' SARDAR MUHAMMADQBAL, C. J.--Respondent No, 2 filed a suit against the petitioner for payment of dower, arrears of maintenance and also the future maintenance. The suit was decreed by the Family Court. The petitioner preferred an appeal and abed one-rupee court-fee stamp on the memorandum of appeal. The District Judge held that the court-fee was payable ad valorem on the subject-matter of the appeal under Article I of Schedule I of the Court Fees Act and that he should, therefore, mate up the deficiency. The petitioner challenged that order through this petition.
The matter being of public importance it was considered proper that the case should be heard by a Division Bench.
2. The law as to court-fee is contained in the Court Fees Act. It was, as its name imports, an Act primarily passed for the purpose of prescribing the fees which are to be paid in respect of documents to be used in Courts. The Act as originally passed extended to the whole of British India.
By the Devolution Act (XXXVIII of 1920) various provinces had been empowered to fix their court- fees in their respective Provinces. In accordance with this Act several amendments were made.
There are various other enactments, Central and Provincial, which contain provisions relating to court-fees. By the operation of the Adaptation of Indian Laws Order, 1947, the Act extended to all the Provinces of India. It also extended to Pakistan by the Adaptation of Pakistan Laws Order, 1947. The court-fees is now a provincial subject and it is competent for the Provincial Legislature to legislate about court-fees. In all cases specified in the Court Fees Act the court-fees are computed and paid under the provisions of the said Act unless there is some special or local Act or the rules prescribing different fees. In section 6 of the Court Fees Act It is provided that no document of any of the kinds specified as chargeable in the First or Second Schedule annexed to this Act shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such documents. Section 71 indicates the method of computation of fees. Each of the paragraphs begins' with the word suit, but it should not be considered that because that word is used, the memoranda of appeal are excluded from the operation of section 7. There is indeed no express provision providing for such a course but it is general practice to apply this section to the calculation of fees in appeals. Clumni Lal v. Sheo Chum Lal (1) Schedule I is merely supplementary to section 7, it is a table provided for ready reckoning and indicates how the ad valorem fee prescribed by section 7 is to be calculated. It deals with the mode of computing the fees payable in various classes of suits. It is provided in pars. (i) of section 7 that "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". A suit for an ascertained sum falls within this paragraph. The suit of the respondent for prompt dower and for maintenance is a suit for an ascertained slim and this paragraph is applicable. The respondent also had claimed future maintenance. It may fall under paragraph (ii) of section 7.
3. The suit of the respondent for payment of dower and maintenance being of a civil nature the civil Courts would have been competent to try it under section 9 of the Code of Civil Procedure. The jurisdiction of the civil Courts has, however, been barred under section 5 of the Family Courts Act, 1964, under which power to entertain, hear and adjudicate upon matters pertaining to dower and maintenance etc., has been exclusively given to the (1) AIR 1925 All. 787 Family Courts. The procedure for filing the suit in the Family Court, however, remained the same. Like a suit in a Civil Court can be instituted by presentation of a plaint. Under Article I of Schedule I of the Court Fees Act, court-fee on plaints and memorandum of appeal is to be computed on the rates shown therein. If the suit had been filed in a civil Court, the court-fee payable under Article I aforementioned would have been ad valorem. It would have been the same on the suits filed before the Family Courts. The Legislature with a view to giving relief to the plaintiffs in suits under the Family Courts Act made a special provision in section 19 of the Act which reads as follows :- "Notwithstanding anything to the contrary contained in the Court Fees Act, 1872, the court-fees to be paid on any plaint filed before a Family Court shall be rupee one for any kind of suit."
' The words "Notwithstanding anything to the contrary contained in the Court Fees Act, 1872" are quite significant and point out to the fact that the Legislature was conscious that but for this provision Article of Schedule I of the Court Fees Act would have applied to a plaint filed under the Act, there being no other provision for charging the court-fee. Since the Legislature restricted itself to a "Plaint", it is obvious that it did not intend to include memorandum of appeal. It is well established principle of law that, express mention of one implies the exclusion of the other (express unfus est excluslo alterlus). The Legislature having expressly mentioned "plaint" for the purpose of court-fees of rupee one in section t9 of the Family Courts Act necessarily intended to exclude the "memorandum of appeal" from the purview of this provision.
