Brief facts in this writ petition are that the respondent No,1 challenged the judgment and decree, dated 20-6-1991 passed by Mr. Naveed-ul-Zafar, learned Additional District Judge by way of Writ Petition No,6370 of 1991 titled "Aisha v. Nasir Mahmood and others" on the ground that the appeal was deficienly stamped. Since \the maintenance has been claimed by the respondent No,1 in her suit at the rate of Rs,2,000 per month ad valorem court-fee was payable on the memorandum of appeal under section 7(10 of the Court Fees Act read with section 14 of the West Pakistan Family Courts Act. The writ petition was accepted by my learned brother Malik Muhammad Qayyum and J, the appeal was remanded to be decided afresh in accordance with law. The petitioner made an application for permission to pay the court-fee ad valorem on the value of the subject-matter in dispute in appeal, but the learned Appellate Court instead of considering the decree granted by the learned Judge Family Court at the rate of Rs,1,000 per month to be the subject-matter in dispute in appeal directed the petitioner to make up deficiency of court-fee on the memorandum of appeal on the basis of the subject-matter of the suit and claim of the respondent No,1, which was Rs,2,000 per month and ordered the petitioner to pay court-fee of Rs, 15,000 vide order, dated 12-4-1993 and fixed the case for arguments on 24-4-1994. The petitioner paid the required court- fee on 21-4-1993 and the learned Appellate Court partly accepted the appeal vide judgment and decree, dated 15-6-1993. And directed the petitioner/ respondent to pay the maintenance at the rate of Rs,800 per month to the respondent No,1 till she attains majority. The petitioner challenged the order, dated 12-4-1993 for directing the petitioner to make up the deficiency of court-fee on the subject-matter of suit and claim of the respondent No,1 in the suit and also challenged the judgment and decree, dated 15-6-1993 through the instant writ petition. This writ petition on merits was decided by my learned brother Ch. Ghulam Sarwar, J., vide order, dated 7-9-1993 observing "this petition having been admitted to hearing only on law point regarding the payment of court- fee and having been dismissed on merits, so no case for suspension of impugned judgment or decree is made out and accordingly C.M. No,1 of 1993 is dismissed", therefore, the point of limitation was left to be considered lateron.
2. Submissions made by learned counsel for the petitioner are that under section 14 of the Family Courts Act one appeal is allowed to the aggrieved party against the judgment and decree, passed in the Family suits; by virtue of section 19 of the West Pakistan Muslim Family Court Act, 1964 the court-fee to be paid on any plaint filed before a Family Court is rupee one for any kind of suit and through Punjab amendment it was substituted Rs,15. This means a fixed amount of Rs,15 was payable as court-fee. The court-fee leviable on the memo. Of appeal against order of maintenance will be on the subject-matter in dispute in appeal and not the subject-matter in dispute of claim in suit filed by the plaintiff. He has relied on "Muhammad Sharqat Baig v.
Ch.Mazhar Hussain Minhas, Additional. District Judge, Rawalpindi and others" (1995 SCMR 1720).
Further submitted that in this judgment the apex Court has also considered the claim of the respondent/father upto the extent of maintenance he can pay.
3. I have heard the learned counsel for the petitioner and gone through the judgment and decrees passed by the learned Courts below. The learned Judge Family Court observed that "the defendant shall pay Rs,1,000 p.m. To the plaintiff as maintenance allowance from the date of her birth as past maintenance and he shall continue to make payment on the same rate till she attains the majority.
Costs shall follow the event." At the appeal stage the learned Appellate Court observed that "ad valorem court-fee is to be paid on the memorandum of appeal of the appellant. According to section 7(11) of the Court Fees Act in suits for maintenance and annuities or other sums payable periodically, the court-fee payable will be 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". - As in the suit filed by the respondent the past as well as future maintenance has been claimed at the rate of Rs,2,000 per month and the appellant is required to pay court-fee on the memo. Of appeal according to section 7(II) of Court Fees Act. That will be deemed to be ten times of the amount claimed to be payable for one year. The petitioner/appellant is required to pay court-fee worth Rs,15,000 on the memo. Of appeal.
