P L D 1996 Lahore 436 (PLP)

This judgment shall dispose of Writ Petitions Nos. 2620 and 4983 of 1993, as identical questions of law and fact are Involved in these case.

2. The former petition filed under Article 199 of the Constitution calls in question the order dated 9‑2‑1993, whereby tile learned Appellate Court directed tile petitioners to pay court‑fee of Rs.2,700 on the memo. of appeal, arising out of a suit filed by them against their father for maintenance, at the rate of Rs. 1000 per month. The learned Family Court decreed the suit vide judgment and decree dated 4‑7‑1991 and granted the maintenance at the rate,‑ of Rs .300 per month, payable from the date of institution of the suit‑ The petitioners thereafter filed an appeal claiming that the maintenance amount may be increased to Rs.1,000 per month (Rs.500 for each appellant). The learned Appellate Court vide the impugned order dated 9‑2‑1993 came to the conclusion that the court fee on the memo. of appeal was deficient by Rs.2,700, this amount of court‑fee was calculated in terms of section Ali) of the Court Fees Act. While the facts involved in the latter writ petition are that maintenance was granted to the son of the petitioner by the Judge Family Court vide decree dated 3‑2‑1990, at the rate of Rs.1,000 per month with effect from the date of institution of the suit i.e. 25‑1‑1990. On an appeal having been filed by the father against the said decree the learned Appellate Court found vide the impugned order dated 6‑4‑1993 that court‑fee of Rs.9,000 was required to be paid on the memo. of appeal. Apparently this order was also passed by taking the view that the court‑fee was to be paid on the memo. of appeal under section 7(ii) of the Court Fees Act.

3. Learned counsel appearing for the petitioners in Writ Petition No.2620 of 1993 has submitted that no court‑fee was payable in the two appeals in view of the provisions of section 2 of the Punjab Court Fees (Abolition) Ordinance, 1983 (Ordinance X of 1983). He submitted that provisions of section.7(ii) of the Court Fees Act are not applicable in the circumstances of these cases. Mr. Asif Majeed Awan, Advocate who appears on behalf of the learned Advocate‑General has conceded that the court‑fee is not payable on the memos. of the two appeals, in view of the law declared by Hon'ble Supreme Court in Muhammad Shafqat Baig v. Ch. Mazhar Hussain Minhas, Additional District Judge, Rawalpindi and others 1995 SCMR 1720. In that case the suit before the Family Court was filed for the recovery of past maintenance amounting to Rs.7,000 and future maintenance at the rate of Rs.500 per month. Their Lordships after taking into consideration the provisions of section 19 of the Family Court Act, 1964. Section 7 of the Court Fees Act, Item No. I of Schedule I to the Act and section 2 of Ordinance X of 1983, found that court‑fee on the memo. of appeal is to be paid on the value of the subject‑matter of the appeal i.e. the amount which becomes due under the impugned decree on the date of decree. The amount which had become due on the date of decree was Rs.20,000 and hence, no court‑fee was found payable on the memo. of appeal under section 2 of Ordinance X of 1983, as the subject‑matter of the appeal did not exceed Rs.25,000.

4. Section 19 of the Family Courts Act provides "notwithstanding anything to the contrary contained in the Courts Fees Act, 1872, the court‑fees to be paid on any plaint filed before a Family Court shall be Rs. 15 for any kind of suit". Section 7(ii) of the Court Fees Act provides for the value of the suits for maintenance etc. it reads as follows : "(ii) For maintenance and annuities.‑‑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;" Payment of court‑fee in all criminal cases and cases of civil nature the value of the subject‑matter whereof does not exceed Rs.25,000, has been exempted by Ordinance X of 1983. Section 2 of this Ordinance is as under: "

2. Abolition of court‑fee in certain cases. ‑‑Notwithstanding anything to the contrary contained in the Court Fees Act, 1870 (VII of 1870) or any other law for the time being in. force or in any Rule, Notification or Order, no court‑fee shall be chargeable by any Court or payable in respect of (a) any criminal case; and (b) any case of civil nature the value of the subject‑matter whereof or the relief claimed wherein does not exceed twenty‑five thousand rupees. Explanation. ‑‑The aforesaid abolition of court‑foe shall be applicable at all stages of the case and in respect of all Courts including Revenue Courts. " Item No. I of Schedule I of the Court Fees Act provides for the proper fee payable on plaint and appeal etc. It is reproduced below S.No. Article proper fee 1 2 3 (1) Plaint, written statement a set off or counter‑claim or memorandum of appeal (not otherwise provided for in this Ordinance) or cross‑objection presented to any Civil or Revenue Court except those mentioned in section

