2001 PLP 54 (CLC)

Date of hearing: 31st May, 2000. Brief facts of the case are that a suit for recovery of dowery articles filed by respondent No. l was decreed by the learned Civil Judge, Mandi Bha‑ud‑Din. Aggrieved by this judgment and decree the petitioner filed an appeal, which was dismissed by the learned Additional District Judge, vide his order, dated 6‑12‑1999 on the ground that the petitioner has failed to make up deficiency in the court‑fee as directed by the Court. This order has been assailed in this Constitutional petition.

2. The learned counsel for petitioner argued that the suit for recovery of dowery was included in the Schedule of Family Court Ordinance, therefore, no court‑fee was required to be paid and the court‑fee of Rs.15 was affixed on the plaint as well as on the appeal and no further court‑fee was required on appeal.

3. Hafiz Khalil Ahmad, Advocate, appeared on behalf of respondent in response to pre‑admission notice issued to respondent No.

1. He has submitted that the appeal was rightly rejected by the learned Appellate Court as the petitioner failed to comply with the order for making up deficiency in the court‑fee. He further argued that the provisions contained in section .7(ii) of Court Fee Act, 1870 is only applicable to the plaint, but the same would not be applicable to the appeal arising out of decree passed by Judge Family Court and it is to be paid according to value of subject‑matter of appeal.

4. I have heard the learned counsel for parties at some length, therefore, this case is being decided as a notice case. According to section 19 of the Family Court Act, the court‑fee is to be paid on plaint tiled before the Family Court shall be Rs.15 for any value of the suit. To this extent it is clearly that the plaint of respondent was correctly stamped. So far as provision of section 7(ii) of Court Fee Act are concerned, these are applicable to the plaint regarding maintenance, annuities etc. This section, however, is not applicable to the appeal arising out of the decree passed by Judge Family Court and the court‑fee on the memo. of appeal is to be paid according to the value of the subject‑matter of appeal as it is impugned amount under the decree determinable on the date of decree, which should be value of subject‑matter of appeal. If subject‑matter of appeal does not exceed Rs.25,000 then no court‑fee is to be fixed in view of overriding provisions contained in Ordinance of 1983. However, if the value of subject‑matter of appeal exceed Rs.25,000 then the court‑fee is to be paid in accordance with item 1 Schedule I to the Court Fee Act at the rate of 7‑1/2% of the value of subject‑matter subject to the maximum of Rs.15,

000. If any case‑law is needed on this point see Naqash Ahmad and another v. Muhammad Sharif and another PLD 1996 Lahore 436.

5. In the circumstances discussed above, the amount payable under the decree, which is subject‑matter of the appeal, is Rs.52,150 and the court‑fee was to be paid on that amount, but the appellant did not pay the court‑fee according to subject‑matter of the decree and the appeal was dismissed on this ground.

6. The learned counsel for petitioner, however, states that the petitioner was not granted sufficient time to make up deficiency in the court fee and the learned District Judge dismissed the appeal of petitioner. The learned counsel for respondent, however, submits that he has no objection if an opportunity is granted to the petitioner for making up deficiency in the court‑fee before the learned Appellate Court and his appeal is decided on merits.

7. In this view of the matter order, dated 6‑12‑1999 is set aside, and the appeal of petitioner shall be deemed to be pending. The petitioner shall make up deficiency in the court‑fee, as directed by the learned Appellate Court, within one month from thepassing of this order and his appeal shall be decided on merit.

8. With the above observation this writ petition is disposed of. H.B.T./M-222/L Order accordingly.