with respondent No, 1, who is their grand mother. It is also an admitted position that the petitioner neither cross- examined the respondent No, 1/ plaintiff nor even led his own evidence, even he did not attach any salary certificate with his written statement, denying the contentions of the respondents/plaintiffs that he was not receiving an amount of Rs,45,000/- towards his salary but Rs,28,000/- The contention of the petitioner to this effect was accepted by the learned Appellate Court while modifying the judgment and decree passed by the learned trial Court. Even the petitioner failed to attach any such salary certificate with the appeal as well as instant petition.
11. Powers of High Court in Constitutional jurisdiction are not analogous to those of an Appellate Court. High Court in its extraordinary jurisdiction can neither substitute finding of fact recorded by family Court nor give its opinion about adequacy or quality of evidence. Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can only be exercised if the lower Court has exceeded in its jurisdiction or acted without jurisdiction. When a Court possesses jurisdiction, finding of fact recorded by it cannot be disturbed merely on the ground that another view is possible on the same evidence unless that finding is based on no evidence, is fanciful or arbitrary.
12. Appraisal of evidence, assessm ent of its evidentiary value, drawing of inference therefrom and to determine the amount of maintenance is the function of the Family Court which is vested with exclusive jurisdiction to decide such matters. In exercise of extraordinary jurisdiction under Article 199 of the Constitution, this Court even cannot correct the errors of facts committed by the subordinate Court during proceeding of a Family Case, as for that purpose adequate mechanism has already been provided by relevant law by way of appeal, and that appropriate remedy has already been utilized by the petitioner and the learned appellate Court has reduced the amount of monthly maintenance for the minor respondents, the controversy must come to an end.
13. A perusal of impugned judgment shows that the findings are based on evidence and are also supported by plausible reasoning. No material piece of evidence appears to have been overlooked or misread. Keeping in view the prevailing cost of living; maintenance allowance of Rs,5,000/- per month for each minor child can hardly be deemed as exorbitant or excessive.
14. The arguments of the learned counsel for the petitioner has no force because in the instant case nothing is available on record to indicate as to what income was derived by the petitioner towards his salary being serving as foreman in KPT. It was his duty to have brought evidence that his monthly income is too meager to pay Rs,5,000/- to each minor respondent. In the instant case the quantum of maintenance has been modified and fixed by the learned Appellate Court. In my view the Appellate Court has correctly determined the maintenance amount and in exercise of its Constitutional jurisdiction, this Court will not be able to substitute its own findings even if another view on re-appraisal of evidence is possible.
15. The impugned judgment does not suffer from any jurisdictional infirmity; hence the instant petition being devoid of merit is dismissed.
16. Above are the reasons of my short order dated 30.11.2015, whereby instant Constitutional Petition was dismissed.