Raja Saeed Akram Khan, J.-- The titled appeal by leave of the Court has been filed against the judgment and decree of the Shariat Court dated 18th April, 2016, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The facts as emerged from this appeal are that the plaintiff-respondent No.1, herein, filed a suit for recovery of maintenance allowance against the defendant-appellant, herein, in the Court of Judge Family Court, Kotli, on 10.02.2012. It was averred in the plaint that Nikah was solemnized on 02.04.2000. Out of the wedlock, two daughters and a son were born. The defendant-appellant is not maintaining the plaintiffs. The children are studying in the school and their tuition fee is regularly being paid by the plaintiff-respondent. The expenditures of the children come to Rs.14000/- per month. The plaintiff-respondent is bearing all the expenses of minors herself through private jobs for last five years. She prayed that she has no other source of income; therefore, maintenance may be given to her at the rate of Rs.5000/- per month, while the minors be given the maintenance allowance at the rate of Rs.3000/- each, per month. The suit was resisted by the defendant-appellant by filing written statement. The learned trial Court after necessary proceedings decreed the suit for recovery of maintenance allowance to the extent of respondents No.2 to 4, herein, at the rate of Rs.2500/- each per month from February, 2010, vide its judgment and decree dated 23.04.2014. Feeling aggrieved, the defendant- appellant filed an appeal before the learned Shariat Court. The learned Shariat Court vide impugned judgment and decree dated 18.04.2016, dismissed the appeal, hence, this appeal by leave of the Court.
3. Mr. Muhammad Zubair Raja, Advocate, the learned counsel for the appellant argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that both the Courts below failed to appreciate the evidence brought on record in a legal manner, therefore, the impugned judgments are based on misreading and non-reading of evidence. He submitted that the appellant is unable to pay Rs.2500/- per month to each of the minors, but the trial Court passed the decree without taking into account the financial position of the appellant and the learned Shariat Court has also not considered this aspect of the case. The learned counsel forcefully argued that the plaintiff-respondents have not specifically alleged the date from which they claimed the maintenance charges, but this aspect of the case escaped the notice of the Courts below. He prayed for setting aside the judgments/decrees of the Courts below.
4. On the other hand, Mr. Arshad Mehmood Malik, Advocate, the learned counsel for the respondents strongly controverted the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He contended that there are concurrent findings recorded by the Courts below which cannot be disturbed as the appellant failed to point out any misreading or non-reading of the evidence. He drew the attention of this Court towards the written statement filed by the appellant in the trial Court and submitted that the appellant is owner of a house and a taxi car, thus, it is established that the appellant has good financial position. He added that the appellant is legally bound to maintain the minor children being father, moreover, the trial Court has already taken the lenient view while awarding the maintenance allowance to the minors at the rate of Rs.2500/- each per month. He prayed for dismissal of appeal.
5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The record reveals that the respondents, herein, filed suit for recovery of maintenance allowance against the appellant on 10.02.2012. A suit for dissolution of marriage was also filed by respondent No.1, herein, against the appellant. The trial Court decreed the suit for recovery of maintenance allowance to the extent of respondents No.2 to 4 herein (minors), and dismissed the suit to the extent of respondent No.1, herein, on the ground that the other suit filed by respondent No.1, herein, for dissolution of marriage has been decreed, moreover, respondent No.1, failed to prove the case to her extent. The trial Court awarded the maintenance allowance to the minors at the rate of Rs.2500/- from February, 2010 onwards. The main points agitated by the learned counsel for the appellant before this Court are that; (i) the suit was filed in year 2012 and respondent No.1, while filing suit has not specifically mentioned that when she was dislocated by the appellant from his house or from which date the respondents are entitled to get the maintenance allowance. In such situation, the trial Court was not justified to pass the decree for recovery of maintenance allowance from February, 2010; and (ii) the appellant is a poor person, therefore, he is unable to pay such a huge amount, i.e. 2500/- per month to the each minor, but the Courts below have not considered the financial position of the appellant while handing down the impugned judgments.
6. To appreciate the first point, we have examined the record. The perusal of the plaint filed on 10.02.2012, transpires that no date, month or year of dislocation from the house of appellant has been mentioned by respondent No.1. Furthermore, no prayer was made that from which date or month the plaintiffs are entitled to get the maintenance allowance. In ground No.7 of the plaint, it has been mentioned that the plaintiff is bearing the expenses of the minors through private jobs for the last five years. The statement of the plaintiff-respondent No.1, was recorded on 26.07.2012, wherein she stated that for the last two years she is living with her parents who are bearing the expenses of respondent No.1 along with the minors. It is evident that this part of the statement of the plaintiff has not been cross-examined by the defendant's side. It is settled law that the portion of the statement of a witness which goes against the other party if not cross-examined is deemed admitted.
Even one of the witnesses of the appellant, herein, namely, Atlas while recording his statement has deposed that:- {{URDU TEXT}} The appellant, herein, while recording his statement has stated that the separation was taken place in the year 2011. The appellant has also not brought on record any evidence to strengthen his version. In such state of affairs, keeping in view, the material available on record, in our view the trial Court has not committed any illegality while awarding the maintenance allowance to the minors from February, 2010 especially when the appellant failed to bring on record any solid evidence in rebuttal.
7. The other point agitated by the learned counsel for the appellant that the trial Court without taking into consideration the financial position of the appellant awarded the huge amount of maintenance, has also no substance. In our estimation, in the prevailing circumstances Rs.2500/- per month for a minor is not a huge amount rather due to inflation it is difficult to maintain a child in such a meagre amount. We agree with the learned counsel for the respondents that the trial Court has already taken the lenient view while awarding the maintenance allowance. It is also evident from the record that the minors are studying in different private institutions. Thus, we are of the view, that both the Courts below while passing the impugned judgments have rightly scanned the evidence available on record and have not committed any misreading or non-reading of evidence which is pre-requisite to interfere with the findings concurrently recorded by the Courts below.
In the light of above discussion, we do not find any substance in this appeal; therefore, the same is dismissed with no order as to costs.