' ASAD MUNIR, J.---This constitutional petition challenges the Additional District Judge, Faisalabad's judgment dated 12-11-2008 whereby the petitioner's appeal against Civil Judge/Family Judge, Faisalabad's judgment/decree dated 10-7-2007 has been dismissed on account of petitioner's failure to pay the deficiency in court-fee.
2. The essential facts that need to be narrated for a disposal of this petition are that the marriage between the petitioner and respondent No,1, was solemnized on 20-10-1998 by means of Nikahnama dated 20-10-1998. The marriage had an early end on 17-8-1999 when respondent No,1 pronounced talak on the petitioner whereafter on 18-10-1999, the petitioner filed against the respondent No,1 a family suit for recovery of dower consisting of Rs, 25 lacs and 100 tolas of gold ornaments. The said dower was claimed on the basis of the entries against Columns Nos.12, 13 and 15 of the Nikahnama dated 20-10-1998. The said family suit was decreed ex parte on 13-7-2001 but the ex parte decree was set aside in appeal and the case was remanded for decision afresh on merits. During the pendency of the family suit, respondent No.1 on 30-4-2003 filed a suit against the petitioner for a declaration that the entries against Columns Nos.12, 13 and 15 in the Nikahnama dated 20-10-1998 were false and fictitious and without the consent of the plaintiff and were, therefore, ineffective upon the rights of the plaintiff. Record shows that respondent- No.1 's suit was pending before the learned Civil Judge before whom petitioner's family suit was also sub judice as a Family Judge. An application was moved by respondent No.1 for the consolidation of his suit with that of the petitioner. The learned Judge Family Court, Faisalabad, allowed the application vide his order dated 7-10-2005 relevant part whereof is reproduced below:-- "The statement of defendant recorded above and in view of the statement, the application of the plaintiff for the consolidation of the 2 suits between the same parties is accepted. The consolidated issues are hereby framed in the instant suit and further proceedings would be conducted in the instant suit which would be considered as part of the other suit titled as 'Samina Akhtar v. Imran Farooq' for recovery of dower pending adjudication in the same court and fixed today for further proceedings." As many as 14 issues were framed but issue No,1, being that core issue, is reproduced below:-- "Whether the entries of Columns Nos. 12, 13 and 15 of the Nikahnama dated 12-10-2005 between the parties is false, fictitious, forged and fraudulent ? OPP"
3. The two suits were disposed of vide consolidated judgment and decree dated 10-7-2007, whereby the respondent No, l's suit for declaration was decreed while the petitioner's suit for recovery of dower was dismissed. An appeal, bearing court-fee of Rs,15, was filed by the petitioner to set aside the judgment and decree dated 10-7-2007 but the appeal through its prayer clause sought the dismissal of the respondent No, l's suit only. By order dated 28-3-2008, the learned Additional District Judge, Faisalabad, treating the appeal as a civil appeal and not a family appeal directed the petitioner to deposit the deficiency in court-fee but the petitioner did not comply with the order and on 6-5-2008 filed an application for amendment of the memorandum of appeal to include the prayer to the effect that her suit for recovery of dower be decreed. Deficiency in the court-fee having not been made good, the learned Additional District Judge, Faisalabad, by order dated 12-11-2008 dismissed the appeal as well as the petitioner's application seeking amendment in the memorandum of appeal.
4. While assailing the legality of the learned Additional District Judge's order dated 12-11-2008, the learned counsel for the petitioner has referred to the provisions of section 5 of the West Pakistan Family Courts Act, 1964, along with its Schedule to contend that the judgment/decree dated 10-7- 2007, has to be regarded as one passed by the Family Judge instead of the Civil Judge and consequently the appeal filed against the said judgment is to be treated as a family appeal rather than a civil appeal. It is further contended that the family suit for the-recovery of dower could not be consolidated with respondent No, l's suit for declaration in respect of the entries of dower in the Nikahnama unless the latter suit is also treated as a family suit. In support, reference was made to Aqqueeluddin and 5 others v. Muhammad Rafique (1984 CLC 2607) to contend that the question of the validity of the contents of Nikahnama falls, within the exclusive jurisdiction of the Family Court. It is also contended that no court-fee was payable on the memorandum of appeal as the declaration sought by respondent No,1 in his suit falls within section 7(iv)(c) of the Court-Fees Act, 1870. Learned counsel has also referred to Ghulam Farid v. Mst. Pathani and 2 others (1993 MLD 1023) to plead that no court-fee is required on negative declaration. It is also contended that in view of Allah Wasaya v. Faiz Bakhsh and another (2001 YLR 2773) there was no need to file two separate appeals and one appeal was enough which should have been treated as a family appeal.
5. Despite issue of notices including through substituted service by proclamation in the press, respondent No,1 did not enter appearance whereupon vide this Court's order dated 27-7-2009, he .Was proceeded against ex parte.
6. Although the petitioner has questioned the legality of the learned Civil Judge's judgment/decree dated 10-7-2007 as well as the learned Additional District Judge's order dated 12-11-2008, it is the latter order which needs to be examined as the petitioner's appeal against Civil Judge's judgment and decree dated 10-7-2007 has not been decided on merits but has been dismissed on the ground of deficiency in court-fee which the petitioner was directed to make good by the earlier order dated 28-3-2008. This raises the question if any court-fee, apart from the fixed court-fee of Rs,15, was required to be affixed on the memorandum of appeal. The answer to this question depends upon whether the appeal in question was a civil appeal or was a family appeal in which case no further court-fee was required as the fixed court-fee of Rs,15, prescribed under section 19 of the West Pakistan Family Courts Act, 1964, had been paid.
