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Civil Petition No. 1148 of 1983, decided on 6th May, 1984.

(On Appeal from the judgment dated 28‑5‑1983 of the Lahore High Court in W.P. No. 4615 of 1982).

‑‑‑Art. 185(3)‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Writ jurisdiction‑‑Adequate remedy by way of appeal being available, High Court not to exercise Constitutional jurisdiction.

‑‑‑Art. 185(3)‑‑Provisional Constitution Order (I of 1981), Art. 9‑‑Writ petition‑‑Maintainability of‑‑Objection as to validity of decree having been raised before executing Court, writ petition filed to challenge validity of decree, held, premature.

Sajjad Raza Jafri, Advocate Supreme Court with S.Abid Nawaz, Advocate‑on‑Record for Petitioner.

Fazal‑i‑Miran, Advocate Supreme Court with Sh . A . Karim, Advocate‑on‑Record for Respondents

Date of hearing: 6th May, 1984.

‑‑ The petitioner, Manzoor Ahmad and Fatima Bibi are husband and wife and two sons were born out of their wedlock, namely, Amjad Farooq, aged 7 years and Safdar Iqbal aged 3 years. Unfortunately, their relations became strained and they started living separately and there is litigation between them. The petitioner has filed a suit for restitution of conjugal rights in the Court of the Judge, Family Court, Mandi Bahauddin, District Gujrat, while the respondent No.3 has filed a suit for dissolution of marriage in the same Court, at Mandi Bahauddin, District Gujrat. Surprisingly, she filed a suit for grant of maintenance for herself and her two sons nol before the same Court but before the 24th Civil Judge, Karachi, presumably when she was staying with her brother, who is employed at Karachi. In this suit, an ex parte decree was passed against the petitioner whereunder Rs.300 was allowed as maintenance (Rs.200 toward the maintenance of the sons and Rs.100 for maintenance of the wife) The said decree was sought to be executed by means of a precept, through the Civil Judge, Mandi Bahauddin.

2. The husband, on becoming aware of this judgment, challenged the judgment and the decree was passed at Karachi by filing constitutional petition in the High Court at Lahore. A learned Single Judge of the Lahore High Court dismissed the same on the ground that the impugned judgment and decree having been passed by a Court which is located beyond the territorial jurisdiction of the Lahore High Court the said Court, in exercise of its constitutional jurisdiction, could not declare the impugned judgment and decree to be without lawful authority and of no legal effect. The petitioner feeling aggrieved by this decision has moved this Court by a petition for leave to appeal.

3. Syed Sajjad Raza Jafri, learned counsel for the petitioner, in support of this petition, has submitted that the parties belonged to Mandi Bahauddin, the cause of action regarding the maintenance of the children also arose within the local limits of Mandi Bahauddin and that, in these circumstances. the Civil Judge, Karachi, had no jurisdiction in the matter and the decree passed by it was without jurisdiction. As the same was being executed by a Court in the Punjab, the Lahore High Court had the jurisdiction to examine its validity.

4. A learned Single Judge in the High Court, after considering the submission whether the Lahore High Court could exercise its constitutional jurisdiction in respect of a judgment and decree passed by a Court beyond its territorial jurisdiction at some length, held that it could not do so. He, therefore, dismissed the writ petition on this ground.

5. However, the writ petition was liable to be dismissed on a simple ground, namely, that the petitioner could not have challenged the propriety and legality of the judgment and decree passed by the Family Court at Karachi by filing an appeal against it before the District Judge at Karachi, as an adequate alternate remedy was available, consequently, even if the plea that the High Court could exercise, jurisdiction in this case was correct, it would not do so in the above) circumstances.

6. Moreover, we understand that the petitioner had already raised an objection to the validity of the decree in the executing Court at Mandi Bahaduddin and, therefore, the writ petition was, in any case, premature. Even otherwise, the petitioner as the father of his twos sons and husband of respondent No.3 is under a legal obligation to maintain them. The grant of maintenance amounting to Rs.300 can hardly be considered as excessive.

7. In view of the foregoing, this is not a fit case for exercise of this Court's discretionary jurisdiction to grant leave to appeal. This petition, therefore, fails and is dismissed hereby.

M. I. Petition dismissed.

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