4. This determination of court-fee is challenged by the petitioner. So far as the appeal against a maintenance decree is concerned Article 1 of the Court Fees Act stands unamended. Section 7 (II) of the Court Fees Act is reproduced below:- "(7) Computation of fees payable in creation suits for money: ' The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follow:- 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;
(ii) For maintenance 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. In "Mirza Daud Baig v. Additional District Judge, Gujranwala and others" (1987 SCMR 1161) it was held by the apex Court ;hat "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 the "memorandum of appeal in section 19 read with section 7 of Court Fees Act Schedule I of Article I is significant because both the plaint and memo. Of appeal are included in Article I of Schedule I of the Court Fee Act as attracting ad valorem court-fee. The express mention .Of one implies the exclusion of the other (expressio unius. Est exclusio alterius). The Legistlature intended to exclude from the purview of section 19 of the Family Courts Act the "memorandum of appeal" and confined the concession with regard to payment of court-fee only on a "plaint. A Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of section 6 thereof. 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. Thus, the memo. Of appeal to be filed before the District Court falls under Article. I of Schedule I of the Court Fees Act and the court-fees in such cases is payable ad valoren on the subject-matter of the dispute". This judgment of the apex Court has been referred in "Muhammad Khalil v. Mst. Zahida Parveen and others (PLD 1991 Lah. 51), "Abdul Qayyum v. Additional District Judge and others" (1992 MLD 1657), "Naqash Ahmad and another v. Muhammad Sharif and another" (PLD 1996 Lahore 436) and "Muhammad Shafaqat Baig v. Ch. Mazhar Hussain Minhas, Additional District Judge, Rawalpindi and others" (1995 SCMR 1720).
6. Now the moot point in this writ petition is whether the court-fee is to be leviable on the subject- matter and claim in suit or on the subject-matter in dispute on memo. Of appeal. The relevant judgment in this concern is Muhammad. Shafqat Baig v. Ch. Mazhar Hussain Minhas, Additional District Judge, Rawalpindi and others (1995 SCMR 1720). In this judgment it was observed by their Lordships "that Item No,1 of Schedule I of the Court Fees Act as applicable to the Punjab provides that court-fee payable on a plaint, written statement pleading a set off or counter-claim or memorandum of appeal (not otherwise provided for in this Act)... Is 7-1/2 per mensum on the amount or value of the subject-matter in dispute upto a maximum Rs,15,000. It will be noticed that both under section 2 of the Punjab Act of 1983 and Schedule I, Item No,1 of the Court Fees Act, it is the value of the subject-matter which determines the amount of court-fee. The first question to be asked, therefore, is what is the value of the subject-matter of the appeal in a suit for maintenance.
A reading together of these two provisions must lead inexorably to the conclusion that if the value of the subject-matter of appeal is more than Rs,25,000 then the memorandum of appeal is liable to court-fee according to item I of Schedule I of the Court Fees Act, but if the value of the subject- matter is less than Rs,25,000 then by virtue of section 2 of the Punjab Act X of 1983 no court-fee is payable on the memorandum of appeal. The subject-matter of appeal in such a suit can be the right to maintenance, the rate of maintenance and the amount decreed".
7. The upshot of the above discussion is that determination of the court-fee in suit for maintenance is set at naught by the Hon'ble Supreme Court of Pakistan in this judgment. The judgment of the learned Appellate Court in respect of the determination of court-fee is set aside. The court-fee which is leviable or to be paid by the petitioner is not on the subject-matter and claim of the suit but the subject-matter of the appeal in such a suit regarding the right of maintenance, the rate of maintenance and' the amount decreed, therefore, the petitioner may be refunded court-fee after deducting the court-fee on the subject-matter in dispute in appeal and the amount decreed by the learned Family Court. To this extent the instant writ petition is allowed.