1995 PLP 1720 (SCMR)

AJMAL MIAN, J.‑‑This is an appeal with the leave of this Court against the judgment dated 21‑9‑1992 of a learned Sine Judge of the Lahore high Court passed In Writ Petition No.459 of 1filed by the appellant, partly allowing the same in the following terms:‑‑ "Therefore, while upholding the liability to pay the court‑fee by the petitioner and its quantum as fixed in the impugned order, the petitioner is allowed time till 24‑10‑1992 to pay the required amount of court‑fee on the memorandum of appeal. To that extent only impugned order is set aside and the case is remitted to the Court below for allowing an opportunity for making good the deficit court fee till the appointed date. Parties shall appear in the Court below on 10‑10‑1992. There shall be no order as to costs of this writ petition in this Court."

2. The brief facts are that respondent No.3 filed a family suit for the following relief:‑‑ The above suit was eventually decreed by the learned Family Judge on 30‑4‑1991, whereby respondent No.3 was granted maintenance at the rate of Rs.500 per month since January, 1988. Against the above judgment/decree, the appellant filed Civil Appeal. No.356 of 1992, which was dismissed on 1‑6‑1992 by the learned Additional District Judge as under:‑‑ "In the present case, the value of appeal is much more than the exemption limit of Rs.25,

000. Therefore, in view of section 7 (1) & (2), Court Fees Act, court‑fee of Rs.6,000 is leviable which has not been affixed despite the direction by this Court. Therefore, the appeal is liable to be dismissed, leaving the parties to bear their own costs. The file be consigned to record room after its completion." Against the above judgment; the appellant filed aforementioned writ petition, which was disposed of in terms of above‑quoted portion of the judgment under appeal. After that, the appellant filed a .petition for leave to appeal, which was granted to consider, whether in view of the abolition of court‑fees by section 2 of the Punjab Court Fees (Abolition) Ordinance, 1983 (Ordinance No. X of 1983), hereinafter referred to as the Ordinance, any court‑fee was payable by the appellant on the memo. of appeal.

3. In support of the above appeal, Ch. Akhtar Ali learned A.O.R. appearing for the appellant, has contended that the learned Additional District Judge had wrongly pressed into service section 7 (1)~ii) of the Court Fees Act, which was not applicable in view of section 19 of the West Pakistan Family Courts Act, 1964, hereinafter referred to as the Act, read with section 2 of the Ordinance. On the other hand, Mr. S. Asghar Hussain Sabzwari, learned A.S.C. appearing for respondent No3, has vehemently contended that section 7 (ii) of the Court Fees Act was very much applicable as section 19 of the Act was not applicable to the memo. of appeal as it was expressly confined to the plaint of a suit. His further submission was that section 2 of the Ordinance has no application as the subject‑matter of the suit was more than Rs.25,000 on the basis of the calculation under section 7 (1) (ii) of the Court Fees Act.

4. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to reproduce section 19 of the Act, section 7 (ii) of the Court Fees Act and section 2 of the Ordinance, which read as follows:‑‑ "Section 19 of the Act:

19. Court‑fees.‑‑‑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." Section 7(ii) of the Courts Fees Act: "(ii) For maintenances 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." Section 2 of the Ordinance: "

2. Abolition of court‑fees 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 where in does not exceed twenty five thousand rupees. Explanation.‑‑The aforesaid abolition of court‑fee shall be applicable at all stages of the case and in respect of all Courts including Revenue Courts." A perusal of above‑quoted section 19 of the Act indicates that notwithstanding anything contained in the Court Fees Act, 1870, fixed court‑fee of rupee one was provided on any plaint filed before a Family Court. The above amount of rupee one was substituted by Punjab Amendment Act 14 of 1973 by Rupees fifteen. It may also be noticed that section. 7 (ii) of the Court Fees Act lays down the basis for calculating the amount of court‑fee for suits for maintenance and annuities by providing that if in suits for maintenance and annuities or other sums payable periodically, the value of the subject‑matter of the suit shall be deemed to be ten tunes the amount claimed to be payable for one year. It may further be pointed out that section 2 of the Ordinance abolishes the payment of court‑fee notwithstanding anything to the contrary contained in the Court Fees Act, 1870 or in any other law for the time being in force or in any Rule, Notification or Order in respect of the suit, the value of the subject‑matter whereof or the relief claimed wherein does not exceed Rs.25,000 besides exempting the payment of court‑fee on criminal cases. The Explanation to the above section makes it clear that the above concession of non‑payment of court‑fee shall be applicable to all stages of the case and in respect of all Courts including Revenue Courts.

