1994 CLC 493 (PLP)

Nemo for Respondent No.2. Date of hearing: 21st November, 1992. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arise out of suit for maintenance filed by the petitioner against respondent No.l, who is her father, which was decreed by the Family Court on 23rd February, 1991 and the respondent No.l was directed to pay maintenance to the petitioner at the rate of Rs.1,000 per month with effect from the date of her birth.

2. On appeal filed by respondent No.l, the decree was modified and. the award for maintenance was reduced from Rs.1,000 to Rs.500. This judgment decree of the Additional District Judge, Lahore, dated 20th June, 1991 has been assailed in this petition.

3. The learned counsel for the petitioner has contended that as respondent No.l had challenged the decree awarding the maintenance, he was 'liable to pay court‑fee in terms of Schedule I of Article I of Court Fees Act, on the value of the subject‑matter as determined according to Section 7(i) and (ii) of the Court Fees Act and not a fixed court‑fee of Rs.15 as was done by respondent No.l.

4. As the judgment of the learned Additional District Judge does not deal with this question, the learned counsel was asked as to whether this point was raised before the learned Additional District Judge. He has filed his own affidavit in this Court deposing that not only the question was raised but also the judgment reported as Mirza Daud Baig v. Additional District Judge, Gujranwala and others (1987 SCMR 1161), was cited. This affidavit remained unrebutted on record.

5. In view of the affidavit filed by the learned counsel for the petitioner, the respondent's learned counsel is not in a position to dispute any further that the question was raised but was not attended to by the learned Additional District Judge. He has, however, argued that non‑payment of court‑fee having not prejudiced the case of the petitioners, he cannot be allowed to reagitate this matter at this stage.

6. I am afraid, this contention of the learned counsel cannot be accepted. As the question of court‑fee had been raised before the Additional District Judge, he was certainly under legal obligation to have attended to it and to have decided as to whether the court‑fee paid was deficient, if so, to what extent. In these circumstances, it appears to be in the interest of justice that the case is remitted to the Additional District Judge for determination afresh.

7. The remand has also been necessitated by the fact that while reducing the rate of maintenance, the Additional District Judge has not discussed the evidence on record at all and has merely observed that petitioner's evidence was not sufficient to prove the earning of the respondent. Such treatment to the main issue before him certainly cannot be countenanced. For the reasons aforesaid, this petition is allowed and judgment and decree of the lower Appellate Court is declared to be without lawful authority and of no legal effect, with the result that the appeal filed by respondent No.l shall be deemed to be pending before the Additional District Judge and shall be decided afresh in accordance with law. Parties to bear their own costs. H.B.T./A‑291/L. Case remanded.