' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order dated 26th February, 1981 passed by an Additional District Judge, Lahore whereby the judgment and decree of the family Court was set aside and the case was remanded to it for decision afresh keeping in view the directions in the order of remand.
2. Petitioners Nos.1, 2 and 3 arc the daughters and petitioner No.4 is the son of Mr. M.K. Khakwani respondent No2 herein. In February, 1980 the petitioners filed a suit for recovery of RsA2,000 as arrears of maintenance and also for future, maintenance at the rate' of Rs,14,000 per month. The suit was contested by respondent No.2 who filed his written statement. The learned Judge Family Court recorded the better statement of respondent No.2 and proceeded to pass a decree for maintenance at the rate of Rs,8,000 per month for all the four petitioner& It was further directed that petitioner No3 shall be medically treated at the cost and expense of respondent No.2.
3. Two appeals; one by the petitioners and the other by respondent No.2 were filed in the District Court against this decision of the Family Court. In the appeal filed by the petitioners, they objected to the grant of maintenance at the rate of Rs,8,000 per month and prayed that it be enhanced to Rs,14,000 per month. So far as the appeal filed by respondent No.2 is concerned, his grievance was that the suit could not have been decreed only on the basis of his better statement and the decree as a whole should be set aside.
4. The appeal filed by respondent No.2 was taken up for hearing by Mr. Azeem Khan Niazi, Additional Distt. Judge, Lahore who on 28th September, 1980 upheld the grant of maintenance by the Family Court to the petitioners but reduced the rate from Rs,8,000 per month to Rs, 6,400 per month. This order was passed in the absence of respondent No.2 and his learned counsel who did not enter appearance on that date. As regards the past maintenance, it was observed that it shall be decided later on in the appeal filed by the petitioners.
5. The appeal tiled by the petitioners came up for hearing on 26th February, 1981 before Sh. Lutfur- Rchman, Additional District Judge, Lahore who had succeeded Mr. Azeem Khan Niazi. Strangely enough, the Additional District Judge instead of confining his attention to the question raised in the appeal namely the rate of maintenance, proceeded to set aside the decree of the Family Court as a whole holding that the suit could not have been decreed without recording any evidence by the Family Court. The Additional District Judge relied upon the provision of Order 41 rule 33 of the C.P.C.
To observe such a relief could be granted to respondent No.2 notwithstanding the absence of any appeal or cross objections by him. As regards the dismissal of the appeal of respondent No.2 by his predecessor, it was stated that the appeal could not have been decided on merits in the absence of respondent No.2 and his counsel but should have been dismissed in default. He, therefore, after setting aside the decree remanded the suit to the trial Court for decision afresh in accordance with law. This order of the Additional District Judge has been assailed by the petitioners in this constitutional petition.
6. Mr. Asad Ullah Siddiqui, Advocate, learned counsel for the petitioners in support of this petition has raised the following contentions:--
(i) That the appeal filed by respondent No.2, against the decree and judgment of the Addl. District Judge was dismissed by Mr. Azeem Khan Niazi, Addl. District Judge, Lahore on 28th September, 1980. The only matter before Sh. Lutfur-Rehman, Addl. District Judge arising out of the appeal of the petitioners was as regards enhancement of the rate of maintenance and the decree of the Family Court could not have been set aside.
(ii) That the provisions of Order 41 rule 33 C.P.C. On which reliance has been placed by the Addl.
District Judge have no applicability to a case arising under the Punjab Family Court's Act, 1964 and could not, in any case, have been invoked in the present case when the appeal filed by the respondent had already been dismissed.
(iii) That no power was vested in Sh. Lutfur-Rehman, Additional District Judge, Lahore to vary or modify the judgment of his predecessor.
' Mr. S.M. Masood, learned counsel for respondent No.2 submitted that as some of the. Petitioners had attained majority while for others Court of ward had been appointed under the Punjab Court of Wards Act, 1903, the present petition on their behalf by their mother was not competent. On merits the learned counsel supported the order of the Addl. District Judge.