5. The question; whether section 19 of the Act is applicable to a memo. of appeal, has been subject‑matter of a judgment of this Court in the case of Mirza Daud Baig v. Additional District Judge, Gujranwala and others (1987 SCMR 1161), wherein it has been. held that section 19 is applicable to a plaint or a suit filed before the Family Court and it is not applicable to a memo. of appeal filed under section 14 of the Act against the judgment of the Family Court, to which item 1 of Schedule I to the Court Fees Act is applicable. In the above case, this Court approved the view taken by a Division Bench of the High Court of Sindh earlier in line with the above view in the case of Hameeda Begum v. First Additional District Judge and another (1988 CLC 1645). In the case of Abdul Ghafoor v. Muhammad Rafiq, and others (PLD 1983 Lahore 383), Rustam S. Sidhwa, .J. (,as his lordship then was), while construing notification dated 4‑2‑1980 issued by the Government of Punjab remitting the payment of court‑fee inter alia on all civil and revenue suits at all stages in all Courts, provided the value of the subject‑matter thereof of the relief claimed therein did not exceed Rs.25,000 held no court‑fee was payable. It may be pointed out that the above judgment was rendered on 27‑4‑1983; whereas aforesaid section 2 of the Ordinance abolishing payment of court‑feel in respect of the subject‑matter covered by the above section came into force on or about 21‑6‑1983. It may further be pointed out that by the time the above judgment was rendered, the Province of Sindh and the Province of N: W.F.P. had already abolished the payment of court‑fee through Ordinances. In the above case it was held that no court‑fee was payable on the memorandum of appeal against the order of the Family Court in view of the above notification.

6. The controversy in issue was also the subject‑matter before a learned Single Judge of the Lahore High Court in the case of Muhammad Khalil v. Mst. Zahida Parveen and others (PLD 1991 Lahore 51), in which it has been held that in view of section 2 of the Ordinance no court‑fee' was payable on the memorandum of appeal filed by, the appellant against the order of the Family Court and the dismissal of the appeal on failure to make up the deficiency in court‑fee was not warranted in law.

7. The effect of section 19 of the Act is that only a fixed court‑fee of Rs.15 was payable on the plaint of the present suit. Admittedly, above section 19 of the Act was not applicable to the memo. of appeal filed by the appellant against the aforesaid judgment of the Family Court. The question, therefore, arises, on what basis the court‑fee was to be calculated for the purpose of the memo. of appeal. According to the learned counsel for respondent No.1, the court‑fee was to be calculated in terms of section 7 (ii) of the Court Fees Act i.e. ten times of the amount to be payable for one year, which comes to Rs.60,000 i.e. Rs.6,000 at the rate of Rs.500 per month for one year multiplied by ten equivalent to Rs.60,

000. As a corollary to the above submission, he has also urged that section 2 of the Ordinance is not applicable as it is applicable to a suit or an appeal, the subject‑matter of which is not more than Rs.25,000.

8. 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 1 of Schedule I to the Court Fees Act provides as under:‑‑ "S.No. Article Proper Fee 1. 2. 3.

1. Plaint, written statement a set off Seven and a half or counterclaim or memorandum percentum of the amount of appeal (not otherwise provided or value of . the subject for in this Ordinance) pr cross‑ matter in dispute but the objection presented to any Civil or . fee shall not exceed Revenue Court except those maximum of fifteen mentioned in section 3. thousand rupees." The above item 1 would have been applicable to case in hand if the provision of section 2 read with the Explanation would not have been attracted. The subject‑matter of memo. of appeal appears 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 31‑4‑1991 comes to Rs.20,000 and, therefore, it was less than Rs.25,000 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 view, it cannot be legally and logically held that the court‑fee on the future maintenance amount on the memo. of 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.

