MUZAMIL AKHTAR SHABIR, J.----Through this constitutional petition, petitioner has called in question order dated 13.02.2019 passed by respondent No. 1/Judge Family Court, Muzaffargarh whereby while striking off the defence of petitioner, the suit for recovery of maintenance allowance, filed by respondents Nos.2 to 6 has been decreed in favour of minors/respondents Nos.3 to 6 "the respondents" under section 17-A of the Family Court Act, 1964 ("Act") at the rate of Rs.2500/- per month each from the date of institution of suit till their legal entitlement with 10% annual increase from January, 2020.
2. The learned counsel for the petitioner states that the petitioner had deposited the entire amount of interim maintenance allowance of the respondents and is ready to pay any shortfall in the interim maintenance allowance; therefore, the learned trial court was not justified to strike off his defence and decree the suit. Further states that the learned trial court also did not keep into consideration the financial status of the petitioner while passing the impugned order and decreeing the suit by fixing Rs.2500/- per month per head for the minors, therefore. the same is liable to be set aside.
3. It is observed that the learned trial court through order dated 10.09.2018 fixed the interim maintenance allowance of the minor respondents at the rate of Rs.1000/- per head, per month. The petitioner was required to comply with the said order but he skipped making payment of monthly interim maintenance allowance within time and also failed to pay the same on 30.1.2019 and 13.2.2019 despite the fact that the petitioner was clearly warned by the trial court that in case of non-compliance of court's order regarding payment of interim maintenance allowance, his defence shall stand closed and proceedings under section 17-A of the Act would be initiated against him; whereafter, the learned trial court struck off the defence of the petitioner and decreed the suit in favour of the respondents at the rate of Rs.2500/- per month each from the date of institution of the suit and till their legal entitlement with 10% annual increase from January, 2020.
4. Although the petitioner's claim is that most of the payment has been made and he is ready to make the remaining outstanding payment, if any, but as per provision of Section 17-A of the Act, the petitioner was required to make payment of interim maintenance allowance for each and every month within time whereas he skipped the same and also despite warning did not make payment on 30.1.2019 and 13.02.2019; consequently, the default in making the payment of interim maintenance allowance took place..
5. The learned counsel for the petitioner has argued that even if it be presumed that the order has not been complied with in time, he was still ready to make the said payment and the court should have taken a lenient view and allowed the petitioner to continue to defend the case as no useful purpose would be served by passing a decree beyond his financial resources and initiating recovery proceedings. It is also argued that section 17-A of the Act provides that the Court may pass order of closure of evidence which is only directory and not mandatory.' Reliance in this behalf has been placed by him on section 17-A of the Act which is reproduced below: "S. 17-A. Interim order for maintenance. --At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit. (emphasis supplied.)
6. Although the word "may" was used in Section 17-A of the Act,' as it was initially enacted but the word "may" has been substituted with word "shall" through amendment in the Family Courts (Amendment) Act, 2015 (XI of 2015) which is reproduced as under: "S. 17-A. Suit for maintenance.----(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fax interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.
(2) ...................
(a) ....................
(b) ..............................
(3) ...................
(4) ............................
(emphasis supplied)
7. The use of the word "shall" in the amended Section 17-A of the Act whereby the word "may" has been replaced, clarifies the intention of the legislation that in case of non-compliance of order for payment of interim maintenance allowance within time fixed by the law, not only the defence is, to be struck off but as a consequence thereof, the suit is to be decreed; therefore, the said provision is to be treated as mandatory in nature on the basis of the principles laid down in The Collector of Sales Tax, Gujranwala v. Super Asia Muhammad Din & Sons (2017 SCM R 1427), of course, subject to certain exceptions to be decided on case to case basis, whereas no such exception has been pointed out by the petitioner.
8. It is settled by now that where the law requires the thing to be done in a particular manner it should be done in that manner alone and such dictate of law cannot be termed as a mere technicality and would be non-compliance of the legislative intent. Reliance in this behalf is placed on Mst. Shahida Bibi and others v. Habib Bank Ltd. and others (PLD 2016 SC 995) and Zia ur Rehman v. Syed Ahmad Hassan (2014 SCM R 1015); therefore, by non-compliance of making payment within time as required by the law, the default had been committed and the court below was justified to strike off the defence of the petitioner and has rightly decreed the suit.
9. As regarding the quantum of maintenance allowance, nothing is available on record to show that what is the financial status of the petitioner, therefore, the learned trial court was justified to take into consideration the contents of plaint and material/documents available on record while decreeing the suit for maintenance allowance of minors at the rate of Rs.2500/- per month each which amount is neither excessive nor exorbitant or shown, as per available record, to be beyond the payment capacity of the petitioner; besides, the fixation of maintenance allowance is a finding of fact which cannot be substituted in constitutional jurisdiction of this Court unless the same is found to be perverse, based on erroneous exercise of jurisdiction or based on F misreading or non- reading of evidence available on the record and no such defect has been pointed out in the impugned order passed by the learned trial court.
10. In view of what has been discussed above, there is no ground to interfere in the well-founded finding of fact recorded by the learned trial court fixing the maintenance allowance of the minors at the rate of Rs.2500/- per month each. Even otherwise, against the order of maintenance allowance at the rate of Rs.2500/- per month, appeal does not lie and the constitutional petition can only be entertained in case any of any illegality perversity or erroneous exercise of jurisdiction is pointed out in the order which has not been done in the well-founded impugned order passed by the learned trial court; consequently, this petition being devoid of merit is dismissed.