1. ' Petitioner Karmat U. Kazi has invoked Constitutional jurisdiction of this Court against an order dated 1-12-1992 passed by the District Judge Karachi (South) in Family Appeal No, 46 of 1992.
2. ' Family Suit No, 389 of 1988 was filed by respondent Mst. Fouzia against the petitioner for recovery of dower debt equivalent to forty totals of gold, 12 jirabes of agricultural land bearing Survey No, 64 in Village Landi Arbab, flat No, 2 at plot No, 93, Clifton, Karachi besides cash of Rs,10,000.
3. ' Parties were married on 4-10-1975 at Village Molazai, Tehsil and District Peshawar. After marriage they lived together and they had three children during the wedlock.
4. ' In her plaint, Mst. Talat Fouzia respondent No, 2 added that at the time of Nikhah, the petitioner had agreed to give her as dower, Rs,10,000 in cash, 40 totals gold, 12 Jirabes of land bearing Survey No, 64, 2 Kanals 11 Marlas of Sikni land in Tehsil Peshawar with a house to be constructed on it and 38 Jirabes of more land. Respondent No, 2 alleged that on 31-5-1988 while she was performing duty in a school, the petitioner came there and handed over to her divorce deed and asked her not to visit his house even for purposes of packing up her personal belongings. Respondent No, 2 added that she demanded dower from the petitioner but the same was refused. Hence the suit.
5. ' In his written statement the petitioner challenged the suit to be not maintainable in a Family Court on the ground that the suit was in the nature of enforcing performance of a contract said to have been executed between the parties on 4-10-1975, which was inadmissible in evidence for lack of proper stamp duty and for want of registration. Petitioner added that the contract dated 4-10-1975 was intentionally not presented for registration because it was superseded by fixation of dower orally at Rs,1,00,000. Petitioner challenged jurisdiction of the Family Court at Karachi to entertain the suit. Suit was challenged to be under-valued. The suit was also contended to be barred by Family Courts Act and the Family Laws Ordinance. Petitioner denied if he had gone to school of the respondent No, 2 for presenting her divorce deed. Petitioner claimed to have paid to the respondent No, 2 dower debt of Rs,1,00,000 fixed at the time of marriage. Fixation of dower debt at Rs,1,00,000, according to the petitioner, was in lieu of Kabin Nama which was not a legal document although executed at the time of the marriage but then cancelled. The petitioner also took a host of other pleas.
6. ' The trial Court framed issues on the point of jurisdiction and about entitlement of respondent No, 2 to obtain the relief claimed. The trial Court examined the respondent No, 2 who failed to produce in Court her remaining witnesses and her side was closed. The petitioner failed to appear or bring his witnesses in the Court and his side too was closed under an order dated 5-10-1991. Under a judgment dated 31-10-1991 the trial Court decreed suit of the respondent No, 2, after finding the issues in her favour. Thereafter, the respondent No, 2 filed Execution Application No, 1 of 1992 for execution of the decree drawn in consequence of the judgment dated 31-10-1991.
7. ' Petitioner moved an application under section 13 of the Family Courts Rules for setting aside of the judgment dated 31-10-1991 and the decree passed in Family Suit No, 389 of 1988 and for permission to lead his evidence. Said application was dismissed by the trial Court under an order dated 19-8- 1992. Said order was challenged by the petitioner in Family Appeal No, 46 of 1992.
8. ' Family Appeal No, 46 of 1992 was fixed for final arguments, when an objection was raised on behalf of the respondent No, 2 that the appellant had not paid proper court-fee stamp as required by section 7(i) and (ii) of the Court Fees Act read with Article 1 of the Schedule I of the same Act.
9. After hearing counsel for the parties, learned District Judge, Karachi South under his order dated 1- 12-1992 called upon the petitioner to make up deficiency in court-fee within the period of two weeks without prejudice to the rights of the- respondent No,
2. Hence this Constitution petition.
10. ' Mr. Azhar Ali Siddiqui, learned counsel for the petitioner argued that the order under appeal was not a decree or having force of a decree, but it was of interlacutory nature and can be equated with an order passed on an application under Order 9, Rule 13 of C.P.C., which was appealable under Order 43, Rule 1 of C.P.C. Without payment of ad valorem court-fee. It was also argued that Miscellaneous appeals fall under Article 10 of Schedule II of Court Fees Act and not under Article 1 of Schedule I of Court Fees Act and such appeals require fixed court-fee if presented before a Court other than a High Court. In support learned counsel for the petitioner cited the cases of:
(1) Mst. Mubin Khanam v. Javed Ahmed Khan, 1991 M LD 1039.
(2) Mirza Daud Baig v. Additional District Judge, Gujranwala and others, 1987 SCM R 1161.
(3) Chanba Sheodarshan Lal v. Balmakund and others AIR 1938 Allahabad 82.
