1987 PLP 1161 (SCMR)

In this case the suit filed was for maintenance by the wife and the petitioner herein, who was her husband, was directed to pay future maintenance at the rate of Rs,500 per month as also Rs.6,500 towards arrears of maintenance by the Family Court Judge. The petitioner challenged this order by an appeal but on the "memorandum of appeal" he paid the same court‑fee as was affixed on the plaint which was filed by his wife, namely, Rs.15. The Appellate Court, namely, the Additional District Judge was of the view that the court‑fee of Rs.15 paid was insufficient. In his opinion as this case related to a claim for future maintenance it was governed by section 7(ii) of the Court Fees Act and the court‑fee was payable according to the value of the subject‑matter of the suit, namely, ten times of the amount claimed payable for one year which came to Rs.66,

500. On that view of the matter the petitioner was called upon to make up the deficiency in court‑fee amounting to Rs.4,

972. However, the petitioner failed to make up the deficiency within the time prescribed whereupon the appeal was dismissed by the learned Additional District Judge. The petitioner challenged the above order by a writ petition in the High Court. This too was dismissed. Hence this petition for leave to appeal. In the West Pakistan Family Courts Act, 1964 the matter of institution of suits is dealt with in section 7 of the Act which lays down inter alia:‑ "Section

7. Institution of suit.‑‑ (1) Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and in such Court as may be prescribed. (2)???????? The court‑fees payable on the plaint is specified in section 19 of the Act, as follows: "Section

19. Court‑fee.‑‑ Notwithstanding anything to the contrary contained in the Court Fees Act, 1870, the Court‑fees to be paid on any plaint filed before a Family Court shall be rupee one for any kind of suit. [Punjab Amendment [Substitute "rupees fifteen for rupee one" (Punjab Act 14 of 1973, section 9) ] . An appeal against a decree passed by a Family Court, not presided over by the District Judge, lies to the District Court. In this context the question arose whether the appeal filed by the petitioner in the District Court after paying Rs.15 court‑fee, which was the amount of the court‑fee payable on the plaint, was the proper court‑fee or whether the court‑fee on the memorandum of appeal was to be paid ad valorem namely Rs.4,

987. As mentioned already both the learned Additional District Judge and the High Court were of the view that the court‑fee in this case was payable ad valorem. In this connection, reliance was placed on the provisions of clause (ii) of section 7 of the Court Fees Act. The relevant part of section 7 is reproduced below for facility of reference: ‑- "

7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:‑ (i) In suits for money (including suits for damages or compensation, or arrears of maintenance of annuities, or of other sums payable periodically according to the amount claimed: (ii) In suits for maintenance and annuities or other sums payable periodically‑‑ according to the value of the subject‑matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year." It requires no gainsaying that ordinarily a plaint in a 'suit for maintenance falls under section 7 (i) and (11) of the Court Fees Act and attracts ad valorem court‑fee on the amount claimed to be computed in accordance with Article 1 of Schedule I of the Court Fees Act. Bui section 19 of the West Pakistan Family Courts Act, 1964, alters the law contained in the Court Fees Act, 1870 to the extent that the court‑fee to be paid on any plaint filed before a Family Court shall be Rs.15 (in the Punjab). It is noteworthy, however, that the concession with regard to the reduction in the court‑fee is restricted only to the "Plaint", and not to a "memorandum of appeal". The omission of "memorandum of appeal" in this section is significant because both a "plaint" and a "memorandum of appeal" are included in Article 1 of Schedule 1 of the Court Fees Act as attracting ad valorem Court‑fees. It is an accepted Principle of interpretation that the express mention of one implies the exclusion of the other (expressio unisus, est exclusio alterius). It is manifest, therefore, that the Legislature intended to exclude from the purview of section 19 of the Family Court Act the "memorandum of appeal" and confined the concession with regard to payment of court‑fee's, only on a "plaint". There can hardly be any doubt that a Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of section 6 thereof. It was held in Mst. Gaman v. Taj Din P L D 1968 Lah. 987 by our late lamented brother K.E. Chauhan, J. (while sitting in the High Court) that a Family Court was a Court for all purposes. This view was endorsed by a Division Bench of the Lahore High Court (consisting of Sardar Muhammad Iqbal and Ghulam Mujaddid Mirza,JJ. ) in Muhammad Anwar Khan v. Additional District Judge etc. P L D 1978 Lah. 716 and reiterated by a Bench of the Sind High Court (consisting of Abdul Kadir Shaikh, C. J. and Mahmood, J) in the case of Hamida Begum v. First Additional District Judge, Karachi (Constitutional Petition No.1319 of 1975 decided on 24‑2‑1976). We too are of the same opinion. The Family Court is a Civil Court and despite the exclusion of the Civil Procedure Code and the Evidence Act in their application to proceedings before the Family Court it is a judicial Court in every sense. Moreover, the appeal in this case was filed before the Additional District Judge, under section 14 of the West Pakistan Family Courts Act, and the said Court undoubtedly is a Civil Court. The result, therefore, is that a "memorandum of appeal" to be filed before the District Court falls under Article 1 of Schedule 1 of the Court Fees Act and the court‑fee in such cases is payable ad, valorem on the subject‑matter of the dispute. The upshot is that there is no force in this petition which is, accordingly, dismissed hereby. M . B . A . / D‑2 / S???????????????????????????????????????????????????????????????????????????? Petition dismissed