1. ' Mst. Shabana Parveen, the respondent No,1 in the present petition on 5th May, 1987 filed a suit for dissolution of her marriage, dower and maintenance against her husband Abdul Quddus, the petitioner herein in the Court of XIIth Civil and Family Judge, Karachi (South). She prayed for the following reliefs:--
(a) Dissolution of marriage and return of personal property intact or its equivalent value Rs, 21,500 and interest thereon at 15% per annum with effect from 27-11-1986 and onwards till realization.
(b) Dower of Rs,10,000
(c) Maintenance allowance at Rs,10,000 per month with effect from 27- 11-1986 and onwards uptodate and future maintenance at the same rate per month regularly.
(d) Cost of the suit be borne by the defendant.
(e) Any other relief including/supplemental/consequential/injunction relief deemed fit and proper in the circumstances of the case.
2. ' After the trial of the suit the Family Judge by his judgment passed on 6-8-1988 in Family Suit No,169 of 1987 dismissed her suit to the extent of prayer contained in clause (a) of the prayer clause mentioned above and decreed the suit to the extent of prayers contained therein in clauses (b) and (c) and declared her entitled to receive the amount of prompt dower amounting to Rs,10,000 as well as her maintenance at the rate of Rs,650 per month with effect from 5-5-1987 till payment of the dower amount by the defendant/petitioner.
3. ' The petitioner being aggrieved by the judgment, referred to in the preceding paragraph filed an appeal in the Court of District Judge, Karachi (South) without affixing any court-fees. His appeal was admitted without any objection with regard to the payment of court-fees and was registered as Family Appeal No, 35 of 1988.
4. ' On 1-11-1988 after Mst. Shabana Parveen, the respondent No,1 in this petition was served with the notice of the appeal an application under sections 6, 7 and 28 of the Court Fees Act, 1870 was filed on her behalf whereby an objection was raised that Memo of Appeal required payment of court- fees calculated on an amount of 75,600 as provided by section 7(i) and (ii) of the court-fees Act and prayed for the dismissal of the appeal as no court-fee was paid. It appears that after such an objection was raised on behalf of respondent No,1, an application under section 149 of the Code of Civil Procedure was filed on behalf of the petitioner on 22-11-1988 praying for grant of one month's time to enable the petitioner to arrange and pay the court-fees as he was unable to pay the same immediately. The appellate Judge granted a time of two weeks to the appellant (petitioner) to pay the court-fees subject to the right of respondent to raise any legal objection as to maintainability of the appeal. The appellant was required by that order to pay court-fee by 7th December, 1988 and he actually paid the same on 6th December, 1988.
5. ' On 10-1-1989 another application under section 3 of the Limitation Act was filed on behalf of respondent No,1 praying for the dismissal of the appeal as the court-fee was paid after a delay of 89 days beyond the period of limitation for filing the appeal. The appellant resisted this application and filed his written objections. According to him neither he nor his Advocate knew that the court- fees are required to be paid on appeals arising out of the judgments of the Family Courts. Even the Office of the Appellate Court was not aware of such a proposition and no such objection was raised by it. The appeal was actually admitted on 7-9-1988 without such objection. It was only when the judgment reported in 1987 SCMR 1161 was referred to on behalf of the respondent that the appellant realised that the court-fees were payable on such appeals and an application under section 149, Civil Procedure Code was immediately filed.
6. ' After hearing the parties, the Appellate Judge by his judgment passed on 2-3-1989 dismissed the appeal as being barred by time. The Appellate Judge mainly relied on the decision reported in 1988 CLC 1711 (Mukhi Chatromul and another v. Khoobchand and 6 others). It is the judgment of the Appellate Court which has now been impugned in this petition.