11. Family suit of respondent No, 2 was decreed on 31-10-1991. The judgment of the Family Court does not show if the suit was decreed ex parte. There is mention in the judgment that the petitioner and his counsel remained absent without intimation, and for such reason side of the petitioner to lead evidence, was closed on 5-10-1991. Rule 13 of W.P. Family Courts Rules shows that an ex parte decree or proceeding may for sufficient cause shown be set aside by the Court on an application made to it within 30 days of the passing of the decree or decision. In the instant case the judgment and decree of the Family Court were not ex parte, because the petitioner had contested the suit by filing a written statement and even issues were framed on the basis of pleadings of the parties.
12. Fact that the suit was decided after closing side of the petitioner/defendant, does not make it ex parte decision.
13. ' The only remedy available to the petitioner was to file appeal under section 14 of W.P. Family Courts Act and not to move an application under Rule 13 of W.P. Family Courts Rules. Consequently filing of application under Rule 13 of the W.P. Family Courts Rules by the petitioner, was misconceived. His application was however dismissed on 19-8-1992.
14. ' Section 14 of W.P. Family Courts Act makes provision for filing an appeal against a decision given or a decree passed by a Family Court, but it does not prescribe the period within which such appeal is to be filed. Rule 22 of W.P. Family Courts Rules has prescribed a period of 30 days within which an appeal under section 14 of the W.P. Family Courts Act shall be preferred The period of 30 days, as per rule 22 shall run from the date of passing of the decree or decision. Learned counsel for the petitioner wanted said period of 30 days to be counted from 19-8-1992 viz, the date on which petitioner's application under Rule 13 of W.P. Family Courts Rules was dismissed. Since the petitioner had no right to invoke rule 13 of W.P. Family Courts Rules, it is open to question, if he is entitled to count the period of limitation to start from the date of dismissal of his application made under Rule 13, or from the date of passing of the final judgment and the decree in the family suit.
15. The final judgment by the Family Court was passed on 31-10-1991. Petitioner filed his appeal in the District Court on 30-8-1992. It is however for the District Judge to consider the point of limitation.
16. ' Replying to the objection about non-payment of proper court-fees, the Advocate for the petitioner contended before the Appellate Court, that the appeal under section 14 of the W.P. Family Courts Act was preferred against the order dated 19-8-1992, which was passed on his application moved under Rule 13 of said Rules and hence the petitioner was not liable to pay court-fee as required by section 7(i)(ii) of the Court Fees Act read with Article 1 of Schedule I of the Court Fees Act. The appeal filed by the petitioner cannot be treated against the order dated 19-8-1992 but it is against the judgment and the decree dated 31-10-1991.
17. Under the impugned order dated 1-12-1992, learned District Judge has called upon the petitioner to pay the deficient court-fee under he provisions of law. Such amount of deficient court-fee has not been determined under the impugned order. The appeal in question has been filed against a decree and consequently it required court-fee as per Article 1 of Schedule I of Court Fees Act.
18. In the circumstances no illegality has been committed by the learned District Judge in calling upon the petitioner to make up deficiency in payment c of court-fee. Learned District Judge is, however, required to determine the amount of court-fee which the petitioner is liable to pay beyond the amount already paid. The petitioner has not been able to make out a case for invoking Constitutional jurisdiction of this Court.
19. ' The cases cited on behalf of the petitioner do not help him. In the case of Mst. Mubin Khanam (1991 M LD 1039) the view taken was that a decision by a Family Court dismissing an application of setting aside of ex parte decree would not be .Interim or interlocutory in nature and such decision would be final and appealable under section 14 of the Family Courts Act. In the instant case there was no ex parte decree. In the case of Mirza Daud Baig, (1987 SCM R 1161) it was held that a Family Court is a Civil Court and although it is not subject to applicability of the C.P.C. Or the Evidence Act, yet it is a judicial Court in every sense, and hence an appeal filed under section 14 of the Family Courts Act to the District Court against a decision by a Family Court, falls under Article I of Schedule I of the Court Fees Act and in such cases the court-fee is payable ad valorem on the subject- matter of the dispute. In said case note was taken of the concession made in the Punjab where a fixed amount of Rs,15 was payable as court-fee on each plaint filed in the Family Court but such concession did not affect charging of court-fee on a memorandum of appeal where ad valorem court-fee was payable. In the case of Chaube Sheodarshan Lal v. Balmakund and others (AIR 1938 Allahabad 82) it was held that where a Court has exclusive jurisdiction to decide a question, its decision is binding on all the Courts under the general principle of res judicata, even though the Court deciding the question is not competent to decide a suit in which such question subsequently arises. Such a point has not arisen in the instant case.
20. ' For the foregoing reasons I dismiss this Constitution petition in limine. M.A. No, 257 has become infructuous and it stands dismissed.