RASAAL HASAN SYED, J.---The petitioner , in this Constitutional Petition has impugned order dated 19.2.2019 of the learned Judge Family Court to the extent of direction for the payment of interim maintenance of respondents Nos,2 to 4.
2. Respondent No,1 along with her minor children (respondents Nos,2 to 4) filed a suit for recovery of maintenance allowance, dowry articles and dissolution of marriage, asserting therein that she was wedded to the petitioner in the year 2002, respondents Nos, 2 to 4 born out of the wedlock, the respondent No, 2 was aged 15 years, respondent No,3 aged 12 years and respondent No,4 was aged 9 years. The relations between the parties remained cordial for some time, whereafter the respondent No,1 was subjected to domestic violence and mental torture and that on 12.11.2018, an attempt was made to murder respondent No,1 and that in regard to the said occurrence FIR No, 141/2018 under section 324, P.P.C. was registered at Police Station Sarwar Road, Lahore Cantt. It was claimed that another FIR under sections, 13 and 20 of Punjab Arms Ordinance, 1965, was also registered against the petitioner . The respondents' case was that the minors were studying in Beacon House School System, Walton Campus, Lahore, who need maintenance for the payment of school fee and expenses related to education, food, medicine, clothing, pick and drop, etc. It was alleged that the petitioner was working as a Corporate Manager in "World Telecom" and was also doing his own trading business and that his monthly income was more than Rs, 4,00,000/- and therefore, he could pay Rs, 30,000/- per month to respondent No,1 and Rs, 60,000/- per month per child to respondents Nos, 2 to 4. A claim for the return of articles of dowry was also made.
3. It appears that the petitioner was proceeded against ex parte by the learned Judge Family Court vide order dated 17.1.2019. An application for setting aside of ex parte order dated 17.1.2019 was filed by the petitioner .
4. The learned Judge Family Court allowed the application and set aside the ex-parte proceeding order on 19.2.2019 subject to payment of Rs, 1,000/- as costs and at the same time, proceeded to pass an order for the payment of interim maintenance allowance of the minors at the rate of Rs, 30,000/- per month per child which was payable from the institution of suit till final disposal thereof. It was observed that any breach thereof would result in striking off the defence under section 17-A of Family Courts Act, 1964. Against this order the instant petition has been filed.
5. Learned counsel for the petitioner argued that the interim maintenance @ Rs, 30,000/- per month was highly exorbitant, devoid of support by any cogent evidence, in departure with the parameters of section 17-A of Family Courts Act, 1964 and that the petitioner was not financially in a position to pay maintenance @ Rs, 30,000/- per month per head and that he could only afford Rs, 10;000/- per month per child. Lastly it was argued that even the school fee has been reduced by 20% and therefore the amount of maintenance fixed by the court was uncalled for .
6. Learned counsel for the respondent who entered appearance in response to the notice, argued that the petitioner was working in "Warid Telecom" and his monthly earning was Rs,1,80,000/-. A reference was made to the copy of the petition under section 7 of the Guardians and Wards Act, 1890 which was filed by Asim Ali, the writ petitioner , wherein he had alleged in para 2 of the application as under: - "That the petitioner is serving as Corporate Manager , Warid Telecom and drawing a monthly salary of Rs,1,80,000/- and apart from other properties i,e, plot and two vehicles, living in House of 10-m arlas situated in Lahore Cantt, Lahore along with his minor sons, respondent No,2 and his mother who is in old age,"
Learned counsel continuing his submissions, argued that petitioner had business of import and export and other sources of income also and therefore, his grievance was not well-based. It was added that from the copies of the Beacon House School record in respect of monthly fee of each child, it was discern ible that the amount fixed by the learned Judge Family Court as interim maintenance was not unreasonable or exorbitant.
7. Faced with this situation, learned counsel for the petitioner argued that the petitioner was terminated by his Company vide letter dated October 14, 2016 " Annexure G " to the petition. The contents of this letter reveal that the petitioner was dismissed from service on the charges that he was found guilty of misconduct, involved in unethical business dealings, fraudulent activities, and financial embezzlement which resulted in financial losses to the company and jeopardized its reputation.
