Anwaar Hussain, J. Through the present petition, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has called into question the judgment dated 25.06.2024 passed by the Appellate Court below, whereby the appeals filed by respondent No.6, namely, Muhammad Kashif, as well as respondents No.3 to 5 ("the respondents"), were allowed and while adjudicating the application filed by respondent No.3, under Order I Rule 10 of the Code of Civil Procedure, 1908 ("CPC"), seeking to implead the petitioner as a party to the suit, the matter was remanded with the observation that respondent No.3 will file amended plaint after impleading the petitioner as defendant.
2. Learned counsel for the petitioner contends that the suit filed by respondent No.3, namely, Mst.
Shazia (mother of respondents No.4 and 5), did not array the petitioner as a party, and a judgment and decree dated 02.03.2024 was passed therein and upon passing of the said decree, respondent No.6 namely, Muhammad Kashif (the son of the petitioner and the father of respondents No.4 and 5) as well as the respondents preferred appeals, therefore, the matter requires to be finalized between respondent No. 6 and the respondents and the petitioner is unnecessary party as the petitioner had no nexus with the liability of his son, at least at the said stage of the proceedings and hence, the impugned judgment is legally flawed and unsustainable.
3. Conversely, learned counsel for the respondents has supported the impugned judgment and defended the order of remand.
4. Arguments heard. Record perused.
5. The issue that arises for determination is whether, at the stage of appeal, the paternal grandfather of the minors can be impleaded as a party to a suit for recovery of maintenance allowance?
6. Both sides have relied on paragraph 370 of Muhammadan Law by D.F. Mulla, which reads as under: "370. Maintenance of children and grandchildren. - (1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.
The petitioner's case is that the stage for shifting the burden of maintenance to him, being the paternal grandfather, has not yet arisen, particularly since the father of the minors is alive; is contesting the matter; and it is yet to be determined whether he does not have the requisite means to maintain his children. It is also contended that respondent No.3, the mother, has not established her financial incapacity. On the contrary, it is stance of the respondents that respondent No.3 has no property or income of her own, and since respondent No.6, the father of the minors, has himself stated on record that he is merely an employee, working under his father - the petitioner and does not possess any movable or immovable property, therefore, the Appellate Court below justly allowed the respondents to implead the petitioner as party in the suit.
7. It is a settled principle of law that the primary obligation to maintain minor children rests with their father. However, in cases where the father is unable to fulfill this obligation either due to financial incapacity or willful neglect, the responsibility may shift to the mother and, if she is also indigent, to the paternal grandfather. This principle is firmly established in Islamic jurisprudence and finds authoritative articulation in terms of paragraph 370 quoted hereinabove. In these circumstances, the respondents were justified in filing an application to implead the petitioner in terms of paragraph 370 referred above. When the father is not in easy circumstances and the mother lacks financial means, the obligation to maintain the minors may legally devolve upon the paternal grandfather. This legal proposition is well established and has been affirmed by the superior Courts in Pakistan. The Supreme Court in case titled Bashir Ahmad v. Addl. District Judge, Hafizabad and others (PLD 2024 SC 67) observed that in order to render grandfather liable to maintain his grandchildren, two conditions are sine qua non i.e. (i) the father of the child must be a poor person who has no financial resources to maintain that child, and (ii) the grandfather of the child must be a person who is financially in easy circumstances. The case involved a situation where a decree for maintenance was initially passed against the father of a minor child and during execution, property of the grandfather was attached because the father's assets could not be found and since the grandfather was neither made party in the suit nor had he been given an opportunity to defend himself against the claim, therefore, the attachment of his property was held to be illegal by the Supreme Court emphasizing the importance of due process and a fair trial. The Supreme Court went onto observe that the two conditions referred hereinabove are defence available to grandfather, which necessarily means that he is provided with an opportunity to take up the said defence(s) in order to ensure due process and fair trial and that such a grandfather cannot be burdened with the liability to discharge decree for maintenance during execution proceedings if he is not party to the suit. This brings this Court to the core issue involved in the instant case where the Appellate Court below remanded the case with the direction to respondent No.3-- plaintiff to implead the petitioner as defendant in the suit. At this juncture, it is apt to reiterate the settled law that appeal is continuation of the suit. Therefore, the Appellate Court and/or the Trial Court is seized with the power to implead proper and necessary party. Even otherwise, the dictate of justice, as held in case of Bashir Ahmad supra, requires that before imposing any liability upon the grandfather, he should be impleaded as party and be afforded an opportunity of hearing.
8. In the present case, respondent No.6 has unequivocally asserted that he lacks the financial means to support the minors, while respondent No.3--the mother, has also averred that she is a housewife without any source of income or ownership of property. If the contentions of the petitioner were to be accepted--that the Appellate Court below erred in remanding the matter and permitting his impleadment--it would mean that the respondents will be required to first obtain a decree against their father--the son of the petitioner/respondent No.6 and once the said respondent is not able to pay the adequate maintenance in terms of the decree passed by the Court, another set of proceedings be initiated against the petitioner being the paternal grandfather in terms of paragraph 370 of the Muhammad Law, which amounts to an avoidable multiplicity of proceedings. Such fragmented litigation not only burdens the judicial system but also prolongs relief to the minor grandchildren of the petitioner, whose welfare must remain the paramount consideration. Suffice to state that the law does not favour piecemeal litigation, especially where a single comprehensive adjudication can resolve the matter. The Courts are duty-bound to avoid wastage of judicial resources and prevent litigants from being entangled in repetitive legal proceedings. This principle is applicable with greater vigour and force in family cases as the provisions of CPC are not applicable and the Family Court under the law is vested with power and jurisdiction to regulate its own procedure. Hence, the course adopted by the Appellate Court below directing that both the father and the grandfather be made parties in the same proceedings ensures procedural economy and promotes the welfare of the minors, which as noted above is of paramount consideration. It is also worth mentioning that no adverse or coercive order has been passed against the petitioner, at this stage. He has not been directed to pay any interim maintenance to respondents No. 3 and 4. The responsibility to pay interim maintenance continues to rest with respondent No.6. The impugned judgment merely allows the parties to produce evidence to substantiate their respective claims and defences as held in case of Bashir Ahmad supra. The petitioner will have ample opportunity to establish, if he so desires, that his son-- respondent No.6 has sufficient financial means to adequately maintain the minors, or that respondent No. 3--the mother possesses adequate resources, or that he himself is not in easy circumstances and thus not liable, in terms of applicable law.
9. For the reasons stated above, this writ petition is devoid of merit and is accordingly dismissed.