BASHIR MASIH vs SUNEELA NADEEM Ss — 2024 CLC 863 LAHORE-HIGH-COURT-LAHORE

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BASHIR MASIH VS SUNEELA NADEEM Ss.17-a, 5 & Sched.---Suit for recovery of maintenance allowance for minors whose father passed away---Right of defence---Striking off---Paternal grandfather of the minors, responsibility of---Scope---Whether the grandfather could be held liable to pay maintenance allowance to his grandchildren---Family Court while fixing interim maintenance allowance, ordered the petitioner (grandfather) to pay the interim maintenance allowance---On failure by the petitioner to cross-examine the witnesses of the respondents and pay interim maintenance, his right of cross-examination was closed and defence was struck off---Validity---Record showed that though petitioner was not present on the date fixed but his counsel was in attendance---However, it could be observed with naked eyes that at the time of pre-trial proceedings due compliance was not made to S.10 Family Court act, 1964 and even issues were not framed properly to capture the actual controversy---Suit was decreed on account of failure by the petitioner to pay the interim maintenance while invoking S.17-a of the act, 1964---Said provision was, however, later on amended through Punjab Family Courts (amendment) act (XI of 2015)---From the combined analysis of old and new S. 17-a of the act, 1964, it is manifestly clear that though in the latter, very specific and categoric consequences of failure to pay the interim maintenance had been provided but Court was also made bound to look into averments of the plaint and other supporting documents on record of the case before passing the decree---Though by virtue of S. 17-a of "the act", Family Court was vested with the power to strike off the defence of the defendant and decree the suit on failure by him to pay the interim maintenance in terms of order of the Court but it would not equip the Court with unfettered powers to proceed mechanically---In no circumstances, a Court could abdicate its prime duty to foster justice as per canons of law---Court could not proceed in vacuum and exercised judicial powers arbitrarily and whimsically---Before invoking a penal provision like S.17-a of "the act" the Court was supposed to consider as to whether it was vested with the power to pass the order of interim maintenance, which was not done at all---Even the appellate Court did not apply its own independent judicious mind to the facts of the case and acted merely as a post office to affix its stamp on the findings of the Trial Court in a mechanical manner---Though, there were concurrent findings of the Courts below but both the Courts below had proceeded in a casual manner and took their eyes off some very material and important aspects of the matter---Petition was allowed and case was remanded to Trial Court with the direction to decide the case afresh while commencing the proceedings from pre-trial stage as provided under S.10 of the act, 1964.

BASHIR MASIH vs SUNEELA NADEEM Ss — 2024 CLC 863 LAHORE-HIGH-COURT-LAHORE

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