7. ' Mr. Muhammad Sadiq, Advocate appearing for the petitioner has mainly contended that in the circumstances of the present case the Appellate Court had exercised his discretion in his favour and granted him time to pay the required court-fees by his order passed on 22-11-1988. According to him, the Appellate Judge had exercised his discretion contemplated by section 149 Civil Procedure Code which could not be revoked by him at a later stage. Alternatively, he pleaded that even otherwise in the circumstances of the present case it is a fit case where a discretion under section 149 of Code of Civil Procedure vesting in a Court was required to be exercised in favour of the petitioner. Exercise of such a discretion even according to the case reported in 1988 CLC 1711 could only be refused if the appellant was found guilty to have intentionally and mala fide omitted to obey some lawful orders or directions of the Court. In absence of such a situation discretion vesting in a Court was required to be exercised in favour of the petitioner.
8. ' Mr. Hussain Sheikh, Advocate appearing for respondent No,1, Mst. Shabana Parveen, in reply to the contentions raised by Mr. Muhammad Sadiq, Advocate for the petitioner stated that application filed by the petitioner under section 149, Code of Civil Procedure was in fact allowed tentatively subject to the right of the respondent to agitate all her legal rights. The said respondent on account of lapse of time had acquired valuable vested rights which could not be disturbed by granting extension of time under section 149, Code of Civil Procedure. He has relied on the same case reported in 1988 CLC 1711. He further contended that the petitioner had sought time to pay the court-fees on the ground that he was unable to pay the same immediately and such a ground cannot be taken to be a valid ground for obtaining a favourable order under section 149, Code of Civil Procedure. He also raised the plea that the petition itself was not competent. To support his second contention he relied on cases reported in 1980 CLC 1788 and 1981 CLC 1689.
9. ' After passing of the Sind Family Courts Act, 1964 such suits could only be filed before a Family Court created under that statute. Section 7 of the said Act provides that every plaint in such suits before Family Court shall bear the court-fees as specifically provided in section 19. Section 19 reads as follows: "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 Re.1 for any kind of suit."
10. In view of such provisions having been made in the Sind Family Courts Act, 1964, court-fees which normally required payment in terms of section 7(i) and (ii) of the Court Fees Act in accordance with Article 1 of Schedule I of that Act were no more required to be paid. The exemption from payment of court-fees in case of such suits merely related to plaints only as very clearly provided by section 19 of the Sind Family Courts Act, 1964. Such an exemption did not extend to appeals which continued to be charged under the Schedule of the Court Fees Act mentioned above and the Hon'ble Supreme Court of Pakistan by their judgment passed in the case reported in 1987 SCM R 1161 clearly spelt out such a distinction in regard to payment of court-fees on appeals. Till such decision the Advocate for the petitioner pointed out that the litigants and even the Appellate Court and its office believed that such concession extended to appeals as well. Under the circumstances the petitioner was entitled to the exercise of discretion of allowing time to the petitioner to pay the Court-fees under section 149, Code of Civil Procedure.
11. ' The entire controversy in this case relates to the payment of Court-fees which in the present case were not paid at the time of filing of the appeal and were admittedly paid after the expiry of the period of limitation but within the time allowed by the Appellate Court, under section 149, C.P.C.
12. No doubt the provisions made in the court-fees Act, 1870 provide that no documents chargeable with the prescribed court-fee can either be filed or received in any Court unless prescribed court- fee has been affixed thereon. This, however, is subject to certain exceptions and the provisions made in section 149 Code of Civil Procedure is one of such exceptions. In the present case the Appellate Court had granted the petitioner time to pay the court-fee which he actually paid before the expiry of such period but subject to the rights of other side. It has been expressly provided in section 149, Code of Civil Procedure that the Court can exercise such power in "its discretion". In the present case though the circumstances mentioned above could have entitled the petitioner to the benefit of exercise of discretion vested in the Appellate Court under section 149, Code of Civil Procedure but such a discretion was ultimately not so exercised. The superior Courts in exercise of their supervisory powers under Article 199 of our Constitution have all along been reluctant to interfere with a decision of a Court or any Authority taken in exercise of its discretionary powers under the statute itself.
13. ' In the circumstances of the present case where the Appellate Court has declined to exercise its discretion under section 149, Code of Civil Procedure in favour of the petitioner, this Court cannot substitute that discretion in his favour in exercise of constitutional jurisdiction. This petition is, therefore, dismissed with no order as to costs.