' The above titled appeal has been filed against the order passed by Judge Family Court Rawalakot dated 10.6.2015.
2. Stated facts are that Shakeela Zafeer and Rania Imtiaz filed a suit for recovery of maintenance in the Court of Family Judge, Rawalkot on 3.1.2006. Phraseology of the decree reads as under- {{URDU TEXT}}
3. An application for execution of the decree was filed in the Family Court by the decree 'holders.
The appellant/judgment debtor claims that he has been paying the decretal amount in the Family Court and there is nothing outstanding against him under the head of monthly maintenance allowance. The Family Court, vide impugned order dated 10.06.2015 ordered that a maintenance of Rs. 81,000/- is payable by Muhammad Imtiaz, the appellant, herein. The Court below further directed to pay the whole amount in four instalments and adjourned the case for 10.07.2015 for payment of instalment worth Rs. 26,000/-. The appellant has filed the instant appeal against the same order.
4. I have heard learned counsel for the parties. It is the contention of learned counsel for the appellant that he has paid all the decretal amount under the head of monthly maintenance allowance and the Court below has wrongly concluded that an amount of Rs 81,000/- is outstanding against the appellant/ judgment debtor.
5.. On the other hand, learned counsel for the respondent is of the view that the appeal is not competent for two reasons that; (a) an appeal lies against the judgment or decree of a Family Court. He has argued that the order dated 10.06.2015 is an interim order which, is not appeal able before the Shariat Court. He has placed reliance on 2003 SCR 536 in this regard. (b) The second point raised by learned counsel for the respondent is that an appeal before the Shariat Court is not competent without payment of Court fee. While elaborating Section 19 of the Family Courts Act, 1993, learned counsel has expressed that the world "plaint" has been exempted from levying of Court fee and the memorandum of appeal has not been included in the section, which signifies that without affixing Court fee, an appeal before the Shariat Court is not competent. He has relied on 1987 SCM R 1161 and 1988 CLC 1645 Karachi.
6. A perusal of decree transpires that amount of maintenance for the period from October 2000 to October 2006 amounting to Rs. 4,32,000/- and maintenance allowance of Iddat for a period of three months amounting to Rs. 9,000/- is not under dispute, however, future maintenance of minor daughter at the rate of Rs. 3,000/- per month has been disputed by the appellant. Muhammad Imtiaz, the appellant, herein, contended before the Court below that he has paid the whole outstanding amount to the respondent, herein, whereupon the Court below calculated the whole amount paid by the appellant, herein. The Family Court has recorded that Muhammad Imtiaz has paid monthly instalments of Rs. 50,000/- from 05.04.2013 to 03.03.2014 amounting to Rs. 6,00,000/, The appellant further paid an amount of Rs. 39,000/-on 09.04.2014 and paid an amount of Rs.
30,000/- in ten equal instalments from 09.05.2014 to 10.03.2015. In this way total amount paid by Muhammad Imtiaz was calculated as Rs. 6,69,000/-. It was further recorded by the Court below that an amount of Rs. 4,32,000/-has been paid in terms of decree from October 2000 to 2006, whereas, an amount of Rs. 3,90,000/- for 103 months maintenance allowance of Mst. Rania, minor has also been paid alongwith a sum of Rs. 9,000/- to Mst. Shakeela as maintenance for the period of Iddat. In such a way total payable amount was calculated as 7,50,000/-, out of which Rs.
6,69,000/- has already been paid. So, the amount of Rs. 81,000/- was calculated as payable by Muhammad Imtiaz, the appellant, herein. Obviously, the Court below has calculated the amount paid on the basis of its record. Learned counsel for the appellant did not furnish any material before the Court to rebut the conclusion arrived at by the Court below. The appeal is, therefore, not worth consideration on merits.
7. I agree with the argument advanced on behalf of the respondent that an appeal before the Shariat Court does not lie against an interim order. Section 14 of the Family Courts Act, 1993 provides that a party aggrieved of a decision or a decree passed by a Family Court may prefer an appeal to the Shariat Court. The words "decree and judgment" have well been explained in Mst.
Nasim Bashir's case 2003 SCR 536. It has been explained by their lordships that expeditious disposal of cases in a Family Court requires that there should be no frequent appeals against the orders passed by Family Courts. The impugned order dated 10.06.2015 shows that the Court below has calculated the outstanding amount against the appellant. This order does not fall within the definition of a decree or a judgment, so the appeal is not competent in view of Section 14 of the Family Courts Act.
8. I also agree with the argument that an appeal before the Shariat Court is not maintainable without affixing the required Court fee. Although Section 19 of the Shariat Court Act has exempted a plaint filed before a Family Court from Court fee, but the section does not apply to a memorandum of appeal under the Shariat Court Act. Analogous provision of Section 19 of the West Pakistan Family Court Act, 1964 has been attended by the Supreme Court of Pakistan in Mirza Dawood Baig's case 1987 SCM R 1161 and by Lahore High Court in Parvaiz Ahmed vs. Tahir Shaheen 1988 CLC 1644 Lahore. It has been concluded by the Supreme Court of Pakistan that a Court fee of rupee 1 has been provided under Section 19 of the West Pakistan Family Court Act, 1964 and through an amendment in Punjab, rupees 15 have been inserted. After detailed examination, it was concluded by their lordships in the Supreme Court of Pakistan that the legislature has intentionally inserted the word "plaint" in Section 19 of the Family Court Act, 1964 and the words "memorandum of appeal" have not been inserted therein. So, Court fee ad valorem is levyable on a memorandum of appeal against the decree and judgment passed by a Family Court. Perhaps the intention of legislature- has been ascertained on the philosophy that when a suit for maintenance allowance of a minor is decreed, a right accrues to him and in order to challenge such an accrued right, the Court fee is levyable. At the same strength when a deserted or divorced wife is held entitled to maintenance allowance or the amount of dower, some costs must be paid to challenge such an accrued right.
The relevant provisions of Court Fee Act have been discussed by the Supreme Court of Pakistan in the cited case and in the absence of any case law from the Azad Kashmir jurisdiction, this judgment is binding on the High Court or for that matter Shariat Court of AJ&K, as the case may be.
In view of the above discussion, the appeal is dismissed with costs.
Order announced.