Respondent No. 2 Ghulam Farooq (minor) filed a suit for grant of maintenance against the petitioner through his mother. The suit was contested by the petitioner mainly on the ground that he was not his son, there being no marriage ever solemnised between the petitioner and mother of respondent No. 2. The learned trial Court dismissed the suit after holding that there was no proof on record that .The petitioner ever married the mother of respondent No. 2 and as such he being not the son of the petitioner was not entitled to grant of maintenance. The judgment and decree was assailed through appeal before the Additional District Judge, Lahore who accepted, the same and found respondent No. 2 to be entitled to receive maintenance allowance at the rate -of Rs. 300. Per mensem with effect from 1-6-1972 the date of institution of the suit.
2. The validity of the judgment and decree passed by the learned Add1-District Judge has been challenged inter alia on the ground that the appeal before the Addl. District Judge being insufficiently stamped was no appeal in the eye of law and the impugned judgment and decree passed thereon has no bearing. The relevant record shows that court-fee of Rs. 15 was affixed on the memorandum of appeal whereas according to law as laid down in Muhammad Anwar Khan v.
The Addl. District Judge, Rawalpindi etc. (1) memo of appeal before the District Judge under the Family Courts Act, 1964 falls under Article 1 of Schedule I of the Court Fees Act, 1870 and as such is liable to bear court-fee according to the value of the subject-matter in dispute meaning thereby that court-fee has to be paid ad valorem.
3. The learned counsel for the respondents while relying upon the provisions of section 12 as contained in Court Fees Act, Amir Ali v. Gul Muhammad (2), Mahmood Ahmad Kauser and 6 others v. S. M. Ishfaq Ali and 3 others (3) and Azad Government v. Abdullah and others (4) has contended that every question relating to valuation for the purpose of determining any fee chargeable on a plaint or memorandum of appeal can only be decided by the Court in which such plaint or memorandum of appeal as the case may be, is filed and such decision may be final between the parties to the suit, the objection with regard to deficiency in the payment of court-fee having not been taken at the appellate stage no such objection can now be taken in the present proceedings, the plaint, appeal or review application, as the case may be, if admitted as properly stamped cannot be dismissed being insufficiently stamped at the stage of arguments as the Court concerned has to act in this matter at the earliest possible stage, and since the appeal filed by respondent No. 2 has been finally decided on merits vide the impugned judgment no order can be made at this stage to make good deficiency in the payment of court-fee. The Court concerned having become functus officio cannot continue process of adjudication for procedural matters of suit.
4. The main question involved in this case is whether appeal filed by respondent No. 2 before the Addl. District Judge, Lahore, was an appeal at all in the eye of law being insufficiently stamped.
According to law as laid down in Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others (5) a plaint or a memo. Of appeal cannot be treated as properly presented as long as proper court-fee is not paid. In that case appeal filed before the High Court was held to have not been instituted until the deficiency in the payment of court-fee was made up. At the time of hearing of appeal preliminary objection was raised to the effect that the appeal was not properly stamped and as such there being no proper presentation of appeal no order could be passed thereon. It may be mentioned that the appeal in that case apart from being insufficiently stamped also suffered from many other infirmities such as limitation. The principle of law as laid down in the authorities relied upon by the learned counsel for respondent No. 2 is not open to any exception.
The Court concerned trying the suit or hearing an appeal has jurisdiction to determine the amount of any fee chargeable on the plaint or memorandum of appeal, as the case may be, and objection, with regard to insufficiency of court-fee should betaken up at the earliest possible moment and after admission of plaint or appeal to regular hearing in spite of deficiency in the payment of court-fee it should not be dismissed in haste. Nevertheless the question which arises for consideration in the present proceedings is whether there was properly presented appeal against the judgment and decree passed by the learned trial Court before the Additional District Judge Lahore and if not so, what is its effect and whether in the absence of any proper appeal having been filed the impugned judgment and decree would be illegal and without lawful authority.
According to law every first appeal from original decree is to be filed under Order XLI rule 1, C. P. C.