8. Learned counsel for the respondent submits that even thereafter the petitioner was doing his independent business from where he was earning more than Rs, 4,00,000/-. As regards the arguments qua the reduction of monthly school fee, learned counsel submitted that no such reduction was allowed nor any supporting evidence was ever produced.
9. Arguments from both sides have been considered with reference to the material annexed with this petition. It is observed that in the suit filed by the respondent, the petitioner was proceeded against ex parte vide order dated 07.1.2019. This was the first date after the institution of the suit and issuance of the summons as also the publication of notice. Obviously no written statement was filed at this stage. The petitioner moved an application to set aside the ex parte decree which application was allowed by the learned Judge Family Court vide order dated 19.2.2019. In this order it was observed that on the statement of learned counsel for the plaintif f the application for setting aside ex parte order dated 17.1.2019 was allowed subject to payment of Rs, 1,000/-as costs. In the latter part of the order , the learned Judge proceeded to fix the interim maintenance allowance of the minors I@ Rs, 30,000/- per month per head. The petitioner was required to pay Rs, 90,000/- per month for the three minors from the date of institution of suit till the final disposal thereof. At that point of time, the petitioner had not filed his written statement nor placed on record any evidence of his financial condition or any documentary evidence in support of the actual educational fee of the children. Being so the learned Judge Family Court appeared to have been persuaded by the application of the writ-petitioner which he had moved before the Guardian Court under section 7 of Guardians and Wards Act, 1890 and based on that document tentative assessment was made for interim maintenance @ Rs,30,000/- per month per child. The material from which the petitioner seeks support was never before the trial court at the time of passing of order for the interim maintenance and therefore, the learned Judge did not have the opportunity to examine the documents in defence for an appropriate order in respect of the interim maintenance.
10. Since the order is interim one and no appeal is permissible against it, therefore, no interference can be possibly made in the Constitutional jurisdiction. The legislature in its own wisdom did not provide for an appeal against the interim order for the payment of monthly maintenance during the suit, therefore, any indulgence in the writ jurisdiction will circumvent the intent of legislature which possibly cannot be countenanced. It is a settled law that ordinarily no interference be made in the writ jurisdiction against interlocutory orders unless the order on the face of it is without jurisdiction or otherwise ab initio void or is passed without legal competen ce. It is further observed that since the order is an interlocutory one, the petitioner on filing his written statement and placing the documentary evidence like letter of termination from service, the source of his income and latest bills of educational fee of children showing reduction in the monthly fee, if any, can request the court for appropriate orders in respect of the interim monthly maintenance of the children; and the learned Judge Family Court will not be denuded of its jurisdiction to take into consideration the respondent's view-point as also the documents in support thereof and if required or found necessary , can pass appropriate orders to meet the ends of justice regarding monthly maintenance of minors. It is a settled rule that an assessment which is tentative and provisional, can be regulated by the court by keeping in view the material which the parties respectively place on record.
11. The tentative assessment if finally varied does not amount to review of the order nor attract the principle of res judicata. In case of "Mst. Zohra Irshad and another v. Messrs S. K.&F . Company" (PLD 1981 SC 598) it was observed by the honourable Supreme Court to the effect that for the purposes of passing an order under subsection (6) of section 13 of the Ordinance a tentative view of the controverte d questions of fact is taken, a provisional determination of rent takes place and a regulatory order is passed. All this happens before the evidence is recorded even before the parties are heard on merits of their claim. Such a determination cannot have finality or a binding effect on the ultimate outcome nor can foreclose a decision after the evidence has been recorded and evaluated and therefore, the plea of res judicata in respect of such an order will be misconceived. In the instant case the tentative assessment was made by the court while passing the impugned order , which will not deprive the court of its jurisdiction to pass appropriate order after the evidence comes on record. The petitioner on bringing the relevant material in support of his defence can apply for an appropriate order in regard to the maintenance of the minors, which if applied will be dealt with by the learned Judge Family Court, in accordance with law to do substantial justice.
12. The writ petition is, therefore, F dismissed with the above observations.