7. Admittedly, against the judgment and decree of the Family Court, the petitioners as well as respondent No.2 had filed separate appeals. The appeal filed by respondent No.2 wherein he had challenged the validity of the decree of the Family Court as a whole was dismissed by Mr. Azeem Khan Niazi, Addl. District Judge, Lahore on 28th September, 1980. This decision was not assailed any further, and as such attained finality. On no principle of law could this decision be interfered with by Sh. Lutfur-Rehman who was the successor of Mr. Mohammad Azeem Khan Niazi, Additional District Judge, Lahore. The question as to whether Mr. Azeem Khan Niazi should not have decided the appeal on merits in the absence of respondent No.2 was of little consequence inasmuch as it was clearly not open to Sh. Lutfur-Rehman who was the successor of Mr. Muhammad Azeem Khan Niazi to criticise the judgment of his predecessor. If respondent No.2 had any grievance against the decision he should have challenged it further but he failed to do so and allowed it to become final.
No jurisdiction was vested in the Additional District Judge, Lahore to set at naught the decision rendered by his predecessor. It is unfortunate that in the impugned order the Additional District Judge proceeded to criticise the order of his predecessor, although he had absolutely no jurisdiction to do so.
8. As regards the applicability of Order 41 rule 33 C.P.C. Suffice it to say that the provisions of the C.P.C. Are not applicable to the proceedings before the Family Courts in view of the clear mandate of section 17 of the Punjab Family Courts Act, 1964. The Additional District Judge could not, therefore, have pressed into service rule 33 of Order 41 C.P.C.
' Even if it is assumed that the provisions of the Code of Civil Procedure were applicable, Order 41 rule 33 had no applicability to the facts of the present case. Exercise of power under rule 33 is discretionary with the Court, and has to be applied with caution, and is limited to cases which, as a result of Appellate Court's interference with decree in favour of appellant, require further interference in order to adjust rights of parties in accordance with justice, equity and good conscience. It was so held by a Division Bench of this Court in Hasan Muhammad v. Jan Muhammad and 5 others PLD 1982 Lahore 132 as also by the Calcutta High Court in Manab Shaikh v. Mahammad Golam Nabi and others AIR 1928 Cal. 488. Reference with advantage may also be made to a Division Bench of Patna High Court in Darogi Rai and another v. Basdco Mahto and others AIR 1937 Patna 40 wherein it was held that "though the power of Appellate Court is wide, the case in which it should interfere with decree which has not been appealed against are those in which the portion of the decree appealed against is so inseparably connected with the decree not appealed that justice cannot be done unless the portion against which no appeal has been preferred is also interfered with". Rule 33 of Order 41 was also examined in Mst. Tahl Kuar v. Amar Nath and others AIR 1925 Lahore 2 and it was observed that:- "Though no general rule can be laid down that Court should not apply Order 41, Rule 33 in favour of party who has appealed or filed cross-objections and failed, yet without strong reasons, it will not take such a course."
From the above discussion it is quite apparent that the Additional District Judge acted clearly in excess of his authority in setting aside that part of C the decree which had become final.
10. As regards the objections raised by the learned counsel for the respondents suffice it to say that maintainability of this petition is not affected by the fact that some of the petitioners have attained majority in the absence of any repudiation of the present proceedings by them. Similarly, the objection on the strength of the Punjab Court of Wards Act 1903 is wholly misconceived. In D support of this objection, the learned counsel relied upon section 20 of the Act which has no applicability to the present case. This section provides that no suit affecting the property of the ward shall be filed except with the permission of Court of Wards. The dispute before this Court is with regard to the maintenance and no property is involved therein.
In view of the foregoing reasons this petition is accepted, the impugned order of Additional District Judge dated 26-2-1981 is declared to be without lawful authority and of no legal effect with the result that the appeal filed by the petitioners shall be deemed to be pending before the Additional District Judge who shall proceed to decide it afresh in accordance with law. The parties shall appear before the District Judge, Lahore on 14th February, 1991 who may either hear the appeal himself or entrust it to any other Additional District Judge. No order as to costs.