9. The upshot of the above discussion is that since the decree was for less than Rs.25,000, no court‑fee was payable on the memo of appeal. We would, therefore, set aside the judgment of the High Court and also of the Additional District Judge and would remand the case to the learned Additional District Judge with the direction to hear the appeal on merits. However, there will be no order as to costs. (Sd.) Ajmal Mian, J. (Sd.) I agree. I have added a note. Fazal Karim, J. (Sd.) Irshad Hasan Khan, J. FAZAL KARIM, J.‑‑‑I ‑respectfully agree, but as the question that falls for determination is a question of first impression, I would add a few words.

2. Under section 19 of the Family Court Act, 1964 howsoeverhigh the value of the subject‑matter of the suit, the court‑fee payable on the plaint is Rs.15 only. That applies to all suits including suits for maintenance. That section has also the effect of excluding the application of section 7, clauses (i) and (ii) of the Court Fees Act, 1870; clause (i) of section 7 of Court Fees Act treats suits for arrears of maintenance as money suits and the amount of court‑fees payable on such suits is according to the amount claimed. Clause (ii) of section 7 of the Court Fees Act provides for suits in which future maintenance is claimed; it treats such suits as suits in which sums are payable periodically. The court‑fee payable under that clause is 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". What is noticeable about clause (ii) is (1) that it applies to suits only; (2) that it proceeds on the footing that the subject‑matter of such suits is not capable of being valued; that is clear from the fact that the legislature had to introduce a fiction and put an artificial value on the subject‑matter falling under this clause namely, ten times the amount claimed by the plaintiff in the suit. That value cannot obviously be the value for the purpose of appeals. To illustrate, suppose that the plaintiff claims maintenance at the rate of Rs.1,000 per month. The value of the subject‑matter of the suit under clause (ii) will be Rs.1,20,000 and the plaintiff will have to pay court‑fee on that amount. Suppose further, that the defendant pleads that he is not liable to pay at more than Rs.500 per month but the Court decrees the suit at the rate of Rs.1,

000. The defendant appeals, his principal ground of attack being that the suit could not be decreed at more than Rs.5W p.m. It should be plain that the subject‑matter of the appeal is the difference in the amount which was awarded and the amount which, according to him, should have been awarded. Plainly enough, the fiction created by clause (ii) of section 7 (1) cannot be carried to the stage of appeal. That would require the creation of another fiction, which the Courts, as the interpreters of laws, cannot create. So, even if clause (ii) of subsection (1) of section 7 of the Court Fees Act applied to maintenance suits under the Family Courts Ad, that clause would have been inapplicable to memorandums of appeal.

3. The Court Fees Act thus regards suits for arrears of maintenance and suits for future maintenance as two distinct categories.

4. There remain for consideration section 2 of the Punjab Court Fee (Abolition) Ordinance, 1983 (Punjab Ordinance No.X of 1983) and item 1 of Schedule I to the Court Fees Act, as applicable to the Province of the Punjab. Section 2 of the Punjab Ordinance X of 1983 enacts that notwithstanding anything to the contrary contained in the Court Fees Act, 1870 (VII of 1870) or any other law for the time being "no court‑fee shall be chargeable by any Court or payable in respect of .(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" and enacts further that this abolition of court‑fee would be applicable at all stages of the case, including the stage of appeal and revision, if any. Item No.1 of Schedule I to the Court Fees Act as applicable to the Punjab provides that the court‑fee payable on a plaint, written statement, pleading a set off or counter Claim or memorandum of appeal (not otherwise provided for in this Act) ..is 7‑1/2 per mensem on the amount or value of the subject‑matter in dispute up to a maximum 15,000 rupees. It will be noticed that both under section 2 of the Punjab Act of 1983 and Schedule I, Item No.1 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 that 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 1 of Schedule I 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.

5. 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. If 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 Fee 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 memsem. But as the dial Court awarded maintenance at the rate of Rs.5M, the, subject‑matter of the appeal would obviously be the difference between the two amounts, namely Rs.200 per mensem.

6. Applying these principles to the facts of this case, the value of the subject‑matter was, as has been held by my learned brother Ajmal Mian, J. less than Rs.25,000 and no court‑fee was required to be paid on the memorandum of appeal. (Sd.) Fazal Karim, J. M.BA/M‑3099/S case remanded.