' The petitioner who was plaintiff before the Judge. Family Court and appellant before the learned Additional District Judge, Khanpur has impugned the order dated 17-11-2000 passed by learned Additional Judge, Khanpur, whereby petitioner's prayer to file appeal in forma pauperis, against the judgment and decree of the learned Judge, Family Court, Khanpur dated 30-3-2000, was disallowed and petitioner was directed to affix the court-fee of Rs,15,000.
2. The facts briefly stated are that petitioner filed a suit for recovery of dower in the form of 5 acres land and plot measuring 16 Marlas with compound wall and eight constructed rooms thereon, or in the alternative for the recovery of Rs,15,00,000 as price of the above mentioned property. She also sought a decree for future maintenance at the rate of Rs,5,000 per month and past maintenance of Rs,40,000 at the same rate. However, the learned trial Court/Judge, Family Court, Khanpur vide judgment and decree, dated 30-3-2000 decreed her suit to the extent of 5 acres of land and cash of Rs,200 only. Against the said judgment and decree of the learned Judge, Family Court, Khanpur the petitioner sought to file forma pauperis appeal claiming herself to be pauper, before the learned Appellate Court/Additional District Judge, Khanpur. The learned Additional District Judge requisitioned report from the Revenue Department to the effect whether the petitioner was pauper or not. The Tehsildar, Khanpur on 7-9-2000 reported that petitioner did not own any agricultural or residential property. Despite the said report, the learned Additional District Judge on 17-11-2001 proceeded to turn down her request for declaring her pauper and directed her to affix the court- fee according to the value, till the next date. This order of the learned Additional District Judge has now been impugned in this writ petition.
3. Learned counsel for the petitioner has argued that the learned Additional District Judge has acted illegally and with material irregularity by turning down the request of the petitioner by holding that no affidavit has been submitted by the appellant except her own and in her affidavit she has not specifically stated that she is not in a position to affix the court-fee, whereas Tehsildar has reported after thorough inquiry about pauperism of petitioner. He has argued that in case if the learned Additional District. Judge was not satisfied with the report of the Tehsildar, a fresh report could be obtained or the petitioner might have been directed to produce further evidence.
He has further argued that without cross-examination, the affidavits of Matloob and Haji Ramzan could not be considered at all. He has further argued that the learned Additional District Judge while turning down the application of the petitioner has acted in an unnecessary hasty manner and has ignored the fact that petitioner being a poor lady was being deprived of her right to claim dower agreed upon by the respondent at the time of marriage. The learned counsel contends that in family matters neither the provisions of. C.P.C. Are strictly applicable nor the learned Additional District Judge had any justification to enforce penal provisions of Order XXXIII and XLIV, C.P.C. He has finally argued that sufficient safeguards are provided under Order XXXIII, rule 10, C.P.C., whereby the petitioner in case of her success is bound to pay the court-fee and the same is recoverable by the Provincial Government being first charge on the subject-matter of the appeal.
4. Learned counsel for the respondent has supported the order of the learned Additional District Judge by arguing that since the petitioner failed to rebut the affidavits of Matloob and Ramzan by producing counter-affidavits of other persons, hence the learned Additional District Judge was right in refusing her prayer.
5. I have considered the arguments of both the learned counsel for the parties but I am not impressed either by the findings of the learned Additional District Judge or the arguments put forth by the learned counsel for the respondent. The learned Additional District Judge while passing the impugned order has said nothing about the truthfulness of the report of the Collector/Revenue Officer nor has given any cogent reason while directing the petitioner to affix the court-fee. There is also no force in the findings of the learned Additional District Judge that weight was to be given to the affidavits of Matloob and Haji Ramzan, without putting both these persons to cross- examination. Even otherwise, the report of the Collector/Revenue Officer is to be given weight unless the same is perverse or against facts. The learned Additional District Judge could also obtain a fresh report from the Collector if he was not satisfied with the same but under no provision of law he could discard the same just on the basis of affidavits of two non-relevant persons. To me, the learned Additional District Judge has acted illegally and with material irregularity by refusing the prayer of the petitioner. It is also to be seen whether in family matters the provisions of Order XXXIII and XLIV, C.P.C. Can be applied so strictly. The petitioner being a woman voicing her grievance against her deprivation of dower by respondent No,2 and to deprive her of her right of appeal by burdening her to pay the court-fee would amount to further adding to her miseries, which is neither the object of Family Courts Act nor in consonance with the principles of Muslim Law, which declares dower as a basic right of a women as a consideration in lieu of contract of marriage. I am, therefore, not satisfied that the order, dated 17-11-2000 passed by learned Additional District Judge is either proper or based on good reasoning, rather the same is violative of principle of Muslim Law, hence, the same cannot sustain and is accordingly set aside on acceptance of this writ petition. The appeal of the petitioner filed against the judgment and decree of the Judge, Family Court, Khanpur, dated 30-3-2000 shall be deemed as an appeal in forma pauperis and the same shall be decided strictly in accordance with law. Copy of this order be immediately sent to the learned Additional District Judge, Khanpur, through learned District Judge, Rahim Yar Khan.