3. Seven and a half percentum of the amount or value of the subject‑matter in dispute but the fee shall not exceed maximum of fifteen thousand rupees. " In the case of Muhammad Shafqat Baig (supra), the learned Supreme Court after noticing the abovesaid provisions of law held as under: ‑ "The above contention is devoid of any force. Since section 19 of the Act provided a fixed court‑fee of Rs. 15 on any plaint before the Family Court, section 7(ii) of the Court Fees Act, which deals with the calculation of the court‑fee inter alia on suits for maintenance is not applicable at all in view of the language of section 19, which provides 'Notwithstanding anything contained in the Court Fees Act, 1872'. In this view of the matter, there is no other section in the Court Fees Act dealing with the memo. of appeal arising out of suit to which section 7(ii) of the Court Fees Act is not applicable. However, item I of Schedule 1 to the Court Fees Act provides as under: The above item 1 would have been applicable to case in hand if the provision of section 2 read with the explanation woula not have been attracted. The subject‑matter of memo. of appeal appeal's to be Rs.20,000 as the suit was decreed on 30‑4‑1991. The maintenance was claimed for the period commencing from January, 1988. The total amount at the rate of Rs.500 per month for the above period from 1‑1‑1988 to 30‑4‑1991 comes to Rs.20,000 and, therefore, it was less than Rs.25,(M and, hence, section 2 of the Ordinance was applicable, However, it was contended by Mr. S. Asghar Hussain Sabzwari, learned counsel for respondent No.3, that the decree of the Family Court was not confined to the maintenance for the above period but it had also decreed maintenance at the rate of Rs.500 per month for the period subsequent to the passing of the decree. According to him, this Court while calculating the amount of court‑fee cannot ignore the future maintenance amount. However, he was unable to point out any other provision in the Court Fees Act, which caters for a case like the one in hand. In our review, it cannot be legal and logically held that the court fee on the future maintenance amount on the memo. appeal is payable as it is possible that a plaintiff on the day of decree or on the following day may expire and, therefore, the question of recovery of any future maintenance amount may not arise. " Mr. Justice Fazal Karim who added an additional note observed as follows: "It will be noticed that both under section 2 of Punjab Ordinance of 1983 and Schedule 1, item No. I of the Court Fees Act, it is the value of the subject‑matter which. determines the amount of court‑fee. The first question to be asked, therefore, is what is the value of the subject matter of the appeal in a suit for maintenance. A reading together of these two provisions must lead inexorably to the conclusion that if the value of the subject‑matter of the appeal is more than Rs.25,000 then the memorandum of appeal is liable to court‑fee according to item I of Schedule 1 to the Court Fees Act but if the value of the subject‑matter is less than Rs.25,000 then by virtue of section 2 of the Punjab Act,X of 1983 no court‑fee is payable on the memorandum of appeal. Now the subject‑matter of the appeal in such a suit can be the right to maintenance, the rate of maintenance and the amount decreed. In the right to maintenance is involved the question whether in the facts of the suit, the defendant is liable to provide maintenance to the plaintiff. Learned counsel for the parties were unable to refer to any provision in the Court Fees Act which can be applied to determine the value of this subject‑matter. As to the rate of maintenance, the dispute in appeal can be whether the rate of maintenance should be as awarded by the trial Court or what the appellant says the rate should be. Suppose in this case the appellant's case was that in view of his financial status, the rate of maintenance should be Rs.300 per mensem. But as the trial Court awarded maintenance at the rate of Rs.500, the subject‑matter of the appeal would obviously be the difference between the two amounts, namely Rs.200 per mensem. " The legal position that emerges from the above discussion is as under: (i) In suits for maintenance under section 19 of the Family Courts Act fixed court‑fee of Rs. 15 is payable on the plaint irrespective of the value of the suit but the same is also exempted when the relief claimed falls within the purview of section 2 of the Punjab Ordinance X of 1983 i.e. when the relief claimed does not exceed Rs.25,000. (ii) Provisions of section 7(ii) of the Court Fees Act are applicable to the plaints regarding the maintenance and annuities etc. This section, however, is not applicable to the appeals arising out of decrees in maintenance suits. (iii) Court‑fee on memo. of appeal arising out of a decree for maintenance granted by the Family Court is to be paid according to the value of the subject‑matter of the appeal. It is the impugned amount under the decree, determinable on the date of the decree, which will be the value of the subject‑matter of the appeal. (iv) If the value of the subject‑matter of the ‑appeal does not exceed Rs.25,000 then no court‑fee is payable on the memo. of appeal in view of the overriding provisions of the Punjab Ordinance X of 1983 ‑ D However, if the value of the subject‑matter of the appeal exceeds Rs.25,000 then court‑fee is to be paid, in accordance with Item No. 1 of Schedule 1 to the Court Fees Act, at the rate of 7‑1/2% of the value of the subject‑matter, subject to the maximum of Rs. 15,000.

5. The law as. discussed above may now be applied to the facts and circumstances of the cases in hand. The amount payable under the decree which is the subject‑matter of Writ Petition No.2620/93, is about Rs.5,

100. Similarly, the amount payable under the decree which is subject‑matter of Writ Petition No‑A983 of 1993, on the date of decree is Rs.25,000, and hence, no court‑fee was payable The impugned orders have been passed by ignoring the law on the point and hence these are liable to be set aside in writ jurisdiction. For what has been discussed above, both the writ petitions are accepted and the orders impugned therein are declared to be ' without lawful authority and of no legal effect. The respective Appellate Courts shall decide the appeals on merits without demanding payment of court‑fee on the memos. of appeals. The parties are left to bear their own costs. A.A./N‑7/L petitions accepted.