4. It was contended that section 19 of the Family Courts Act had been enacted by way of abundant caution and even if it had not been enacted Article 1 would not have been applicable because Family Court although termed as "Court" is not a "Court" within the meaning of Article I of Schedule I. We are unable to accept this contention. It has unmistakably been termed "Family Court" in the Act. It is stated in the preamble that the Family Courts were intended to be established for the expeditious settlement and disposal of disputes relating to marriage and for matters connected therewith. It again defined the Family Court in section 2 (1) (b) "a Court constituted under the Act".
Section 3 provided that the "Government shall establish one or more Family Courts in each District or at such other place as it may deem necessary and appoint a Judge for each of such Courts."
The Family Court has all the characteristics of a Court. In order that it should be a Court, it must exercise a judicial power. If the ultimate decision depends not on the application of legal principles to ascertained facts but by consideration of policy also the authority or body deciding it will not be a Court in the strict sense of exercising judicial power. In Saskttcheman Labor Relations Board v.
John East Iron Works Ltd. (1) it was observed a "It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject and that it is the duty of the Court to decide the issue between those parties, with whom alone it rests to indicate or defend or compromise the proceedings".
' Undeniably, a Family Court performs functions of a judicial character! And has to render decision which must be based on consideration of facts (1) 1949 A G 134 and circumstances of a given case.
By its judgment and decree a Pamil Court can Impose liability on a party. It has to determine questions affecting rights of parties in a judicial manner.
5. It was next contended that even if the Family Court be regarded "Court", it should not be considered a civil Court and that, therefore, Article 1 of Schedule I of Court Fees Act which only applies to plaints o memorandum of appeal in civil Court did not apply. It was argued that only Courts which are constituted under the Punjab civil Courts Act could be called Civil Courts. Putting at in another way he contended that It is only the Courts governed by the Civil Procedure Code that could be called civil Courts. No authority was cited for placing such a construction on the words "civil Courts". In their ordinary acceptation, those words mean Courts which adjudicate on civil rights. Courts which decide disputed rights between subjects or between a subject and the State would be civil Courts as opposed to Criminal Courts where the State vindicates wrongs committed against the public. Courts constituted for deciding on purely civil questions between persons seeking their civil rights must be considered to be civil Courts notwithstanding that they are created by a special Statute and a mentioned In that Statute as distinct from civil Courts. The true import of such a distinction is that while special Courts have jurisdiction over a limited class of suits specified in the Statute the jurisdiction of the ordinary civil Courts is not limited to any class of suits.
It is in this sense that the words "civil Courts" have been interpreted by the Privy Council in Nilmoni Singh Deo. v. Terence Mukerfee (3).
' The jurisdiction of the Family Court under the Act is to adjudicate upon matters relating to dissolution of marriage, dower, maintenance, guardianship and in jactitation of marriages but for the constitution of this Court these matters would have been within the jurisdiction of a civil Court.
These matters pertain to disputes between individuals. We also otherwise have a clear concept of the function of an ordinary civil Court. The suit is instituted in an ordinary civil Court by the presentation of plaint under Order VII of the C. P. C. ; the written-statement is filed under Order VIII, the Issues are framed under Order XIV, the witnesses are produced under Order XVIII and the judgment and decree is passed under Order XX. There may be slight variations in the procedure laid down in the Act but by and large it is same as is the observed in the ordinary suits. It is provided in section 7 of Family Courts Act, "Every suit before a Family Court shall, be instituted by the presentation of a plaint" and the plaint is to "contain all material facts". The defendant is to be served under section 8. He is to file written statement under section 9. The issues are framed under subsection (4) of section in. The Court examines the witnesses under section 11. It summons the witnesses under subsection (2) of section 11. And after the evidence is closed it announces judgment and gives a decree under section 12. The decree Is executable. Doubtless the p:ovlsions of the Evidence Act and the Code of Civil Pro ,lauder are excluded under section 17 from apply lag to proceedings before the Family Courts but that would not, in any way, change the character of a Court as a Civil Court. The Family court doubtless is a civil Court. We are in respectful agreement with the view expressed by on learned brother K. E. Chauhan, I, in Gaman v. Tel Din (2) that a Family Court G is neither persona designate nor a Tribunal, but a "Court" for all purposes.
