Malik AHMED NAWAZ Awans vs FARIHA MALIK And Another

ORDER SYED AKHLAQ AHMAD, J.---This writ petition calls for the indulgence of this court against an interim order passed by the Judge Family Court Lahore whereby she dismissed the application of Malik Ahmad Nawaz Awan/ petitioner/defendant for rejection of plaint.

2. Learned counsel for the petitioner/ defendant contends that there is no provision of law in the Family Court Act or Muslim Family Laws Ordinance to file a suit for enhancement of maintenance when the matter has already been previously decided by a competent court of law. Fariha Malik/respondent No. 1/plaintiff ought to have file the execution petition to recover maintenance allowance from the petitioner. Contents of the plaint reveal that the suit has been filed in the court of the Senior Civil Judge Lahore which is not maintainable as the civil suit is barred by law.

Respondent has also not produced any attested or unattested copy of previous judgment and decree of maintenance. This being so, the question of enhancement does not arise at all.

3. I have heard the arguments of the learned counsel for the petitioner and have also gone through the documents available on the file.

4. Operative para of the impugned interim order dated 28-10-2010 passed by the learned Judge Family Court Lahore reads as under:-- "Arguments heard, record perused".

Perusal of record reveals that respondent filed suit for increasement of maintenance allowance on 4-1-2009. On 10-4-2009 defendant appeared through counsel. On 5-6-2009 the respondent/ defendant instituted above captioned application.

The respondent/plaintiff was directed to produce judgment and decree of previous litigation. On 5- 9-2009 the counsel for plaintiff/respondent got recorded his statement that the record of previous suit between the parties has burnt, therefore, application of respondent/defendant be decided.

Robkar be issued in the concerned office for production of original file. The Record-keeper reported thereon that record of previous suit between the parties is not available because the same has been burn. The main stance of petitioner/ defendant is that present suit is not maintainable because suit for maintenance of minor has already been decreed and fresh suit is barred by law. I relied upon judgment 2005 CLC 1913 Lahore wherein this question has been settled that suit for enhancement of maintenance of minor can be filed and principal of res judicata is not applicable.

The stance of defendant is not based on logical reason.

For what has been discussed, application is hereby dismissed and respondent/defendant is given last and final opportunity to file written statement otherwise right of defendant/petitioner would be struck of.

Now to come up on 4-11-2010.

5. According to section 14 (3) of the West Pakistan Family Courts Act, 1964, "No appeal or revision lies against an interim order passed by a Family Court."

Likewise writ against interlocutory order is also not competent.

In this regard I rely upon S. Izharul-Haq Naqvi v. Mst. Hamida Bibi and 2 others 1979 CLC 754 and 'Muhammad Akram v. Mst. Raheela Aslam and 2 others PLD 1999 Lahore 33.

6. Be that as it may, the petitioner is not remediless inasmuch as if a decree is ultimately passed against him by the Family Court, he can file an appeal against the decision or decree wherein he may challenge interim order, if so desired.

In view of above, writ petition is not maintainable and the same is dismissed in limine.