1. ' This petition, under Article 199 of the Constitution arises from a suit filed by Mst. Shamim Begum respondent No,2 in the writ petition, against her husband Atta-ur-Rehman petitioner herein for maintenance at the rate of Rs,800 per month from 29-1-1988. Suit was instituted in the Family Court at Rawalpindi. By a common judgment passed in the consolidated trial of three connected family suits, the trial Court decreed maintenance to respondent at Rs,400 per month from 29-1-1988.
2. Under section 14 of the Family Courts Act, defendant filed an appeal in the Court below presided over by an Additional District Judge. Plaintiff who was respondent in the appeal objected to the sufficiency of the court-fee paid on the memorandum of appeal. It was submitted that subject matter of dispute in appeal was covered by clause (ii) of section 7 of the Court Fees Act, 1870 and the memorandum of appeal was liable to be taxed with payment of court-fee on ten times the amount found payable as maintenance for one year. Learned Additional District Judge argeed with the objection raised and held that memorandum of appeal was deficiently stamped. In his opinion, the appellant before him was obliged to affix the court-fee according to value of the subject- matter of the suit multiplied by ten times the amount claimed to be payable for one year i.e, Rs,48,000. In taking this view, he relied upon a decision of the Supreme Court in Mirza Daud Baig v.
3. Additional District Judge, Gujranwala and others 1987 SCM R 1161. After holding that the memorandum of appeal was inadequately stamped, he directed the appellant before him to pay the deficit court fee by or before 2-9-1990. Defendant of the suit and appellant in the lower appellate Court having felt dis-satisfied with the opinion expressed in the aforesaid order has come to challenge it before this Court in exercise of its Constitutional jurisdiction. On the authority of the case in Mt.Bhairon Del v. Ram Sewak Lal AIR 1927 Oudh 623, petition was admitted to hearing.
4. ' Seen from the above, only question requiring determination in the petition is whether the impugned order proceeds on correct analysis of clauses (i), (ii) of section 7 of the Court Fees Act, that is, whether the subject-matter in dispute in appeal fell to be taxed in clause (1) or that it was a simple suit for maintenance covered by provisions in clause (ii) of section 7 and consequently, what was the correct amount of court fee payable on the memorandum of appeal in terms of Article 1, Schedule 1 of the Court Fees Act. For facility of reference, aforenoted clauses (i) and (ii) of section 7 are reproduced below:--
(i) In suits for money (including suits for damages or compensation, or arrears of maintenance of annuities or of other sums payable periodically--According to the amount claimed for maintenances and annuities; In suits for maintenance and annuities or other sums payable periodically--according to the value of the subject-matter of the suit, and, such value shall be deemed to be ten times the amount claimed to be payable for one year;"
5. ' There is no dispute that respondent's claim was not for any arrears of maintenance accrued before the suit. She claimed maintenance for the future at a specified rate as was agreed in Ext.P1.
6. Head-note in the case of Shahzadi Begum v. Mahbub All Shah and others AIR 1920 Allahabad 40, reads:- "Where a plaintiff prays for a declaration of right to receive a periodical payment, and also asks for arrears of the sum so payable, the court-fee payable should be calculated, under S.7 (ii), on ten times the amount claimed to be payable for one year in respect of the periodical payment plus the amount claimed as arrears."
7. ' Side-note B of the head note in Mt. Bhairon Dei v. Ram Sewak Lal AIR 1927 Oudh 623 reads:-- "When the plaintiffs case as laid in the plaint leads to no other relief than the arrears of maintenance, the court-fee payable would be according to the amount claimed.
8. ' A suit for arrears of maintenance is not a suit for maintenance and, therefore, S.7 (2) does not apply."
9. ' In Mt. Udobai v. Ram Autar Singh AIR 1934 Lahore 150 (1) headnote reads:-- "The suit comprised two claims (1) a declaration that the plaintiff was entitled to recover Rs,23 per mensem as maintenance allowance from certain properties, and (2) a declaration that she had a charge on the same properties for Rs,3,500 which she bad to borrow as her monthly expenses amounted to Rs,30 while the income from the estate was Rs,7 only, and she had to spend money on certain litigation: ' Held: that the claim was really one for arrears of maintenance and therefore court-fee was payable ad valorem on Rs,3,500 under S.7 (1)."
