ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. S – 2152 of 2016

Date of hearing

Order with signature of Judge

For direction / Disposed of matter

For hearing of CMA No.2738/2019 (Restoration)

(Notices issued)

10.06.2019

Mr. Abdul Sattar Rajput Khokhar, Advocate for the petitioner.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

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CMA No. 2738/2019

For reasons so stated in the supporting affidavit of this application, the same is allowed and the petition is restored to its original position.

1. This is a petition whereby the petitioner has impugned judgment dated 21.10.2014 and decree dated 24.10.2014 passed by the Family Judge, Naushahro Feroze in Suit No.47 of 2014 through which Suit of Respondent No.1 was decreed in respect of payment of maintenance as well as judgment dated 02.05.2016 and decree dated 04.05.2016 passed by the Additional District Judge, Naushahro Feroze in Family Appeal No.12 of 2014 whereby the appeal has been partly allowed.

2. Learned counsel for the petitioner submits that both these impugned orders are not in accordance with law as well as the facts on record as the suit for jactitation of marriage filed by the present petitioner stands decreed vide judgment dated 31.03.2016 against which no appeal has been preferred and, therefore, the impugned judgments and orders for payment of maintenance to the respondent cannot be sustained.

3. Record reflects that none has appeared for the private respondent.

4. I have heard the learned counsel for the petitioner and perused the record.

5. It is a matter of admitted position that the petitioner filed Family Suit No.731 of 2013 in the Court of Civil & Family Judge at Hyderabad which was pending, whereas, respondent No.1 filed another Family Suit bearing No.47 of 2014 before the Family Judge at Naushahro Feroze and in that matter initially an order was passed for deposit and payment of maintenance on 05.08.2014, which was not complied with and subsequently the said suit was decreed by confirming the interim order of maintenance. The petitioner, being aggrieved, filed an appeal before the Additional District Judge, Nausharo Feroze which has been partly allowed vide judgment dated 02.05.2016 to the extent by setting aside the order of the Family Judge, Naushahro Feroze; but at the same time the petitioner was directed to deposit the disputed amount of maintenance before the trial Court, which would be subject to the decision of the suit. However, it also appears to be an admitted position that the Family Suit No.731 of 2013 filed by the petitioner, which was earlier in time, stands decreed vide judgment dated 31.03.2016 and in that suit, issue No.1 that whether the nikahnama dated 26.02.2012 showing the nikah of the parties is fake and forged, stands allowed in the affirmative on the ground that respondent No.1 / defendant in the suit failed to prove the validity of the nikahnama in the following terms:

“ The beneficiary according to the plaintiff is defendant who has managed forged nikahnama thus burden to prove also lied upon defendant to have prove Nikahnama would had examined Nikah Khuwan, witnesses of Nikah, which she has utterly failed from every corner, even she has not produced the original Nikkahnama into her support before this court during here evidence, further the defendant in her statement before this court has deposed that Muhammad Aslam and Maqsood Ahmed are the witness of marriage and in list provided by the defendant two witnesses namely Muhammad Aslam and Muhammad Ramzan were cited as witness to support the plaintiff’s claim out of them one Muhammad Aslam who as per defendant is the eye witness of her marriage has completely denied the stance of defendant and has not supported the version of defendant where as the other witness Muhammad Ramzan was not cited by the defendant as eye witness of the marriage, no other witness has been cited or produced by the defendant.

In view of above facts and circumstances I feel no hesitation to hold that the nikahnama dated 26-02-2012 is showing the nikah of parties is fake & forged. The issue No: 1 is answered in the affirmative. ”

6. On perusal of the impugned judgment passed by the Additional District Judge, it appears that this order was placed before the learned Judge and perhaps on the basis of this judgment, though the impugned judgment of the Family Court was set aside; but at the same time, the order for deposit of maintenance was maintained which does not appear to be correct appreciation of law. It is settled position that orders of interim nature duly stand merged in the final orders and, therefore, once the final judgment in respect of payment of maintenance was set aside, the learned Additional District Judge could not; rather ought not to have given directions to deposit maintenance as directed by the trial Court as the said order was no more in field and had merged into the final judgment of the trial Court which had been set-aside by the learned Additional Judge. It is incomprehensible as to how the learned Additional Judge, after setting aside the final judgment and decree, which itself was based on the order of interim maintenance, could otherwise direct the petitioner to comply with the said interim order, which admittedly no more remained in field pursuant to passing of judgment and decree. It is also a matter of record and as pleaded by the petitioner that the judgment dated 31.03.2016 passed in his Family Suit No.731 of 2013, whereby the very nikahnama in this case has been held to be forged and fake, was not impugned any further. Hence, in these circumstances any direction to deposit the maintenance to respondent No.1 could not be justified. As noted earlier, despite service of notice none has affected appearance on behalf of Respondent, whereas, it also reflect from the facts on record that she is no more interested in proceeding with the issue in hand as no appeal has been filed in respect of decree granted in favor of the Petitioner.

7. In view of hereinabove facts and circumstances of this case, this petition is allowed and impugned judgment dated 21.10.2014 and decree dated 24.10.2014 passed by the Family Judge, Naushahro Feroze in Suit No.47 of 2014 as well as judgment dated 02.05.2016 and decree dated 04.05.2016 passed by the Additional District Judge, Naushahro Feroze in Family Appeal No.12 of 2014 are hereby set aside.

J U D G E

Abdul Basit