' Through the single Judgment Writ Petitions Nos.18148 of 2000 and 963 of 2002 are decided. In both these writ petitions a vital law point to be decided "whether in a suit for recovery of dowry articles, which is dismissed by Family Court, the memo. Of appeal is exempted from court-fee or whether the Court-fee is to be affixed on the memo. Of appeal according to claim in the subject-matter".
2. In Writ Petition No.18148 of 2000 vide judgment and decree dated 11-2-2000 suit; for recovery of articles of dowry was dismissed by the learned Judge Family Court. Appeal dated 31-3-2000 was filed affixing court-fee of Rs.15 on the memo. Of appeal. An application under section 149 read with section 151, C.P.C. Was filed directing the appellant to make out the deficiency in court-fee and alternatively it was prayed that the appeal be dismissed under Order VII rule 11, C.P.C. Application was contested and the learned District Judge vide order dated 5-7-2000 held that court-fee of Rs.15,000 was required to be paid on the memo. Of appeal. The parties challenged the same in the instant writ petition.
3. In the next Writ Petition No.963 of 2002 filed by the Mst. Hina Rehman the suit for recovery of dowry articles valuing Rs.5,41,250, learned Judge Family Court vide judgment and decree date 22- 4-2000dismissed the suit filed by the plaintiff but decided Issue No.2-B regarding court-fee in negative and observed that since the demand of the plaintiff emerged in family suit, therefore, no court-fee was required. On appeal against the judgment and decree passed by the learned Judge Family Court the learned District Judge directed the appellant to affix court-fee of Rs.15,000 on the memo. Of appeal. This order is also impugned by the petitioner-plaintiff in the instant writ petition.
4. This Court requested Syed Afzal Haider. Advocate, Mr. S.M. Almas Ali, Advocate and Barrisater Taki Ahmad Khan, Advocate to assist this Court as Amicus Curiae. Views of the learned Advocates as Amicus Curiae are that section 19 of the West Pakistan Family Courts Act, 1964 is curative and remedial enactment, which was legislated to give relief to the wives from payment of court-fee on their appeals in case the decision went against them in the trial Court intention of Legislature was to give relief to the distressed in order to fulfil the purpose of justice. Mr. S.M. Almas Ali, Advocate as Amicus Curiae submitted that section 122, C.P.C. Empowers the Court to make rules to regulate procedure, enable them to levy court-fee include the power to impose fee in Courts. The purpose behind is to secure revenue for the benefit of state and not to harm the litigant with weapccn of technicality to harass his opponent. In any case under section 149, C.P.C. The Court is to look into the deficiency of court-fee, if any, and then grant an opportunity either to the plaintiff or the appellant to make up such deficiency. Provisions of Order VII, rule 11, C.P.C. Cannot apply in the absence of such exercise (2000 CLC 1680), (AIR 1935 Rangoon 460). The valuation of suit is to be determined on two different levels, one for the court-fee under the Court-Fees Act and the other for the jurisdictional purposes under the Suit Valuation Act. The provisions of section 149, C.P.C. And section 10 of the Court Fees Act are to he read conjunctively for the grant of a chance to the litigant to make out the deficiency in court-fee, if any, before a case can be dismissed for nonpayment of the proper court-fee. As the appeal is continuation of suit the quantum of court-fee to be paid on the memo. Of appeal may be different from the quantum of court-fee payable on a plaint. Section 19 of the Family Courts Act 'latest amendment is silent whether it will be prospectively or retrospectively applied. Under section 7 (i) and (ii) of Court Fees Act the payable court-fee is computed in respect of suit for money and suit for maintenance and other annuities. Under section 7 (iv) computation of court-fee on movable property of no market value etc., to be made according to the amount which the relief sought is valued in the plaint or memo. Of appeal.
However, according to item 17(iv), Schedule II of the Court Fees Act, a fixed court-fee of Rs.10 is prescribed for suits where it is not possible to estimate the money value of the subject-matter in dispute anu 't is not otherwise provided for by the Act.
