' Through this Constitutional petition, the petitioner has challenged the order dated 18-5-1994 passed by the learned Additional District Judge, ' Bahawalpur whereby the petitioner's appeal against the judgment and decree dated 28-2-1993 of the learned Judge Family Court, Bahawalpur was dismissed on account of non-deposit of the requisite court-fee.
2. Brief facts leading to the filing of the abovenoted petition are that the respondents Nos. 3 and 4 (Plaintiffs) filed a suit for the recovery of maintenance Rs,500 per month for respondent No, 3 and Rs,500 for respondent No,4 for the past one year as well as for the future. In the body of the plaint it was stated that respondent No, 3 (plaintiff) married to the petitioner-defendant on 18-9-1987.
Eversince then, it was alleged, the petitioner-defendant has been treating her with cruelty, was not maintaining her and that about one year prior to the filing of the civil suit. She was evicted from the house by the petitioner. It was further averred that respondent No, 3 (plaintiff) gave birth to respondent No, 4 (plaintiff) at her parents' house and the petitioner never gave any expenses incurred during the delivery. After the submission of the written statement, following issues were framed:-
(i) Whether the plaintiffs are entitled to maintenance allowance from the defendant. If so, at what rate and from which date? OPP
(ii) Relief.
3. During trial, the plaintiffs' side produced two witnesses, namely, Mst. Ayesha as P.W.1 (plaintiff No,1 herself) and Jind Wadda (P.W.2), The petitioner-defendant side produced three witnesses, namely, Muhammad Afzal D.W. 1 (petitioner-defendant himself) Muhammad Amin Khan (D.W.2) and Karim Bakhsh (D.W.3). The learned trial Court vide its judgment and decree dated 28-2-1993 decreed the suit and declared plaintiffs entitled to recover maintenance from the defendant Rs,300 per month for plaintiff No,2 (respondent No,4) and Rs, 500 per month for plaintiff No, 1 (respondent No,3) from twelve months from the filing of the suit and also for the period from the institution of the suit till the delivery of the judgment and decree. It was further directed that the plaintiffs shall also be entitled for the same amount of maintenance in future. An amount of Rs,4,000 was decreed as expenses of the delivery of respondent No,4 (plaintiff No,2).
4. The petitioner-defendant challenged the judgment and decree passed by the learned Judge Family Court, Bahawalpur, and the learned Additional District Judge, vide his order dated 29-4- 1993, admitted the same. On 4-5-1994, the learned appellate Court held that the court-fee on the memorandum of appeal was deficient and directed the petitioner-defendant to make good the deficiency in the court-fee by 18-54994. On this date is was found that the petitioner-defendant had neither deposited the deficient court-fee nor he gave any reason for non-deposit of the same.
In these circumstances, the learned Additional District Judge rejected the memorandum of appeal for non-deposit of the court-fee.
5. The learned counsel for the petitioner has assailed the order of the learned Appellate Court on the following grounds:-
(i) That the learned Additional District Judge has wrongly assessed the court-fee to be Rs,8,250 and the petitioner was only liable to pay court-fee only on the annual maintenance allowance decree which was Rs,9,600 and he was only liable to pay Rs,750 as court-fee (@ Rs, 75 per one thousand).
(ii) That it was a family suit and the same should have been decided on merit rather than on a technical ground.
6. The learned counsel for respondents Nos. 3 and 4 (plaintiffs), on the other hand, has defended the order of the learned appellate Court and has submitted that the non-deposit of the court-fee was default which rightly attracted the consequence of dismissal of petitioner's appeal. It was further submitted that the finding of the learned appellate Court is in line with the law laid down by this Court which is reported in 1992 CLC 2270, Haji Khurshid Ahmed v. Mehr Salabat Khan etc. And PLD 1993 Lahore 521 Muhammad Ramzan v. The District Judge, Okara and others.
7. I have heard learned counsel for the parties, have gone through the evidence on record and considered the law point which has been mooted.
8. Section 19 of the West Pakistan Family Courts Act, 1964 stipulates that the court-fee to be paid on any plaint filed before the Family Court shall be Rs,
15. However, this concession is confined only to the plaint and "it does A not extend to appeal". On the memorandum of appeal, court-fee advalorem has to be affixed. In 1987 SCM R 1161 Mirza Daud Baig v. The Additional District Judge, Gujranwala and others it was held:-- "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, Schedule I of the Court Fee 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). The concession with regard to reduction in the court-fee under section 19 of the Family Courts Act, 1964 is restricted to the 'plaint' and does not extend to the '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 I of the Court Fees Act, 1870 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 laterius). It is manifest, therefore, the legislrture intended to exclude from the purview of section 19 of the Family Courts Act, 1964 the 'memorandum of appeal' and confined the concession with regard to payment of court-fees only on a `plaint'."
9. In the instant case also the amount on which the court-fee was payable on appeal would be computed in terms of section 7 (i) and (ii) of the Court Fees Act read with its Article 1, Schedule I.
The learned appellate Court had rightly directed the petitioner to fix the requisite court-fee on the memorandum of appeal by 18-5-1994. On 18-5-1994, the petitioner had neither made up the deficiency in court-fee nor had shown sufficient cause for not doing the same and the learned appellate Court had rightly dismissed the appeal for not paying the court-fee within the time fixed by the said Court. In Muhammad Afzal Shah v. Additional District Judge 1995 CLC 312 and Haji Khurshid Ahmad v. Mehr Salabat Khan, Additional District Judge Sahiwal 1992 CLC 2270, the judgment passed in appeal whereby the appeal had been dismissed for deficient court-fee was upheld. The afore-referred judgments of this Court are based on the dictum laid down by the Hon'ble Supreme. Court in 1987 SCM R 1161 Mirza Daud Baig v. ADJ, Gujranwala and others.
10. Even otherwise, the amount of maintenance fixed by the learned trial Court is neither excessive nor unjust in view of the prevalent inflation and the high costs of living. The liability of a father and husband for maintenance allowance to his son and wife is unquestionable and cannot be permitted to be avoided.
11. For what has been discussed above, there is no merit in this petition which is dismissed with no order as to costs.