1995 PLP 312 (CLC)

Syed Aftab Sheerazi for Petitioner. Mansoor‑ur‑Rehman Khan Afridi for Respondents Nos.3 and

4. Date of hearing: 18th October, 1994. The facts and circumstances which gave rise to this petition briefly are, that the petitioner was married to Mst. Zohra Bibi about 40/42 years ago. Out of the wedlock six children were born, out of which four are adults and two are minors (respondents Nos.3 and 4 in this petition). In 1991 the petitioner divorced Mst. Zohra Bibi and the minor children are living with her. Through their mother the respondents Nos.3 and 4, Asghar Shah and Dilawar Shah, filed a suit for recovery of maintenance against the petitioner in the Court of the learned Judge Family Court, Daska (respondent No.2), who vide judgment dated 25‑5‑1993 directed the petitioner to pay maintenance allowance for his two minor deaf and dumb children, namely, Asghar Shah and Dilawar Shah, at the rate of Rs.300 per month each as well as past maintenance for one year at the same rate which amounts to a sum of Rs.7,200 for both the children.

2. The petitioner preferred an appeal against this judgment of respondent No.2, before respondent No.1, the learned Additional District Judge, Daska, on 23‑6‑1993. The learned Appellate Court noted that court‑fee on the memorandum of appeal was deficient and on 1‑3‑1994, the petitioner was directed to make good the deficiency in court‑foe within a specified time. On the petitioner's request, time for making good the deficiency was granted up to 14‑4‑1994 but he did not make good the deficiency. The memorandum of Appeal was rejected by respondent No.1 for non deposit of court‑fee vide order dated 14‑4‑1994. Through this Constitutional petition, the petitioner has assailed the judgment and decree passed by respondent .Noi, awarding maintenance in favour of respondents Nos.3 and 4, and the order of respondent No.1, learned Additional District Judge, Daska, rejecting the Memorandum of Appeal on account of non‑deposit of court‑fee.

3. Regarding payment of court‑fee on the Memorandum of Appeal, it is contended on behalf of the petitioner, that since only Rs.15 is to be affixed as court‑fee to the plaint under section 19 of the Family Courts Act of 1964, the Memorandum of Appeal can also be filed by affixing the same court‑fee under the same concession. It is further argued that respondent No.2 has awarded maintenance a Rs.7,200 per annum for both minors. Thus total amount payable for two years comes to Rs.14,

400. Learned counsel for the petitioner has placed reliance on judgment cited at PLD 1991 Lah. 51 Muhammad Khalil v. Zahida Parveen to contend that in view of section 2 of Punjab Court Fees (Abolition) Ordinance (X) of 1983, no court‑fee was payable on the Memorandum of Appeal since the decretal amount was less than Rs.25,

000. On merits it is argued that both the minors are begging at the Mazar of Imam Barri and they are maintaining their mother and other relatives through their earnings, therefore they are not entitled to any maintenance allowance.

4. The learned counsel for the respondents has met the objections against payment of court‑fee by pointing out that in case cited at 1987 SCMR 1161 Mirza Daud Baig v. Additional District Judge, Gujranwala and others it has been held that the concession with regard to reduction in the court‑fee under section 19 of the Family Courts Act, 1964 is restricted to the "plaint" and does not extend to the "Memorandum of Appeal". As to the objection that under section 2 of the Punjab Court Fees (Abolition) Ordinance (X) of 1983, no court‑fee is payable on the Memorandum of Appeal when the decretal amount is less than Rs.25,000, it ' is pointed out that the case cited by learned counsel for the petitioner has already been distinguished in judgment cited at 1992 CLC 2270 titled Haji Khurshid Ahmed v. Mehr Salabat Khan, Additional District Judge Sahiwal and another. Learned counsel for the respondents has argued that after the rejection of the appeal of the petitioner on account of failure to affix proper court‑fee the petitioner cannot invoke the Constitutional jurisdiction of this Court for setting aside the judgment and decree of the learned Judge Family Court.

5. I have heard the learned counsel for the parties and perused the record. I have also examined the relevant law on the subject. In view of the judgment of the Supreme Court of Pakistan cited at 1987 SCMR 1161, Mirza Daud Biag v. Additional District Judge, Gujranwala and others, the argument that under section 19 of The Family Courts Act, 1964, court‑fee of Rs.15 can be affixed on Memorandum of Appeal is not tenable. It has been held that: "Ordinarily a plaint in a suit for maintenance falls under section 7 (i) and (ii) of the 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 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). The concession with regard to reduction in the court‑fee under section 19 of the Family Courts Act, 1964 is restricted to the `plaint' and does not extend to the `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 I of the Court Fees Act, 1870 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 the legislature intended to exclude from the purview of section 19 of the Family Court Act, 1964 the `Memorandum of Appeal' and confined the concession with regard to payment of court‑fees only on a "plaint". 6 According to the above judgment the Memorandum of Appeal would attract ad valorem court‑fee. In the present case the amount on which court fee would be payable for purpose of appeal would be computed as prescribed in section 7(i) and (ii) of the Court Fees Act, which would be Rs.7,200 arrears of maintenance plus ten times the amount payable annually, i.e. Rs.72,

000. The amount of court‑fee payable on the total amount would be computed under Article 1 of Schedule I of the Court Fees Act, and the petitioner was bound to deposit the requisite court‑fee in the above terms on the Memorandum of Appeal. The same principle has been followed in judgment cited at 1992 CLC 2270 titled Haji Khurshid Ahmed v. Mehr Salabat Khan, Additional District Judge/Sahiwal and another. Respondent No. 1 rightly rejected the j petitioner's appeal for non‑deposit of court‑fees, and the case cited by learned counsel for the petitioner i.e. PLD 1991 Lah. 51; Muhammad Khalil v. Zahida Parveen is of no help to him since in that case the value of the subject‑matter I of the appeal was less than Rs.25,000.

7. The liability of a father under the law to maintain his minor children is unquestionable and the amount of maintenance fixed by respondent No. 2 i.e. Rs.300 per month for each minor cannot by any stretch of imagination be considered excessive in view of the present cost of living. The allegation of the petitioner that respondents Nos. 3 and 4 are earning a living by begging was not substantiated and was disbelieved by the learned Judge Family Court. Even otherwise, the minors are entitled to receive maintenance allowance from the petitioner who is their father and regular payment of the same would serve to keep them off the streets.

8. In view of the above, there is no merit in this petition which is accordingly dismissed without any order as to costs. The execution proceedings had been stayed vide order of this Court dated 29‑6‑1994, subject to the petitioner depositing a sum of Rs.10,000 in the Executing Court. This sum shall be paid to respondents Nos. 3 and 4 forthwith through their mother Mst. Zohra Bibi. H.B.T./S.1107/L Petition dismissed.