' MUHAMMAD FARRUKH IRFAN KHAN, J.---Briefly the facts of the case are that respondents Nos.1 and 2/minors through their mother filed a suit for recovery of maintenance allowance against the petitioner Who contested the same by filing written statement. Out of divergent pleadings of the parties, the learned Judge Family Court framed necessary issues, recorded evidence of the parties and vide impugned judgment dated 18.07.2009 decreed the suit in the following terms:-- "In peroration of my findings on issue the suit of the plaintiffs is hereby decreed and plaintiffs are entitled to recover maintenance allowance @ Rs,5000/- per month per head as maintenance allowance since 1st September, 2008 till they are legally entitled Similarly, Rs,10,000/- per month for medical treatment for plaintiff No,2 Zainb Nadeem is hereby decreed from the period stated above till she fully recovered. There will increase of 20% per annum in the maintenance allowance as well as in the expenses of medical treatment from September, 2009."
3. Being aggrieved the petitioner filed appeal before the learned Addl. District Judge, who while dismissing appeal of the petitioner vide impugned judgment dated 05.12.2009 increased the quantum of maintenance allowance of the minors/respondents from Rs,5,000/- per month per head to Rs,10,000/- per month per head. Hence, this writ petition.
4. Learned counsel for the petitioner submits that the learned Appellate Court has gone beyond its jurisdiction while increasing maintenance allowance of the respondents of its own. He emphatically argued that respondents did not challenge the findings of the learned Judge Family Court either through appeal or cross-objections as such findings of the Family Court to their extent had attained finality and the learned Appellate Court was not vested with any power to increase the quantum of maintenance allowance suo motu on appeal of the petitioner. Relies on Mateen Haider v. Additional District Judge, Lahore and others (2005 SCM R 1683) and Muhammad Nazir Khan v. Ahmad and 2 others (2008 SCM R 521). Adds that the learned Appellate Court did not consider the financial status of the petitioner while increasing maintenance allowance of the minors; that the petitioner has limited source of income out of which he has to maintain his second wife and children as well, therefore, he is unable to pay the maintenance allowance to the respondents at the enhanced rate fixed by the learned Appellate Court. He next argued that there is no provision in the West Pakistan Family Courts Act, 1964 empowering the Family Court to pass a decree of automatic annual increase; that the judgments and decrees of both the courts below are harsh and liable to be modified in accordance with the financial status of the petitioner.
6. Conversely, learned counsel for the respondents while referring to Rule 33 of Order XLI of C.P.C.
Argued that the Appellate Court is fully competent to pass/modify a decree in favour of a non- appealing party. In order to justify the act of the respondents for not challenging the decree of the Family Court, the learned counsel submitted that the minors are being looked after by their mother; that one of the minors namely Zainb Nadeem is a patient of cancer and the respondent mother has to look after them of her own; that it is male dominant society and not very easy for a woman to fight for her right in the courts; that the minors are getting education in a renowned school of system where only their monthly tuition fee is Rs,6800/-, therefore, it almost impossible to maintain the minors with the maintenance allowance awarded by the Family Court, therefore, the learned Appellate Court has rightly increased quantum of maintenance allowance of the minors; that the petitioner is settled abroad where his monthly income is more than Rs,2,00,000/- and he can easily pay maintenance to the minors at the rate fixed by the learned Appellate Court; that the petitioner has not made increase in the maintenance of the minors according to the decree of the learned Appellate Court and at present an amount of Rs,10,54,000/- is outstanding against him; that the person who did not comply with the orders of the Court is not entitled for discretionary relief from this Court.
7. I have heard the arguments of the learned counsel for the parties and gone through the record.
8. First of all I would like to dilate upon the issue whether the Appellate Court could increase quantum of maintenance allowance of the respondents/minors in the absence of their appeal against the decree of the Family Court. In this context Rule 33 of Order XLI of C.P.C. Is very much relevant which reads as under:-- "Power of Court of Appeal.---The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercisea in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection."
9. The aforesaid provision of law came up for consideration before the Hon'ble Apex Court in the case reported as Messrs S.M. Yusuf and Bros. v. Mirza Muhammad Mehdi Pooya (PLD 1965 Supreme Court 15), and after considering the authorities cited at Bar the purpose underlying the above provision and its application to the various disputes were summarized by the Apex Court as under:-- "The term employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself restrain the Appellate Court's power. Here the whole decree was before the Appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule.
