' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order of the Additional District Judge Lahore dated 5th June, 1990 whereby he dismissed the appeal filed by the petitioner against the decree of the Family Court on the ground that the deficiency in court-fee had not been made up despite the order passed by him on 16th May, 1990.
2. On 29th January, 1989 a suit for recovery of maintenance was filed by Mst. Zahida Parveen respondent No,1 against Muhammad Khalil petitioner in the Family Court at Lahore. The suit after contest was decreed by the Family Court on 20th January, 1990 and the petitioner was directed to pay maintenance at the rate of Rs,1,000 per month w.e.f, 18-2-1988.
3. Aggrieved by this decision, the petitioner filed an appeal under section 14 of the West Pakistan Family Court Act, 1964. A court-fee of Rs, 15 only was affixed on the appeal. On an objection being raised by the respondent, the Additional District Judge by his order dated 16th May, 1990 directed the petitioner to pay ad valorem court-fee on the amount of maintenance awarded by the Family Court. This order having not been complied with, the memorandum of appeal was rejected by the Additional District Judge on 5th June, 1990.
4. The learned counsel for the petitioner has contended that as the amount of maintenance awarded by the Family Court was less than Rs,25,000 no court-fee was payable on the memorandum of appeal in view of the Punjab Court-Fee (Abolition) Ordinance, 1983.
' The learned counsel for respondent No,1, on the other hand, maintained that though under section 19 of the West Pakistan Family Courts Act, 1964, a court-fee of Rs,15 is payable on the plaint but this provision has no applicability to the memorandum of appeal on which ad valorem court-fee should be paid. Reliance was placed on Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161.
' By means of its judgment and decree dated 20th January, 1990 the Family Court had awarded maintenance at the rate of Rs,1,000 per month w.e.f,, 18th February, 1988 and as such when the appeal was filed on 27th January, 1990, a sum of Rs,19,000 was due from the petitioner. In view of the authoritative pronouncement of the Supreme Court of Pakistan in case Mirza Daud Baig v.
Additional District Judge, Gujranwala and others 1987 SCMR 1161 it cannot be urged with any success that section 19 of the W.P. Family Courts Act, 1964 which provides that notwithstanding anything contained contrary to the Court Fees Act, 1872, a court-fee of Rs,15 only shall be paid on any plaint, should be applied to the memorandum of appeal also. In the precedent case it was held that the memorandum of appeal is distinct and different from a plaint and as section 19 does not make mention of memorandum of appeals, ad valorem court-fee should be affixed on memorandum of appeals as required by the Court Fees Act, 1872. If the matter had rested there, the appellant was undeniably liable to pay ad valorem court-fee on his appeal.
5. The position, however, is different in view of the promulgation of Punjab Court Fees (Abolition)
Ordinance, 1983, section 2 whereof is reproduced as under:-- "Abolition of Court Fee in certain cases. --Notwithstanding anything to the contrary contained in the Court Fees Act, 1870 (VII of 1870) or any other law for the time being in force or in any Rule, Notification or Order no court-fee shall be chargeable by any Court or payable in respect of--
(a) Any criminal case: and
(b) Any case of civil nature the value of the subject-matter whereof or the relief claimed wherein does not exceed 25,000 rupees."
' This provision provides that no court-fee is chargeable in respect of any civil case, the value of the subject matter of which, does not exceed Rs,25,000. This concession according to the explanation is available at all stages of the case and before all Courts. It cannot be denied and is since long well- settled that the appeal is a continuation of the suit and is a stage in the same case. The question as to whether the Family Court is a Court also does not present any difficulty. Section 3 of the Punjab Family Courts Act 1964 empowers the Government to establish Family Courts and to appoint a Judge for each of such Courts. It is thus obvious that the Family Court is a Court and matter falling within its jurisdiction is entrusted to it in its capacity as a Court and not a persona designata. This view finds support in the judgment by this Court in Mst. Gaman v. Taj Din PLD 1968 Lahore 987.
' The next question which arises is whether the cases before the Family Courts are of civil nature. It was observed by the Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 that:-- "In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding."
' Undoubtedly, the rights which are adjudicated upon by the Family Courts are civil rights. In Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161, it was observed that "Family Court is a Civil Court in every sense despite the exclusion of the Code of Civil Procedure and the Evidence Act, 1872 in their application to proceedings before such a Court". Similar view was taken by a Division Bench of this Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi etc. PLD 1978 Lahore 716, wherein it was laid down that the Family Court was a Civil Court notwithstanding having been created by a special statute and mentioned in the Act as distinct from Civil Court.
' From the above discussion it emerges that in view of section 2 of Ordinance X of 1983, no court-fee was payable on the memorandum of appeal filed by the petitioner and the appeal could not be dismissed for failure to make up the deficiency in court-fee. This view finds support from the judgment of this Court in Abdul Ghafoor v. Muhammad Rafiq and others PLD 1983 Lahore 383.
6. The learned counsel for respondent No,1, however, contended that the appeal of the petitioner was even otherwise not competent as he had failed to file a certified copy of the decree of the trial Court alongwith the appeal or even subsequently as directed by the lower appellate Court.
However, as the memorandum has not been rejected on this ground, this question need not be decided. It shall be open to respondent No,1 to raise such an objection before the Additional District Judge in the post remand proceedings.
' As a result of what has been stated above this petition is accepted and the orders of the Additional District Judge, dated 16th May, 1990 and 5th of June, 1990 are declared to be without lawful authority and of no legal effect with the result that the appeal filed by the petitioner shall be deemed to be pending before the Additional District Judge and shall be decided afresh in accordance with law. No order as to costs.
' The parties are directed to appear before the Additional District Judge on 5th of December, 1990.