' JAWAD HASSAN, J.---Through this constitutional petition, the Petitioner has called in question judgment dated 12.12.2011, passed by the learned Additional District Judge, Gujranwala whereby he dismissed the appeal filed by the Petitioner against order dated 29.09.2011 passed by the Senior Civil Judge, Gujranwala, whereby he dismissed the application filed by the Petitioner for cancellation of order dated 18.05.2011.
2. Brief facts for the disposal of this constitutional petition are that the Respondents filed two separate suits, one for recovery of maintenance allowance and the other for recovery of dowry articles, whereas the Petitioner filed a petition for custody of minors before the learned trial Court.
Both the suits and petition for custody of minors were contested by the parties issues were framed and both the parties produced their respective evidence. Consequently, learned trial Court vide judgment dated 06.06.2008 decreed the suits for recovery of maintenance allowance as well as return of dowry articles in favour of Respondents Nos.1 to 4, whereas application for custody of minors was dismissed.
3. Subsequently, on 19.02.2010, the Respondents Nos.1 to 4 filed execution petition along with an application for enhancement of maintenance allowance, but during the pendency of the same, the Petitioner absented himself and was proceeded against ex-parte. Learned Trial Court vide order dated 18.05.2011, accepted the application for enhancement of maintenance allowance and fixed the same as Rs,4000/- per head, per month from 19.02.2010 with 10% annual increase. Regarding dowry articles, the matter was settled on oath of "Holy Quran". Thereafter, on 07.09.2011, the Petitioner filed an application before the learned trial Court for setting aside ex parte proceedings and order dated 18.05.2011, which was dismissed vide the impugned order dated 29.09.2011. The Petitioner assailed the said order dated 29.09.2011 before the learned Additional District Judge, Gujranwala by preferring an appeal, which was also dismissed vide the impugned judgment dated 12.12.2011. Hence this constitutional petition.
4. Learned counsel for the Petitioner has argued that the impugned order/ judgment are liable to be set aside and the Petitioner may be afforded opportunity of hearing as the matters should be decided on merits and not on technicalities; that the matter may be remanded for decision afresh; that the learned Executing Court was not justified in enhancing the maintenance allowance of Respondents, therefore, the impugned order is not sustainable in the eye of law and the judgment of the Appellate Court who has affirmed the said finding of learned Executing Court is also liable to be set aside. In support of his contentions he has placed reliance upon Ijaz Ahmed v. Judge. Family Court and 5 others (2005 CLC 1913). He further argued that Executing Court could not go beyond the decree. When the decree had attained finality, it had got to be executed even if it was erroneously passed. The Executing Court could not rectify any mistake in decree which would tantamount to going behind the decree. In support of above contention, he has placed reliance upon Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department (2002 SCM R 122).
5. The learned counsel for the Respondents has argued that the impugned order and judgment has rightly been passed by both the Courts below and there is no illegality or perversity in the same; that there are concurrent finding of the Courts below as such this Court cannot interfere in the same; that the Respondent No,1 had filed application for enhancement of maintenance allowance before the Family Court, not the Executing Court; that the conduct of the Petitioner is to be taken into consideration while dealing with the instant case as he remained reluctant to participate in the proceedings, therefore, the instant petition is liable to be dismissed.
6. Arguments heard and record of the case has been examined.
7. Through this petition the Petitioner has made prayer that order dated 29.09.2011 and judgment dated 12.12.2011 of both the Courts below be set aside and the matter may be remitted back to trial Court for decision afresh after giving full opportunity of hearing to the petitioner. Record reveals that after the decree of suits for maintenance and return of dowry articles, filed by the Respondent Nos.1 to 4 vide judgment and decree dated 06.06.2008, an application for enhancement of maintenance allowance of the minors were moved by the Respondent No,1 before the Family Court.
The execution proceedings were also in progress on the judgment and decree dated 06.06.2008.
During the pendency of the application for enhancement of maintenance allowance the Petitioner firstly appeared and filed reply to the application and then was proceeded ex parte and after the decision of the enhancement application the Petitioner filed application for cancellation of order dated 18.05.2011 which was dismissed vide the impugned order dated 29.09.2011. The Petitioner preferred appeal there against which also met to the same fate vide impugned judgment dated 12.12.2011.
8. The bare perusal of impugned order dated 29.09.2011 explicitly shows that the Petitioner was proceeded against ex parte after affording him colossal opportunity and further he filed application for cancellation of order dated 18.05.2011 after about four months which shows his lack of interest. The said order also depicts that the Petitioner has also filed an application for installments to satisfy the decretal amount which shows that he is ready to pay the decretal amount and failed to submit any plausible explanation for cancellation of order dated 18.05.2011.
The Appellate Court also dismissed the appeal of the Petitioner being meritless. I see no reason to disbelieve both the impugned order and judgment by the Courts below which have been passed keeping in view the facts and circumstances of the case coupled with the conduct of the Petitioner and therefore, do not call for interference under the Constitutional jurisdiction of this Court.
Furthermore, there are concurrent findings of both the Courts below and this Court does not inclined to interfere in the same as the Petitioner has failed to show any illegality, perversity or jurisdictional error in the impugned order and judgment. Reliance in this regard can be made on the case titled Abdul Wahab v. Mst. Sadia and 2 others (2011 YLR 2550) wherein it was held as follows:-- "Judgments and decrees of both the courts below not suffering from any illegality, irregularity, misreading and non-reading or jurisdictional error, were maintained, in circumstances. The High Court had no jurisdiction to substitute its own findings to the findings of the Tribunals below in Constitutional jurisdiction. Hence, the constitutional petition was dismissed."
9. So far as the contention of the learned counsel for the Petitioner that the Executing Court could not amend the judgment and decree by allowing application for enhancement of the maintenance allowance is concerned, in this regard it is stated that although the order dated 18.05.2011 shows the headnote of the same as "EXECUTION PETITION" but the bare perusal of the headnote of application for enhancement of maintenance allowance filed by the Respondents No,1 vividly reflects that the same has been filed before the Judge of Family Court, Gujranwala, not the Executing Court. Therefore, the mere writing "Execution Petition" on the headnote of order dated 18.05.2011 which was specifically passed on the application for enhancement of maintenance allowance filed by the Respondent No,1 before the Family Court cannot defeat the rights of the Respondent No,1 in any manner. Furthermore, the reply to the said application filed by the Petitioner also shows to be filed before the Judge Family Court, Gujranwala. The Family Court has exclusive jurisdiction to pass an order on the application for enhancement of the maintenance allowance even after passing the final judgment and decree. Reliance in this regard can be placed on the recent case titled Lt. Col. Nasir Malik v. Additional District Judge, Lahore (2016 SCM R 1821) in which the Hon'ble Supreme Court of Pakistan held as follows:-- "Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S.151, C.P.C.) and if necessary make alteration in the rate of maintenance allowance".
10. In view of what has been discussed above, the instant petition merits dismissal and the same is hereby dismissed.