5. Learned counsel for the petitioner Mr. Muhammad Farooq Qureshi Chishti, Advocate, argued that these case are suit for recovery of articles of dowry, which were dismissed by the learned trial Court. The court-fee to be paid on the plaint is Rs.15 although it did not include the memo. Of appeal but by virtue of amendment in the Family Courts (Amendment) Ordinance (LV of 2002) promulgated on 1-10-2002, court-fee to be affixed on memo. Of appeal was also limited to Rs.15.
These suits for recovery of dowry articles were filed prior to the instant amendment. All the case- laws cited in these cases relate to maintenance allowance where Court Fees Act does not apply and ad valorem court-fee is to be paid. As the decree in suit for recovery of maintenance allowance is also a decree for money, therefore, section 7(ii) of the Court Fees Act is relatable but it is not relatable to a suit for recovery of dowry articles. Of course the dowry articles, which are the subject-matter of dowry stands for a market value but the same are to be determined by a Court of law. The market value of the dowry articles at the time of institution of suit need specific determination by the learned Judge Family Court regarding the market value at the time of filing of suit regarding the market value due to depreciation of their value during the preceding long years, therefore, the petitioners, suit and appeal can be conveniently said to be falling under section 7(iii) of the Court Fee Act.
6. Learned counsel for the respondent in Writ Petition No.18148 of 2000 submitted that when the plaintiff has fixed the valuation of court-fee she is bound to pay the court-fee according to her claim. The valuation of court-fee is to be determined the date the plaint was presented and the court-fee will be on the demand of valuation of articles of dowry.
7. I have heard the learned counsel for the parties, learned Amicus Curiae and carefully perused the record. The nutshell of the discussion by the learned counsel for the parties and the learned Advocates as Amicus Curiae is that the respondent has no vested right in the payment of court- fee. It is the matter between the subject and the State and intention of Legislature is to give relief to the wives and distressed in order to fulfil the purposes of Legislature. All the case-laws cited pertain to maintenance allowance cases where section 7 (ii) of Court Fees Act does not apply as the decree in maintenance allowance is a money decree. But the plaintiff in suit for recovery of dowry articles demands dowry articles given to her at the time of marriage, which are detained by the husband against her wishes, therefore, in such cases the claim of the plaintiff is always for return of down articles and not for the substitution of money and the matter rests with the Court of first instance to decide whether it is possible that the dowry articles can be returned in their proper manner and whether the substitution of dowry articles will be justifiable in money and this is purely a matter of evidence. If the suit is decreed by the Court of first instance when plaintiff has successfully proved her claim then the decree-sheet must disclose the value of articles of dowry decreed by the learned trial Court and the party appealing against the judgment and decree will affix the court-fee to the valuation of suit for the purposes of court-fee and jurisdiction expressly declared and disclosed in the decree-sheet.
8. If the suit for recovery of articles of dowry is dismissed by the learned trial Court and no valuation for the purposes of court-fee and jurisdiction is determined in the decree-sheet then the interpretation of the statute will be that claim of the plaintiff for the return of dowry articles will fall under Article 17 (vii) Schedule II of Court Fees Act, which provides that every other suit where it is not possible to estimate money value of subject-matter in dispute and which is not otherwise provided for by this Act, court-fee of Rs.10 will be affixed on the memo. Of appeal.
9. Undoubtedly the proceedings in appeal are the continuation of suit. In the present cases the subject-matters of suits of the plaintiffs-wives were dismissed and the decree-sheets of both these suits did not disclose the valuation of the suits for the purposes of court-fee and jurisdiction.
