2019 M L D 1128

[Lahore]
Before Muzamil Akhtar
Shabir, J

HANZLA KHALID and

others---Petitioners

Versus
KHALID PARVAIZ and
others---Respondents

Writ Petition
No.10200 of 2019, decided on 21st February, 2019.

(a) Family
Courts Act (XXXV of 1964)---
----S. 5, Sched.---Suit
for maintenance for miners---Source of income of father, proof of---Courts
below partially
decreed the suit for maintenance of
petitioners/minors---Petitioners sought enhancement of maintenance allowance on
the ground that father of minors was working abroad and was earning substantial
amount---Contention of father was
that he was settled back in Pakistan and was
an agriculturist by profession---Validity---Petitioners were required to
prove
their stance and negate the stance of father by producing some evidence on the
record but the same was not done-
--Appellate Court was justified in partially
decreeing the claim of petitioners in absence of any documentary
evidence--
-Constitutional petition was dismissed in limine.
(b) Constitution of
Pakistan---
----Art.
199---Constitutional petition---Findings of fact---Scope---High Court while
exercising constitutional
jurisdiction does not ordinarily reappraise the
evidence produced before the courts below to substitute findings of facts
recorded by them, nor gives its opinion regarding quality or adequacy of the
evidence unless any misreading, non-
reading of record or any illegality was
pointed out.
Qazi Shahid Rasheed for Petitioners.
ORDER
MUZAMIL AKHTAR SHABIR, J.---Through this constitutional petition, the
petitioners, who were plaintiffs in a
family suit for recovery of maintenance
allowance, etc., have assailed the findings recorded by the learned courts
below
dated 30.11.2018 and 17.09.2018, whereby the said courts have partially
decreed the claim of the petitioners/plaintiffs
and seek decree of the suit as
prayed for.
2. Briefly stated facts of the case are that
marriage between respondent No.1 and petitioner No.5 was solemnized on
12.01.2003 and from the said wedlock minor petitioners Nos. 1 to 4 were born.
On 14.10.2017, the petitioners/plaintiffs
filed a family suit for recovery of
maintenance allowance, medical expenses of petitioner No.1 and delivery
expenses
against the respondent No.1/defendant, in response to which the
respondent filed contesting written statement. On
09.07.2018, the respondent
was proceeded against ex-parte. On conclusion of the ex-parte evidence, vide
judgment and
decree dated 17.09.2018, the learned trial court held the
petitioners entitled to receive Rs. 2500/- each as maintenance
from the
respondent. The petitioners preferred appeal. The learned appellate court vide
judgment and decree dated
30.11.2018 modified the decree of the learned trial
court and held the minor petitioners Nos. 1 to 4 entitled to receive
maintenance allowance @ Rs. 3500/- each from the date of institution of the
suit till their legal entitlement with 10%
annual increment, whereas the
petitioner No. 5 was held entitled to receive Rs. 4000/- per month as
maintenance from
the institution of the suit till subsistence of marriage or in
case of divorce till "iddat" period. Both the afore-referred
judgments and decrees are under challenge through this constitutional petition.
3. Heard. Record perused.
4. The ground agitated by the counsel for the
petitioners is that the maintenance allowance decreed by the learned
appellate
court is not in accordance with the actual financial position of the respondent
and stated that respondent is
working in Greece and earning 2000 Euro per month
and can easily pay maintenance allowance of the petitioners @
Rs. 15,000/- per
month each. It is noticed that at trial no documentary evidence has been
brought on the record by the
petitioners to prove their claim regarding the
respondent living for earning in Greece and sound financial status of the
respondent. Although the respondent was proceeded against ex-parte vide order
dated 09.07.2018 by the learned trial
court yet the written statement of the
respondent is available on the record which clearly denies the claim of the
petitioners and it is stated by the respondent in the written statement that he
is living in Pakistan now and he is
agriculturist by profession and earns Rs.
15,000/- per month. The petitioners were required to prove their stance and
negate the stance taken by the respondent by producing some evidence on the
record but the same has not been done
and there is word of mouth of the
petitioner's side only without any material to substantiate the same. In
absence of any
documentary evidence, the learned appellate court was justified
in partially decreeing the claim of the petitioners. No
exception can be taken
to the same.
5. Learned counsel for the petitioner has
failed to point out any misreading, non-reading or illegality in the
impugned
judgments. The assessment and appraisal of evidence is the function of the
Family Court, which is vested
with exclusive jurisdiction in this regard. This
Court while exercising constitutional jurisdiction does not ordinarily
reappraise the evidence produced before the courts below to substitute findings
of facts recorded by the said courts, nor
gives its opinion regarding quality
or adequacy of the evidence unless any misreading, non-reading of record or any
illegality is pointed out, which have not been established on the record,
hence, there is no ground to set-aside the said
findings of fact.
6. For what has been discussed above, this
petition being devoid of any merits dismissed in limine.
SA/H-4/L Petition
dismissed.
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