' We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi and Sons to examine the arguments there set out. Four precedent judgments are cited. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required to "adjust the right of the parties in accordance with justice, equity and good conscience" or where the failure to exercise the power "would lead to impossible, contradictory and unworkable orders". These particular considerations undoubtedly are circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as 'applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Shirazi (1) which clearly shows points of difference from the present case. The facts were of a much more complicated character than they are in this case and in the result of Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expressly dismissed by the trial Court, and he had not appealed against that decision. The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, Rule 33, C.P.C., was not intended to apply to such an appeal. "
10. It is thus abundantly clear that the Appellate Court is vested with wide power to pass any decree or order in favour or against a non-appealing party, within the framework of the suit.
11. Learned counsel for the petitioner urged that according to Section-17 of the West Pakistan Family Courts Act, 1964 provisions of C.P.C. And Qanun-e-Shahadat, Order, 1984 have been made inapplicable. No doubt according to the said barring clause provisions of C.P.C. Are not stricto sensu applicable in the family disputes but the Family Court is vested with power to adopt its own course provided such procedure is not against the principle of natural justice and offends any right of parties. Reliance is placed on case' reported as Farzana Rasool and 3 others v. Dr. Muhammad Bashirand others (2011 SCM R 1361), Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCM R 1365). Therefore, it can safely be concluded that in the family disputes powers of Appellate Court are wider than the ordinary Civil Appellate Court and in order to do complete justice it can mould/modify the relief in favour of non-appealing party.
12. Now the question before this Court is as to what were the circumstances in which the Appellate Court persuaded to grant relief in favour of a non-appealing party. I have minutely gone through the entire evidence. Some admitted facts of the case are that one of the minors namely Mst.
Zainab Nadeem is a patient of cancer and she is under treatment of Dr. Shahida Badshah at CMH Rawalpindi. The said minor is being transported to Rawalpindi on monthly basis. Both the minors are getting education in the Educators School of System where only monthly fee of each minor is Rs,3400/-. Besides this mother of the minors has to bear expenses of stationery, tuition fee and transportation etc. According to Section 368 of the Muhammadan Law by D.F. Mulla maintenance means and include food, clothing, lodging but the Hon'ble Supreme Court of Pakistan in case reported as Humayun Hassan -v. Arslan Humayun and another (PLD 2013 Supreme Court 557) has observed that said definition is neither conclusive nor exhaustive and laid down as under:-- "There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i,e, as per the personal law of the parties. In this context, according to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging. However, it may be observed that from the very language of above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social physical, mental growth, upbringing and wellbeing of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance, but obviously corresponding to and commensurating with the means and capacity of the father to pay."
13. In the light of the aforesaid observations of the Hon'ble Apex Court besides providing food and lodging it is also the duty of the father to provide the minors proper education, health facilities and other basic necessities of life. In this view of the matter, maintenance allowance of the minors fixed by the learned Judge Family Court at the rate of Rs,5,000/- per month per head was insufficient to fulfill basic needs of the minors, therefore, in the existing circumstances and keeping in view the fact that one of the minors is a cancer patient the learned Appellate Court was fully justified in exercising its discretion for increasing quantum of maintenance allowance of the minors without their appeal.
14. Now coming to the question whether the petitioner is in a position to pay the maintenance to the minors at the rate fixed by the learned Appellate Court. From the available record it is evident that the petitioner is settled in Saudi Arabia. The stance of the respondents was that his monthly salary was Rs,2,00,000/- which fact was evasively denied by the petitioner in his written statement and he even did not disclose his actual income. However, his special attorney while appearing in the witness box as DW1 stated that the petitioner earns 2000 Saudi Riyals but he failed to produce any documentary proof in this regard. Although along with this writ petition the petitioner has annexed a certificate duly attested by Consulate General of Pakistan Jeddah but this document itself negates oral stance of DW1 as according to its monthly salary of the petitioner is SR 3,330/-. If the said certificate is admitted to be correct in its totality even then according to it the monthly salary of the petitioner in Pakistani currency was about Rs,1,00,000/- in the year 2009, therefore, quantum of maintenance allowance fixed by the learned Appellate Court cannot be held beyond financial capacity of the petitioner.
15. As far as objection of the learned counsel with regard to automatic annual increase is concerned, suffice it to say that no one can deny ever increasing prices of ordinary commodities in our country, therefore, in order to meet with the inflation exigencies, ever growing needs of the minors and to cater for the ever diminishing purchasing power of the rupee, the learned courts below have justifiably allowed annual increase of 20% which is in consonance with the inflation rate prevalent in our country as such this annual increase is justified.
16. Resultantly, no case of interference is made out, hence, this petition is hereby dismissed. No order as to costs.