10. In the instant cases the learned trial Court had viewed that no dowry articles were given and were detained by the husband and the suits were dismissed. The impugned decree did not determine the market value of movable articles, therefore, no valuation was shown on the body of decree-sheet. Under Schedule II, Article 17 (v) of the Court Fees Act read with section 19 of the West Pakistan Family Courts Act, 1964, the same is always a remedial enactment for that purpose and a stamp of Rs.15 will be affixed on the memo. Of appeal. As far as the intention of Legislature in respect of family matters is concerned section 19 of the West Pakistan Family Courts Act, 1964 of course will have retrospective effect. In the instant cases as the claim in suit is the claim in appeal, in which the court-fee of Rs.15 is affixed.
11. Arguments advanced by learned counsel for the respondent in Writ Petition No.18148 of 2000 are not convincing the plaintiff fixed the valuation of court-fee in her plaint and she is bound to pay the court-fee according to her claim. As the Court of first instant decided the issue of court-fee the negative and no cross-objections were filed in respect of that issue by the learned counsel for the respondent alongwith the appeal filed by the plaintiff. As the subject-matter of suit of the plaintiff wife was dismissed and the decree-sheet in the instant case did not disclose the valuation of suits for the purposes of court-fee and jurisdiction and the appeal is filed against the decree.
12. Moreover, the intention of Legislature by way of not attracting the provision of Code of Civil Procedure in stricto senso is that no technical bar be created to give relief to the distressed wives in family matters for the purposes of justice and the suits in both the cases for recovery of dowry articles were dismissed by the learned trial Court. It is also settled principle of law that plaintiff in suit for recovery of dowry articles demands articles of dowry given to her at the time of marriage and those of course carry sentimental attachment i.e. The paternal grandmother of the bride gifts her an old small silver jewellery box at the time of marriage, which besides sentimental value will not carry any market value and such-like other items might be existing in the suit for recovery of dowry articles, for which the true assessment of market value is impossible the suit for recovery of maintenance allowance the decree in a suit for recovery of dowry articles is not a money decree as envisaged in section 7 (ii) of the Court Fees Act. Judgments of Superior Court up to this time relate only to maintenance cases and not to recovery of articles of dowry.
13. General principle in the Court Fees Act is that value of suit for the purposes of jurisdiction is to be determined according to the value of relief sought and as observed earlier that the Court has to determine the value of articles, of dowry at the time of presentation of- plaint and their depreciated value during the long preceding years as established through evidence. In view of "Fandurang Mangal and others v. Bhojalu Usanna and others" (AIR (36) 1949 Nagpur 37) court-fee is a fiscal enactment. Ambiguity or doubt is to be resolved in favour of subject "Ratansingh and others v. Raghurajsingh and others" (AIR (33) 1946 Nagpur 30) the ratio is that in order to decide whether a suit is governed by section 7 (iv) (c) and Article 17 (iii) Schedule II of the Court Fees Act, 1870, one must look to the substance and the nature of the claim and not to the language or the form in which the relief claimed is framed. As the Court Fees Att is fiscal enactment merely to collect revenue any ambiguity raised out of it should be resolved in favour of the plaintiff "Manzoor Hussain and others v. Rasool Bakhksh and others" (1991 CLC 640).
14. The claim of plaintiff in a suit for recovery of dowry articles is not substitution of money, which is for the Court to determine on the basis of evidence whether substitution of dowry articles will be justifiable in money or not, in all such cases where the valuation of suit is not determined for the purposes of court-fee and other for the jurisdictional purposes on the decree-sheet the case will fall under the remedial and curative enactment of section 19 of the West Pakistan Family Courts Act. 1964 and Article 17 (vii), Schedule II of the Court Fees Act, 1870 and the stamp of Rs.15 will be affixed on the memo. Of appeal as is apparent from the intention of Legislature through West Pakistan Family Courts (Amendment) Ordinance (LV of 2002) promulgated on 1-10-2002.
15. Writ Petition No.18148 of 2000 is dismissed and the order of learned Appellate Court for affixation of court-fee Rs.15 is maintained and order passed in appeal in Writ Petition No.963 of 2002 is hereby set aside and the case is remanded to the learned Appellate Court to re-decide the issue of court- fee accordingly.