10. ' The case of Chief Inspector of Stamps, U.P., Applicant. In re: Lal Dhananjay Singh v. Lal Bhim Bikram Singh and another AIR 1953 Allahabad 442 relied upon by the applicant dealt with a pension matter and is not of much help for decision of the present case. In Smt. Chander Wati v. L.Hari Chand and others AIR 1961 Punjab 11, plaintiff had claimed three reliefs:- "(1) A declaration that under the will of her father she was entitled to reside in the family residential house left by her father where she was living and that the rent note executed by her husband was not binding on her.
(2) An injunction restraining the defendants from interfering with her right to reside and enjoyment of the portion of the house under her occupation and from enforcing any right under the rent note.
(3) A decree for Rs,300 as arrears of maintenance at Rs,100 p.m. For the three months prior to the suit."
11. ' It appears that the valuation put on the first two reliefs was not contended but in regard to the third relief upon which a court-fee of Rs,300 only was paid, defendant raised an objection that the plaintiff was liable to pay court-fee at ten times the amount claimed to be payable for one year.
12. The contention of defendant in regard to insufficiency of court-fee was upheld in the Court, below, and on revision to the High Court, it was not interfered with. Dealing with the question of court-fee required to be paid in such like claims, D. Falshaw, J., observed:-- "(4) Since most suits for maintenance involve a claim for arrears of maintenance, it may at first sight seem rather strange that a distinction has been made between a suit for arrears of maintenance and a suit for maintenance, and, evidently by a suit for maintenance is meant a suit brought for the purpose of establishing a right to receive maintenance, past or future, and also as was held in Shahzadi Begum v. Mahbub Ali Shah, ILR 42 All. 353: AIR 1920 All. 40, when a suit is brought both to establish a right to maintenance and for a sum as arrears of maintenance an ad valorem court-fee is payable on the sum claimed as maintenance as well as an ad valorem fee based on the amount ten times the amount claimed to be payable for one year on the claim to the right to maintenance.
(5) When, however, a suit is simply brought for a sum claimed as arrears of maintenance, as in the present case for three months at the rate of Rs,100 per mensem, the question arises whether in the absence of any previously established right to the maintenance claimed the payment of an ad valorem court-fee on ten times the annual value of the maintenance claimed, becomes payable on the ground that the plaintiff cannot maintain the claim for arrears of maintenance without having established his right to maintenance at the rate claimed, and whether the plaintiff can be permitted to establish the right to maintenance, which would presumably operate as res judicata in future claims, under the guise of a suit simply for arrears of maintenance.
(6) If a plaintiff can establish a right to future maintenance by simply bringing a claim for arrears of maintenance for two or three months, and paying a small ad valorem court-fee on the sum so claimed, it seems to me that the provisions of subsection (ii) become superfluous and almost meaningless, since nobody who can establish a right of this kind by bringing a small claim for arrears will ever dream of trying to establish the right by a claim under subsection (ii) involving the payment of ad valorem court-fee on ten times the amount payable annually.
(7) Statutes, however, must be interpreted as a whole and in such a way that parts of them are not rendered superfluous or nugatory, and to my mind the obvious interpretation of these subsections would appear to be that subsection (ii) applies in all cases where a claim to a right to maintenance is being sought to be set up, and that subsection (i) applies to claims for arrears of maintenance where the right to such maintenance has already been established.
(8) Such is not the plaintiff's claim in the present case, in which her claim to maintenance at the rate of Rs,100 per mensein appears to be shadowy on her own averments in the plaint, in which there are only very few references to the subject. In paragraph 7 she alleged that her brothers used to pay maintenance to her at the rate of Rs,20 pet menses after the death of her father, and in paragraph 11 she mentioned a will of her father executed in 1926 in which a provision was made for her residence in the family house during her lifetime and also for the payment of maintenance at an unspecified rate by her brothers as well as Rs,5 per month for charitable purposes. Finally in paragraph 15 it was alleged that her brother and the other defendants were trying by foul means to get her out of the house, and that her brother had refused to pay her suitable maintenance for the last three months from June to August 1957, which the plaintiff claimed at Rs,100 per mensem.
(9) It was argued on behalf of the plaintiff that in such matters the Court could not go beyond the way in which the plaintiff's claim had been stated in the plaint, but this is true only to a limited extent and whatever form of words is used by the plaintiff the Court has to look at the case and see what is the real nature of the plaintiff's claim. There seems to be no doubt that in the present case the plaintiff has first to establish her right to receive maintenance from the defendants before she can claim the sum claimed by her as arrears.