7. The question as to whether the petitioner's appeal was a family appeal or a civil appeal cannot be determined without reference to the proceedings before the trial court out of which the appeal had arisen. Petitioner's family suit for recovery of dower and respondent No.1 's civil suit for declaration were consolidated vide Judge Family Court's order dated 7-10-2005. The suit filed by the petitioner was, admittedly, a family suit while the suit filed by respondent No,1 was treated as a civil suit. A family suit is to be dealt with under the provisions of the Family Courts Act, 1964, while a civil suit is not so subject but is to be proceeded with in accordance with the provisions of C.P.C. It appears that the two suits could not be consolidated as both were to be regulated by different laws unless it is presumed that the civil suit was also a family suit.
8. Under section 5 of the West Pakistan. Family Courts Act, 1964, "the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule" wherein "Dower" is specified at Serial No,2. In other words, a Family Court has the exclusive jurisdiction to adjudicate upon any matter relating to or involving dower. In the context of section 5 of the West Pakistan Family Courts Act, 1964, read. With Serial No,2 of the Schedule, there is no reason to limit the scope of dower to a wife's suit for the recovery of dower. There is also no other provision in the Act to suggest that as regards dower no suit except a suit for its recovery can be filed. This means that the door is wide open for any other suit provided it relates to dower as can be said about respondent No.1's suit whereby he sought a declaration that the dower mentioned in the Nikahnama, being false and fictitious, was not liable to be paid. Even though not a suit for recovery of dower, respondent No,1 's pertains to the issue of dower which is expressly covered by the Schedule. I may here refer to a case reported as Aqqueeluddin and 5 others v.. Muhammad Rafique supra where in a suit filed by the husband before the Civil Judge for a declaration and cancellation of the Talaqnama, the other side filed an application under Order VII, Rule 11, C.P.C., for rejection of the plaint on the ground that the suit was barred under section 5 of the West Pakistan Family Courts Act, 1964 and section 3 of the Muslim Family Laws Ordinance, 1961. It was held by the Hon'ble Sindh High Court that since the Civil Judge exercised the powers of both a Civil Judge and a Family Judge, the plaint had to be treated as one filed before the Family Judge and was to be proceeded with accordingly. Another case in point is that of Muhammad Yousaf and another v.
Nighat Fayyaz (1985 CLC 2609) wherein a Division Bench of this Court held that "For material disputes including dower, the jurisdiction exclusively lay with Family Courts created under the special statute whose provisions will obviously prevail against all other laws". Reference may also made to Mst. Amina Begum v. Ghulam Nabi and 2 others (PLD 1974 Lah. 78), Ta.Joo v. Mst. Sataran (PLD 1974 Lahore 104) and Zoran Bibi v. Manzoor Ahmad and 2 others (PLD 1975 Lahore 318) wherein the exclusive jurisdiction of the Family Courts in all family matters has been recognized.
9. It follows that respondent No,1 's suit for declaration though treated as a civil suit was in fact a family suit which explains as to why the two suits were consolidated and treated as one by the learned Judge Family Court. It cannot be said that after its consolidation with respondent No,l's civil suit, the petitioner's family suit lost its character as a family suit and became converted into a civil suit or merged into the civil suit. Unless respondent No,1 's suit is regarded as a family suit, the consolidation of the two suits cannot be deemed as legal as otherwise the two suits were incapable of being consolidated. It is also to be noted that respondent No,1 through his application sought the consolidation of his suit with the petitioner's family suit and not vice versa. Even the order dated 7-10-2005 whereby the two suits were consolidated was passed by the Judge Family Court and not by the Civil Judge. In this perspective, the appeal filed against the Family Judge's judgment and decree has to be regarded as a family appeal on which no court-fee applicable to a civil appeal was required to be affixed. Even otherwise, there is lack of clarity about the amount of the court-fee that was payable if the appeal in question is assumed to be a civil appeal. The Additional District Judge's order dated 28-3-2008 required the petitioner to pay the deficiency in court-fee without specifying the deficient amount. A perusal of respondent No, l's plaint in his suit reveals no valuation for the purpose of court-fee as only valuation of Rs,200 for the purpose of jurisdiction has been given. In the circumstances, the court-fee had to be determined to enable the petitioner to pay the deficiency if it is assumed that the appeal was a civil appeal and not a family appeal.
10. The other issue that this writ petition raises is as to whether two appeals were required to be filed against the two decrees both dated 10-7-2007, emanating from the Judge Family Court's single consolidated judgment dated 10-7- 2007, one dismissing the petitioner's suit for recovery of dower and the other allowing the respondent No,1 's suit. Reliance was placed on Allah Wasaya. v. Faiz Bakhsh and another (2001 YLR 2773) and Bahawal and 5 others v. Akbar Ali and 17 others (2000 YLR 1296), which lay down that where two suits are consolidated and are decided by a single consolidated judgment/decree, one appeal is permissible against such decrees and there is no need to file two separate appeals. The aforesaid ratio applies to the present case where also the consolidated judgment and decree dated 10-7-2007 was appealed against to the extent of decree in favour of respondent No,1 but no appeal was filed to the extent of the dismissal of the petitioner's suit. Needless to add that both the suits are inextricably linked with each other as one suit seeks recovery of dower while other seeks a declaration that no dower is due.
11. As a result of the foregoing discussion, I am of the view that no court-fee was payable on the appeal filed by the petitioner nor was she required to file two appeals. As a result, the impugned order passed by the learned Additional District Judge is declared to be illegal and is set aside and the case is remanded to the learned Additional District Judge before whom the appeal, shall be deemed to be pending and shall be decided on merits and in accordance with law.