And as held in 1978 Lahore such memorandum of appeal, falls under Article 1 of Schedule I of Court Fees Act and is liable to bear court-fee according to the value of the subject-matter in dispute meaning thereby that the court-fee is to be paid ad valorem. In the present case amount of Rs. 350 per mensem has been claimed to be paid by respondent No. 2 as maintenance allowance.
According to section 6 of the Court Fees Act no document of any of the kinds specified as chargeable in the First or Second Schedule of the Act can be filed, exhibited or recorded in any Court of law or otherwise can be received or furnished by any party unless in respect of such document fee is paid according to the amount indicated by the Schedule. Section 7 of the Act provides length of computation of fees. The suit for maintenance filed by respondent No. 2 involves ascertained sum and that being so provisions as contained in section 7 of the Court Fees Act would be applicable and amount of court-fee will be computed under Article 1 of Schedule I of the Court Fees Act.
(1) PLD 1978 Lah. 716(2) PLD 1968 Pesh. 106
(3) PLD 1974 Note 32 at p. 69(4) PLD 1969 Azad J & K 30
5. Since the court fee was not paid according to law on the memo--randum of appeal filed before the learned Additional District Judge, therefore, it cannot be said that it was properly presented. It is true as laid down in many cases by the superior Courts that where appeal has been admitted to regular hearing in spite of being deficient in the payment of court-fee it should not be dismissed on that ground at the stage of arguments. It means that in spite of the fact that objection with regard to its being insufficiently stamped has not been taken at an initial stage but appeal being otherwise incompetent cannot be decided unless deficiency in the payment of court-fee is made up.
6. It has been argued by the learned counsel for the respondents that the petitioner not being aggrieved on account of non-payment of proper court-fee on the appeal and objection in this behalf having not been raised at the initial stage before the Court concerned, he is now estopped to raise any such plea in the present proceedings. It is submitted that as payment of court-fee concerns the revenues of the State, therefore, the petitioner has no locus standi to challenge the judgment passed in appeal on that account. The contention raised above has no substance. The petitioner feels aggrieved against the judgment and decree passed by the Appellate Court and since according to him such judgment and decree could not be passed in an insufficiently stamped appeal, therefore, he has locus standi to raise the aforesaid plea. There is no doubt that such plea was not raised during the hearing of the appeal but the fact remains that such plea being purely of law can be raised subsequently. According to section 28 of the Court Fees Act any document which ought to bear a stamp under the Act shall be of no validity, unless and until it is properly stamped. In the case of memo--randum of appeal being insufficiently stamped it may not be dismissed in toto but as laid down in Amir Shah Muhammad v. Syed Shah Muhammad AIR 1931 Lnh. 237,decree can be passed in such appeal for the amount for which court-fee has been paid. It is correct that so far as the Court which has decided the appeal, is concerned it has become functus officio to determine the amount of any fee chargeable on the appeal, but the question as to whether there was proper appeal before the Additional District Judge and what is the effect of the judgment delivered in an insufficiently stamped appeal, can be determined in the present proceedings under Article 199 of the Constitu--tion. There was insufficiently stamped appeal according to the facts of the case reported in PLD 1978 Lahore. It was held that it was never properly presented. The judgment and decree passed in such an appeal would, therefore, have no bearing unless deficiency in the payment of court-fee is made up. I hold accordingly. The amount of court-fee on the memorandum of appeal in this case is to be paid according to section 7 (1) and Article 1 of Schedule I of the Court Fees Act.
7. Since there was no proper appeal being insufficiently stamped before the Additional District Judge, Lahore, therefore, the impugned judgment and decree cannot have any bearing, being illegal and without jurisdiction as Court can decide only a properly constituted appeal. The impugned judgment and decree is, therefore, hereby set aside.
8. The case is remanded to the learned District Judge, Lahore to decide the same afresh by himself or may entrust the same for its decision in accordance with law to an Additional District Judge.
Respondent No. .2 may be granted time in the interest of justice to make up the deficiency m the payment of court-fee and in case the needful is done in that behalf the appeal may be decided on merits according to law.
9. The writ petition stands accepted in the terms stated above without any order as to costs.