MAKHDOOM ALI vs Mst. RAZIA SULTANA and otherss

' SYED HAMID ALI SHAH, J.---Briefly stated facts of the instant petition are that respondent No,1 filed suit for maintenance allowance of her son in the Court of respondent No,3. During the course of proceedings, respondents Nos. 1 and 2 filed an application for interim maintenance. The application was contested by the petitioner who submitted his reply and respondent No,3 vide order, dated 16-9-2005, declined the interim maintenance to plaintiff No,3 on the ground that the plaintiff had attained the age of majority. Learned Court, however, keeping in view that plaintiff No,2 has not yet been married, granted interim maintenance allowance to her No,2 under section 17-A of the West Pakistan Family Courts Act, 1964, at the rate of Rs,10,000 per month.

2. Learned counsel for the petitioner has contended that respondent No,3 has passed the impugned order without proper application of mind to the proposition in hand. There was no proof at all with regard to the business income of the petitioner. The respondent No,1 in her oral evidence has deposed that she has heard about the petitioner that he earns nearly Rs,10,00,000 (rupees ten lacs) a month from his business income. It has further been stated, in the evidence that the rental income of the petitioner is Rs,5,00,000 (rupees five lacs) per mensum. No proof with regard to either of the income has been placed on the record except for, the oral assertion. He has further submitted that the petitioner has no other source of income except for the rental income. The property wherefrom he derives rental income is stuck up and dozens of cases are pending in various Courts. The petitioner is sharing rental income with other legal heirs of his deceased father.

The rate of interim maintenance allowance is highly exorbitant and the same is not in consonance with income of the petitioner.

3. On the other hand, learned counsel for the respondents has fully supported the impugned order.

He has submitted that the respondents have stated that the income of the petitioner is Rs,5,00,000 from his property. The statements got recorded by respondents Nos. 1 and 2 as P. Ws. 1 and 2, do not come within the definition of hearsay evidence. Learned counsel has referred to the demand notice of the property tax, which was issued to the deceased father of the petitioner wherein a sum of Rs,3,50,000 was demanded as property tax. This unrebutted statement of the respondents sufficiently proves the quantum of rental income, which the petitioner earns from his property.

Learned counsel has submitted that it is proved from the copies of Form PT-10 and other documents that the petitioner is a man of means.

4. I have heard the learned counsel for the parties and perused the material available on the record.

5. Respondent No,1 in her statement as P.W.1 has stated that the cause of her conflict with the petitioner was that the petitioner was not earning anything and was not paying any maintenance.

Perusal of the statement further goes to reveal that P.W.1 has no direct knowledge about the income of the petitioner. She has stated that she has heard about the income of the petitioner.

There is no proof on the record about the definite income of the petitioner. The property of the petitioner is stuck up and there is litigation for which the petitioner has filed various suits which are pending in different Courts. The petitioner does not own the whole of the property regarding which the demand notice regarding property tax was served. The petitioner is one amongest share- holders. The interim maintenance is a tentative amount which is to be fixed, on careful examination of available evidence. Such amount can be either enhanced or reduced at the time of final adjudication of the matter. The exorbitant amount of interim maintenance allowance should not be fixed as non-compliance of payment of interim maintenance entails penal consequences. The amount of interim maintenance allowance is to be fixed after careful examination of the evidence or on available record. The amount of Rs,10,000 which learned Judge Family Court has fixed, seems to be exorbitant. It is yet to be proved through cogent evidence that the petitioner has other source of income through which can pay easily an amount of Rs,10,000.

6. Resultantly, this petition is allowed, the impugned order, dated16-9-2005 is modified and the amount of interim maintenance is reduced from Rs,10,000 to Rs, 5,000 per month. It may be clarified here that the observations made in this petition are tentative and are not final. Learned Judge Family Court while passing the final judgment, shall decide the question of income and maintenance allowance on the basis of evidence available on the record, ignoring any observations made in this order.