(10) The learned counsel for the petitioner relied on the decision of. Wazir Hasan, J. In Mt.Bhairon Dei v. Ram Sewak Lal, AIR 1927 Oudh 623, in which it was held that when the plaintiffs case as laid in the plaint leads to no other relief than the arrears of maintenance, the court-fee payable would be according to the amount claimed, but since the facts in that case, although it was only for a small sum as arrears of maintenance, involved the plaintiff's establishing her right to receive maintenance, I am not sure that the decision was correct in the light of what I have observed above."
13. ' Having observed thus, the learned Judge agreed with the decision taken in the lower Court and dismissed the revision. More near the point and almost on all fours is the decisoin of the Supreme Court in case of Mirza Daud Baig (supra). After statement of facts in that case, the Supreme Court said:- "It requires no gainsaying that ordinarily a plaint in a suit for maintenance falls under section 7 (i) and (ii) of the Court Fees Act and attracts ad valorem court-fee on the amount claimed to be computed in accordance with Article 1 of Schedule 1 of the Court Fees Act. But section 19 of the West Pakistan Family Courts Act, 1964, alters the law contained in the Court Fees Act, 1870 to the extent that the court-fee to be paid on any-plaint filed before a Family Court shall be Rs,15 (in the Punjab).
14. It is noteworthy, however, that the concession with regard to the reduction in the court-fee is restricted only to the "plaint", and not to a "memorandum of appeal". The omission of "memorandum of appeal" in this section is significant because both a "plaint" and a "memorandum of appeal" are included in Article 1 of Schedule 1 of the Court Fees Act as attracting ad valorem court-fees. It is an accepted principle of interpretation that the express mention of one implies the exclusion of the other (expressio unisus, est exclusio alterious). It is manifest, therefore, that the Legislature intended to exclude from the pureview of section 19 of the Family Courts Act the "memorandum of appeal" and confined the concession with regard to payment of court-fees only on a "plaint".
15. ' There can hardly be any doubt that a Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of section 6 thereof. It was held in Mst. Gamon v. Taj Din PLD 1968 Lah. 987 by our late lamented brother K.E. Chauhan, J. (while sitting in the High Court) that a Family Court was a Court for all purposes. This view was endorsed by a Division Bench of the Lahore High Court (consisting of Sardar Muhammad Iqbal and Ghulam Mujaddid Mirza, JJ.) in Muhammad Anwar Khan v. Additional District Judge etc. PLD 1978 Lah. 716 and reiterated by a Bench of the Sindh High Court (consisting of Abdul Kadir Shaikh, C.J. And Mahmood, J) in the case of Hamida Begum v. First Additional District Judge, Karachi (Constitutional Petition No,1319 of 1975 decided on 24-2-1976).
16. ' We too are of the same opinion. The Family Court is a Civil Court and despite the exclusion of the Civil Procedure Code and the Evidence Act in their application to proceedings before the Family Court it is a judicial Court in every sense. Moreover, the appeal in this case was filed before the Additional District Judge, under section 14 of the West Pakistan Family Courts Act, and the said Court undoubtedly is a Civil Court. The result, therefore, is that a "memorandum of appeal" to be filed before the District Court falls under Article 1 of Schedule 1 of the Court Fees Act and the court- fee in such cases is payable ad valorem on the subject-matter of the dispute."
17. ' This decision of the Supreme Court finally concludes the controversy in regard to payability of ad valorem court-fee on the appeal arising from a maintenance suit. Plaintiff's suit for maintenance fell under section 7, clause (ii) of Court Fees Act, 1870. But for concession under section 19 of the Family Courts Act, 1964 (Rs,15 on the plaint in Punjab), plaintiff would have been obliged to assess her plaint and pay ad valorem court-fee in terms of section 7, clause (ii) of the Court Fees Act.
18. Defendant in the suit against whom maintenance was decreed by the Family Court at a specified rate per month, likewise, was bound to pay ad valorem court-fee assessed on subject-matter of dispute in appeal. Obviously, subject-matter in dispute was plaintiff's right to get maintenance and corresponding liability of defendant to pay it and this subject-matter in dispute was to be assessed and computed in accordance with express terms of clause (ii) of section 7 of the Court Fees Act. Therefore, I hold that the order of the lower Court was right and could not be characterized either without jurisdiction or without lawful authority. Upon I this view, petition is dismissed with costs assessed at Rs,500.