Second Suit for enhancement of maintenance allowance

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2020 C L C 320
[Balochistan]

Family Courts Act, 1964 had not barred the filing of a second suit for “enhancement” of maintenance allowance

Ss. 5, Sched. & 17 —Civil Procedure Code (V of 1908), S. 11—Suit for “enhancement” of maintenance allowance—Second suit—Res judicata—Principle of—Applicability—Scope—Respondent filed suit for enhancement of maintenance allowance which was earlier fixed through a decree—Trial Court dismissed the suit whereas appellate court allowed the appeal and remanded the suit for adjudication on merits—
Validity—Family Courts Act, 1964 had not barred the filing of a second suit for “enhancement” of maintenance allowance—Second suit was only barred in cases where the matter was directly or substantially in issue in a former suit between the parties—Earlier suit was for recovery of maintenance allowance but issue regarding its “enhancement” was neither raised nor was considered in that suit and thus was not in issue—Section 11, C.P.C. did not bar any subsequent suit, which was filed only for “enhancement” of maintenance allowance—Appellate court had rightly remanded the case to the Trial Court. Suit for “enhancement” of maintenance allowance—Second suit—Res judicata, principle of—Applicability—Scope—Section 11, C.P.C. in relation to the cause of action of suit codifies the doctrine of res-judicata which operates when there is a judgment between the same parties and it prevents a fresh suit between them regarding the same matter—In a suit for enhancement of maintenance, the growth of the children, the cost of living, change in the status of parties, change in the expenditures incurred based on the needs of the children are some of the factors which either bring about a change of the cause of action or may make out even fresh cause of action for the children to demand enhanced maintenance allowance—Fresh proceedings for maintenance allowance are maintainable before the Family Court, in circumstances.

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