' IQBAL HAMEEDUR RAHMAN, J. --- Through this petition for leave to appeal, the petitioner has called in question the order dated 30.03.2016 passed by the Lahore High Court, Lahore, in W. P. No, 7222/2016, whereby the said writ petition filed by the petitioner has been dismissed in limine 2.The concise facts giving rise to the instant petition are that minors respondents No, 3 & 4 (hereinafter to be referred as "the respondents") filed a suit for recovery of maintenance allowance in the year 2008 which was decreed by the Family Court vide. order dated 24.02.2010 and they were held entitled to maintenance allowance @ Rs, 8,000/-per month each w.e.f, June, 2007. The maintenance allowanced was allowed to respondent No, 3 till he attains the age of majority and to respondent No, 4 till she is married, alongwith 10% annual increase. Against the said order, the petitioner preferred an appeal before the Appellate Court, which was dismissed vide judgment dated 25.02.2011. Thereafter, the respondents filed an application before the Family Court in the year 2012 and sought enhancement of their maintenance allowance on the ground that they are now grownups and studying in Beacon House School in class 5 and 3 respectively and their actual average monthly expenditure on account of school fees, uniform, Qari sahib fee, transport, foods and other necessities, etc. are higher than the maintenance allowance due to rise in inflation. It was further asserted in the application that the petitioner is serving in the, Pakistan Army as a Major and is getting a salary of Rs, 81,311/- per month and he could easily afford the increase sought for by the respondents. In addition to the same the respondents also prayed in the application that a direction may be issued to the petitioner/judgment-debtor to pay balance decrial amount (arrears of maintenance allowance i,e,, Rs, 972,184/-) without further delay. Upon filing of the said application, summons were issued to the petitioner in accordance with law as well as through publication in the newspaper daily "Pakistan", but inspire of the same he did not appear.
Consequently, he was proceeded ex parte on 06.07.2014 and the learned Family Court after recording ex parte evidence of the respondent allowed the said application vide judgment dated 16.04.201,5 by holding as under:--- "7.Perusal of the record transpires that in support of her claim mother of the petitioners also produced pay slip of respondent/judgment-debtor as Ex.P-2 perusal of same transpires that it is written upon pay slip that gross salary/total pay and - allowance of respondent/judgment-debtor in 2014 is Rs, 1,13,442/-and after certain monthly deductions i,e, Rs, 32,538/- his net salary is Rs, 80,904/-. Record further demonstrates that mother of petitioners submitted fee slips of minors/petitioners as Ex.P-3 & Ex.PA which established that minors/petitioners are students of Beacon House School System and fee of two months of Matahat Nasir is Rs, 22,880/- and fee of two months of Wasim Malik is Rs, 24,240/-. Record demonstrates that previous decree was passed on 24.02.2010. ' Perusal of order/judgment and decree dated 24.02.2010 shows that maintenance allowance of minors was fixed @ Rs, 8,000/- per month per head with 10% annual enhancement.
Now the petitioners have come to this Court on the ground of raising inflation and prayed for enhancement of maintenance allowance as per present commodity ratio. Record further transpires that minors are school going children and it is legal as well as moral right of every minor/child that he be brought up in healthy atmosphere and be brought up with the feelings of self-respect alongwith educational necessities and it is duty of the father to brought up his children as per his financial status. I relied upon "2005 CLC 1913" it was held by the Worthy Appelire" Court that enhancement was granted upon the rising inflation, hence relying upon above citations and evidence produced by the petitioner, petitioner has successfully succeed to prove her contention through oral as well as documentary evidence. Hence maintenance allowance decreed in favour of petitioners No, 1 & 2 @ Rs, 8,000/- per month per head with 10% annual increase vide judgment and decree dated 24.02.2010 is hereby enhanced to the tune of Rs, 15,000/- per month per head with from filing of this petition till his attaining of age of majority of petitioner No, 1 and till her marriage of petitioner No, 2 with 10% annual enhancement. 10% enhancement shall be calculated after passage of one year of date of decision."
