IHSAN-UL-HAQ CHAUDHARY, J.--The petitioner through this constitutional petition has challenged the legality of the order dated 23.10.1989 passed by respondent No.3. The relevant facts giving rise to the present petition are that respondents No. 1 and 2, the minor sons of the petitioner, instituted a suit for grant of maintenance through their mother. The plaintiffs claimed maintenance @ 250/- per month.
2. The petitioner contested this suit. The learned Judge Family Court framed the issues and it seems that some evidence was also recorded when the parties entered into a compromise. The learned Judge Family Court accordingly recorded the statements of the parties. It was stated by them that the petitioner shall pay Rs.175/- per month to the minors as maintenance allowance. This amount shall be remitted through money order before 15th of each month and in case of default the maintenance allowance will be considered as Rs.250/- per month. This statement was signed by the maternal grandfather of the respondents No. 1 and 2 in addition to learned counsel for the parties. The learned Judge Family Court accordingly decree the suit of the plaintiffs in terms of above compromise. The plaintiffs, however, impugned this order through an appeal before respondent No.3. It was pleaded that although they have claimed past maintenance from January, 1982 yet the same has not been granted by the learned Judge Family Court, therefore, the order is illegal, void and un-justified. The appeal came for hearing before respondent No.3, who after hearing the parties, allowed the same vide order dated 23.10.1989. It is the order which has been impugned by the petitioner in this petition.
3. The learned counsel for the petitioner, in support of the petition has argued that the parties in the compromise did not say a word about the past maintenance, therefore, the claim will be deemed to have been relinquished. It is added that the respondent No.3 illegally interfered with the Settlement between the parties.
4. On the other had, the learned counsel for the plaintiffs have argued that since the learned Judge Family Court had failed to allow a relief as to past maintenance duly claimed by his clients, therefore, the learned lower appellate court was justified to accept their appeal.
5. I have given my enxious considerations to the arguments of the learned counsel for the parties and gone through the record. It is relevant to refer the statement, basis of the decree of the learned Judge Family Court before proceedings any further. The same reads as under:- 4 r3 <$L 4'<1 - \S(tfJ'^>jLf' {{ Urdu text }}
6. It is clear from the statement for the parties recorded by learned Judge Family Court, that none of them made any reference to the past maintenance, therefore, it was not only illegal but illogical to grant the past maintenance also at the agreed rate. The parties are not debarred from giving up any part of the claim at the trial, therefore, non-mention of the past maintenance in the statements clearly indicated that the parties did not press for the same and the plaintiffs have given up their claim. Respondent No.3 proceeded on surmises and conjectures while allowing the appeal.
7. This is not all No. Appeal is competent against the compromised decree. I have gone through memorendum of appeal before the learned lower appellate court. There is not a word as to mis- representation or fraud. The order of the learned Judge Family Court was challenged only on the sole ground that although the defendant accepted the claim of the plaintiffs yet the learned trial court instead of decreeing the suit from the date of demand of the maintenance allowance only granted future maintenance. It is clear from the statements recorded by the learned Judge Family Court and reproduced above that the claim was not accepted as it is, therefore, there was no basis to grant past maintenance. The learned respondent No.3 proceeded without any basis and failed to decide the appeal in accordance with the facts record, therefore, the decision is bad in law.
8. The upshot of this discussion is that this petition is allowed and the impugned order of respondent No.3 dated 23.11.1989 is set aside. The result is that the appeal of the respondents No. 1 and 2 shall be deemed to have been dismissed and the decree of the trial court is restored.