1988 PLP 1645 (CLC)

I.MAHMOOD,J. ‑‑ Petitioner Mst. Hameeda Begum, filed a Family Suit against respondent No. 2, Ghulam Hyder for past and future maintenance. As the suit was decreed for Rs.1,500 only, the petitioner filed an appeal to the District Court and affixed a court‑fee of the value of Re. 1 only on the memo. of appeal. During the pendency of the appeal the respondent No.2, moved an application for the rejection of the memo. of appeal on the ground that the petitioner/ appellant had failed to pay ad valorem court‑fee, as required under section 7(1) of the Court Fees Act, 1870. The learned Additional District Judge relying on the decision reported in Mohammad Anwar Khan v. Additional District Judge, Rawalpindi PLD 1978 Lah. 716 held that the Memorandum of Appeal arising out of a suit for maintenance attracted ad valorem court‑fee under Article 1, Schedule I of the Court Fees Act, 1870. He, therefore, dismissed the appeal.

2. Mr. Syed Hassan Asghar Rizvi, learned counsel for the petitioner submitted that an appeal is a continuation of a suit and unless there are specific provisions for payment of different court‑fees, the court‑fees paid on the suit was payable on the appeal also. We find no force in this submission. Ordinarily, a plaint in a suit for maintenance falls under section 7(i) and (ii), Court Fees Act and attracts ad valorem court‑fee on the amount claimed to be computed in accordance with Article 1, Schedule I of the Court Fees Act. But, section 19 of the West Pakistan Family Courts Act, 1964 alters the law in this respect and enacts that notwithstanding anything to the contrary contained in the Court Fees Act, 1870, the court‑fee to be paid on any plaint filed before a Family Court shall be Re.

1. The concession with regard to reduction in the court‑fee is restricted to a 'plaint'. The omission of 'memorandum of appeal' in this section is significant, particularly, as both a plaint and a memorandum of appeal are included in Article 1, Schedule I of the Court Fees Act, as attracting ad valorem court‑fees. On the principle of expression 'unius est exclusio alterius' (the express mention of one implies the exclusion of the other), it is clear that the Legislature intended to exclude from the purview of section 19 of the said Act, the 'memorandum of appeal'. The concession with regard to payment of court‑fees on a 'plaint' filed before a Family Court, which has been granted to a petitioner, who is generally a married woman, seeking to enforce her family rights, is not to apply to a memorandum of appeal.

3. The next submission of Mr. S.H. Rizvi is that a Family Court is not a Civil Court, and therefore, according to him, section 6 of the Court Fees Act, which prohibits the receiving of a memorandum of appeal unless the court‑fee indicated in the Schedule has been paid on the document, does not apply. This argument was fully considered by the Lahore High Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi P L D 1978 Lah. 716 and was repelled. We are in respectful agreement with the reasoning of that judgment. The Family Court is a Civil Court, despite the exclusion of the Civil Procedure Code and the Evidence Act in their application to proceedings before the Family Court. Moreover, the appeal in question was filed before the District Court under section 14 of the West Pakistan Family Courts Act. The District Court is undoubtedly, a Civil Court. There can be no doubt, therefore, that a memorandum of appeal to be filed before the District Court falls under Article 1 of Schedule I of the Court Fees Act, and court‑fee in such cases is payable ad valorem on the subject‑matter in dispute.

4. For these reasons, we find no force in this petition, which is accordingly, summarily dismissed. A . A . / H‑93/ K Petition dismissed