P L D 1993 Lahore 421 (PLP)

Petitioner through this Constitutional petition seeks to call in question an order of the learned District Judge, Okara, dated 12-9-1991 dismissing his appeal on the ground that he failed to pay requisite court-fee on the memorandum of appeal.

2. Facts necessary for the disposal of this petition, briefly stated, are that the petitioner's wife Mst. Sakina Bibi and her minor son Jawar Rehman respondents Nos. 3 and 4 herein brought a suit for maintenance against the petitioner in the family Court, Okara. Petitioner contested the suit on the ground, inter alia, that -he had divorced the plaintiff Mst. Sakina Bibi 1-1/2 years back and that she had agreed before the Union Council not to claim any maintenance for the minor child.

3. Learned 'Judge Family Court after framing the necessary issues and recording the evidence adduced by the parties in support of their respective versions repelled the petitioner's contentions and decreed the suit holding that, both the plaintiffs were entitled to maintenance allowance at the rate of Rs.200 and Rs. 150 per month respectively from the date of the institution of the suit which maintenance allowance they shall continue to receive in future also. It was, however, clarified that "the plaintiff No. 1 (Sakina Bibi) shall cease to have any such right of maintenance after the period of 'Iddat' in case her marriage is legally dissolved and the plaintiff No. 2 (the minor) shall cease to have any such right of future maintenance on attaining the age of majority or when his custody legally falls into the hands of the defendant". This was vide judgment dated 28-7-1991.

4. Defendant/petitioner preferred an appeal against the judgment and decree of the trial Court. The appeal was fixed before the District Judge for preliminary hearing on 3-9 1991, when he directed the petitioner "to pay the court-fees, ten times on the annual maintenance allowance, which comes to Rs.42,000 till 12-9-1991". It is an admitted position that the petitioner did not pay the court-fee in compliance with the aforementioned order of the learned District Judge with the result that his appeal was dismissed vide the impugned order dated 12-9-1991 on the short ground that he failed to pay the court-fee. 5. 1 have heard the learned counsel for .the petitioner. It is not denied that in the instant case, court-fee on the memorandum of appeal was payable ad valorem on the subject matter in dispute namely ten times ' the amount of annual maintenance allowance which came to Rs.42,000 as worked out by the learned District Judge. Learned counsel, however, contended that the District Judge should also have determined and specified the exact amount of court-fee required to be paid by the petitioner but this was not done and, therefore, the petitioner's failure to comply with the order of the District Judge could not be visited with the penalty of dismissal of his appeal. Precise contention of the A learned counsel was that the amount of court-fee payable on the memorandum appeal not having been specified in the order of the learned District Judge, petitioner could not be said to have acted contumaciously or with mala. fide as to attract the penalty of dismissal of his appeal. I find no force in this contention. Learned counsel has not denied that a memorandum of appeal to be filed before the District Court under the West Pakistan Family Courts Act falls under Article I of Schedule I of the Court Fees Act and the court-fee in such cases is payable ad valorem on the subject-matter of the dispute. In fact, it is, so held by the Supreme Court of Pakistan in Mirza Daud Baig v. Additional District Judge, Gujranwala and others (1987 SCMR 1161), which case was relied upon by the learned District Judge in his order dated 3-9-1991. The value of the subject-matter in dispute was also clearly stated in the order passed by the learned District Judge in the presence of the petitioner's counsel. The court-fee payable could, therefore, well be ascertained/calculated with a little diligence by referring to Article I of Schedule I of the Court Fees Act as amended which prescribes the proper court-fee as "Seven-and-a half per centum on the amount or value of the subject-matter in dispute subject to a maximum of fifteen thousand rupees." In this view of the matter, there was no real difficulty or any insurmountable hurdle in the way of the petitioner if he genuinely and earnestly wanted to pay the court-fee and if at all the petitioner and/or his counsel felt any doubt or difficulty in computing/calculating the amount of court-fee, they could have approached the learned District Judge and requested him for specifying the exact amount of court-fee. I asked the learned counsel whether any such request or approach was made by the petitioner or his counsel. His reply quite frankly was in the negative. In the circumstances, I am constrained to hold that the petitioner had no intention to pay the court-fee and he deliberately did not comply with the order of the learned District Judge dated 3-9-1991. He cannot, therefore, make any legitimate grievance against the dismissal of his appeal on account of his failure to pay the court-fee for which he was allowed sufficient time and opportunity.

6. In view of what has been said above, the impugned order of the learned District Judge does not merit any interference moreso in writ jurisdiction. This petition is without any merit and the same is accordingly dismissed in limine. AA./M-981/L Petition dismissed.