' Being aggrieved, the petitioner filed a time-barred appeal before the Appellate Court on 07.09.2015 on the ground that the respondents had fraudulently and unlawfully filed the application under Section 151, C.P.C. for enhancement of maintenance allowance without notice and knowledge of the petitioner during the pendency of W.P. No, 7517/2011, which was filed by him and pending adjudication before the High Court, as such enhancement could not be allowed by the Family Court. The said appeal was dismissed by the Appellate Court vide judgment and decree dated 21. of mother of the minors. It is also on the record that appellant also moved an application for setting aside ex parte to proceeding order which was dismissed due to non-prosecution.
9. Perusal of record also depicts that respondent Mianwali. The Tribunal after framing issues and recording evidence of the parties, accepted the Election Petition on the ground of concealment of asset. Appellant's election was declared void and fresh election in the constituency was ordered.
Being aggrieved by such decision the appellant filed the present appeal.
2.Learned counsel for the appellant Mr. Tariq Mehmood submitted that appellant's election was declared void on the ground that the appellant had concealed his ownership/interest in Koh-e- Noor Textile Cotton Mills though he was never an owner of the said mills. He submitted that the appellant is in the business of purchasing old machinery and equipment as Veil as the material of old buildings that are to be demolished. He further explained that apart from purchasing old machinery and equipment as well as the material of old buildings of the said mills, the appellant alongwith his other two partners entered into a contract with the owner of the said mills to launch a project on the land of the mills. The purpose of the project was to carve out plots and then sell them to the general public. He submitted, the appellant never become owner of the and of the Mills, he only made investment.
3.Learned counsel for the respondent No, 1, Dr. Babar Awan in rebuttal argued that there was sufficient evidence on record to establish that the appellant became owner of Koh-e-Noor Textile Cotton Mill which fact he ought to have declared in his nomination form but he concealed the same. Learned counsel referred to various documents on record to demonstrate that the appellant became one of the owners of Koh-e-Noor Textile Cotton Mills. He drew our attention to a complaint lodged by the appellant with DPO Sargodha wherein he alleged fraud on the part of one Ghulam Abbas Khan, who while acting as attorney of the original owner of the mills, Khaqan Hassan Najeeb, sold plots and misappropriated the sale proceeds that fell to the share of the appellant. He then took us to the F.I.R. that was 16dged pursuant to such complaint at Police Station N Area, District Sargodha under Section 406, PPC on 5.2.2012. He also referred to partnership agreement executed on 19.7.2001 among the appellant having 37.5% share and two other persons namely-.Javed lqbal having 25% share and Mian Munir Ahmed having 37.5% share.
' The partnership deed shows that three partners had agreed to make investment in the project mentioned above. The owner of the mills agreed to launch the project which was to be supervised by his nominee Ghularn Abbas Khan. He was made responsible to sell the plots and deposit the sale proceeds in bank which amount was then to be shared amongst all the stakeholders according to their respective shares. After sale of the plots, the appellant alleged misappropriation of his share on the part of Ghulam Abbas Khan, which led to filing of the complaint and F.I.R. No, 54 at Police Station N Area, Sargodha under Section 406, PPC on 5.2.2012.
4. It is an admitted position that title of Koh-e-Noor Textile Cotton Mills remained with Khaqan Hassan Najeeb till the finalization of the project. From the record of the criminal proceedings, it is evident that the appellant only alleged misappropriation of his share in the project that apparently remained unpaid. Thus the whole transaction with regard to the sale of the plots was nothing but an investment in a project, object of which was materialized when plots Were carved out, sold and transferred to the purchasers through execution of sale-deeds that wero executed by Ghulam Abbas Khan on the strength of power-of-attorney executed in his favour by Khaqan Hassan Najeeb. Hence, from the above, it is apparent that neither on or before 30.06.2013 the appellant became owner of Koh-e-Noor Textile Cotton Mills. The appellant only made an investment along with his two other partners in a project which came to an end with the sale of the plots and only for the misappropriation of appellant's share in the sale proceeds, criminal proceedings were initiated against Ghulam Abbas Khan. Had the project failed even then the appellant would not have' become owner in the land in question as in such eventuality also he would have only claimed return of his investment plus damages and nothing more. So the question of concealment of ownership in Koh-e-Noor Textile Cotton Mills does not arise. The finding of the Electic Tribunal in these circumstances is not sustainable in law.
5. The above are the detailed reasons of our short order of even date whereby we allowed this appeal and set aside the impugned judgment.