(1) 9 Cal. 295
(2) P I., D 1968 Lab. 987
6. The position hero is very simple. It is not a case of court-fee to be paid in the Family Court on a plaint to be presented there but is of the court-fee to be paid on the memorandum of appeal. The appeal in the case was competent before the District Court. Under section 14 of the Family Courts Act in cases where a Family Court is presided ever by a District Judge, an appeal shall lie to the High Court and in any other case to the District Court, which, according to section 2 (21) of the West Pakistan General Clauses Act VI of 1956 and section 2(4) of the C. P. C. Means the principal civil Court of original civil jurisdiction of a district. The District Court is doubtless a civil Court and since the appeal in the present case lies to the District Court, there can be no doubt whatsoever to the fact that the memorandum of appeal to be filed before the District Court under the Act falls under Article I of Schedule I of the Court Fees Act and the court-fee in such cases is according to the amount or value of the subject-matter in dispute. In Abdul Bag v. Sald-ur-Rehman (1) it was held that "the appellate power under the Ordinance is now invested by the Statute in the "District Judge having jurisdiction over the area" in his ordinary judicial capacity as the Presiding Officer of the principal Court in the District. He does not act as a persona designate in hearing the appeal under subsection (1) of section 15 of the Ordinance (as amended). The intention of the Legislature in this respect appears to be manifestly clear".
7. It was next contended that the Court Fees Act was a fiscal enactment which should be construed strictly and, as far as possible, in favour of the subject, and that since under section 19 of the Family Courts Act court-fee to be paid on the plaint is rupee one, the intention of the Legislature was that in all proceedings under the 1964 Act till such time the same are finally concluded in appeal the court-fee was to remain the same. It was Anther argued that the appeal was a continuation of the suit and, therefore, section 19 was also applicable to the memorandum of appeal. Doubtless, the Court Fees Act is a fiscal enactment and its provisions are to be strictly construed. There cannot be any quarrel with the proposition that if there is any doubt about a liability, it must be resolved in favour of the suitor and in case of an ambiguity in the language of the Statute, construction on which is beneficial to the subject must be placed, but when the words of an enactment are absolutely plain and the meaning quite clear, the Court has to give effect to the language used and cannot construe the same so as to give a chance of escape and mean to evasion. The Legislature in section 19 used the word "plaint" and not "suit". Article 1 of Schedule I provides both for the plaint and the memorandum of appeal. If the intention of the Legislature had been to include 'memorandum of appeal' in the word 'plain', it would not have used both the terms. The expression 'plaint' or 'memorandum of appeal' is used also in other Articles of Schedule If, Articles 4, 5 and 17.
There is thus a distinction between the plaint and memorandum of appeal, and it is entertained in the Family Courts Act. A plaint is presented in the Court of initial jurisdiction whereas memorandum of appeal, as the expression itself connotes, is before the Appellate Court or Appellate Authority.
The appeal is continuation of proceedings in the suit but plaint and memorandum of appeal are two different documents The Court Fees Act provides for fees to be charged on document and not on proceedings. Thus if the Legislature had intended that the court-fee for the plaint and the memorandum of appeal should,be the same, it would have along with the word 'plaint' also included 'the memorandum of appeal' is section 19.
(1) PLD 1961 Leh. 478
8. From the earliest times there had been attempts to put down false and vexatious litigation. The payment of court-fee may also discourage such litigation. The Legislature, it appears, was conscious of the fact that the teeming millions of people in our country were poor and the women in particular had generally no means of income. Of the suits triable exclusively by the Family Courts, the suits for dower and maintenance alone were chargeable with ad valorem court-fee.
They could be instituted only by wives. Realizing that for the wives the court-fee as provided for plaints in Article 1 of Schedule I of the Court Fees Act might prove prohibitory so have recourse to Courts of Law to claim dower or maintenance, a nominal court-fee was fixed. The Legislature also appears to be conscious of the fact that once a suit is decided the rights of the parties are crystallized through the decree of the Court and if any person is to challenge the same he should not have the same concession, but should be liable to pay the court-fee which was otherwise provided under the law. This may be with an intention to put down any false and vexatious litigation.
9. On the above view of the matter, we are clear in our mind that the memorandum of appeal to be presented to the District Court was covered., by Article 1 of Schedule I of the Court Fees Act, 1872, and since section 19 of the West Pakistan Family Coasts Act, 1967, did not apply to "memorandum of appeal" the court-fee had to be paid ad valorem.
10. The writ petition was dismissed with costs by us on the 13th of March, 1973 when we recorded a short order. The above reasons have been recorded in support of the same.