This writ petition has been filed by the petitioner on the plea that he had filed an appeal against the judgment and decree passed by Miss Tamsaal Zeb Manzoor, Judge Family Court, Lahore dated 9-4-2002 whereby the learned trial Court had decreed the suit of respondent No.1 for the recovery of dower money amounting to Rs.100,000. The appeal was entrusted to Miss Uzma Akhtar Chughtai, learned Additional District Judge, Lahore and during the proceedings of appeal, the learned Appellate Court passed an order on 25-11-2002 directing the petitioner to affix the court-fee. In compliance with the order of the Court the petitioner had affixed the court-fee amounting to Rs.7,500 on 2-1-2003. In the meanwhile, it transpired that under section 19 of the Family Courts Act, 1964 which was amended vide Ordinance dated 1-10-2002, the court-fee to be paid on any plaint or memorandum of appeal in a family case had been fixed as Rs.15. In this view of the matter, the petitioner filed an application before the learned Appellate Court with the request to review/recall the order dated 25-11-2002, The appeal of the petitioner was accepted vide order dated 29-1-2003 and the case was remanded to the learned trial Court for a fresh decision but there was nothing in the order about the fate of the application of the petitioner for reviewing/recalling the order about the payment of court-fee which was passed on 2541-2002. Therefore, on '26-2-2003 the, petitioner filed another application before the learned Appellate Court to decide the application of the petitioner. However, the said application was dismissed on 18-3-2003. Hence this petition.
2. The learned counsel for the petitioner has argued that the orders dated 25-11-2002 and 18-3- 2003 passed by the learned Appellate Court whereby the court-fee was ordered to be affixed on the memorandum of appeal and the application of the petitioner dated 21-1-2003 had been dismissed are void ab initio and nullity in the eye of law because the same are the result of non- appreciation of law. He has argued that the learned Appellate Court, directing the appellant to affix the court-fee, had passed the order in that respect on 25-11-2002 while the relevant provision i.e. Section 19 of the Family Courts Act, 1964 had already been amended vide the Family Courts (Amendment) Ordinance, 2002. He has argued that at the time of passing the order about the court-fee, the law under which the order was passed was no more in existence and according to the amended law the court-fee was only Rs.15 and so the order passed by the learned Appellate Court was without jurisdiction and also without lawful authority and not legally sustainable. He has argued that the amendment in law was procedural in nature and so it had retrospective effect. He has further argued that as the case had been remanded and had not been fmally decided on merits, therefore the court-fee was liable to be refunded. However, the Appellate Court did not exercise the jurisdiction vested in it by law while deciding the application of the petitioner. It was thus argued by him that the orders dated 25-11-2002 and 18-3-2003 passed by the learned Additional District Judge are liable to be set aside.
3. The learned Additional Advocate-General appeared in the Court on Court's call and has assisted the Court.
4. So far as the order dated 25-11-2002 is concerned, it appears that the petitioner promptly complied with the same and it was subsequently that the amendment effected in section 19 of the Family Courts Act, 1964 through the Family Courts (Amendment) Ordinance, 2002 came to his notice. It was thereafter that the petitioner filed an application for the refund of the court-fee which was however remained pending and was not decided while the appeal was disposed of on 29-1- 2003 and the case was remanded to the learned trial Court for a. Fresh decision on merits. It was on 26-2-2003 that the petitioner filed an other application before the learned trial Court with the request that the court-fee paid by him on the memorandum of appeal be refunded on account of the amendment in law. While disposing of the said application vide a short order dated 18-3-2003 the learned Additional District Judge observed that the appeal had been filed on 23-5-2003 while the amending Ordinance had been enforced on 1-10-2002,and hence the court-fee could not be refunded. Hence the application of the petitioner was dismissed.
5. In support of his contention the learned counsel for the petitioner has referred to section 13 of the Court-Fee Act, 1870 and has argued that if a suit if remanded in appeal on any of the grounds mentioned in the said Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorizing him to receive back from the Collector the full amount of court-fee paid on the memorandum of appeal. In support of his argument he has placed reliance on Muhammad Afzal v.
Muhammad Aslam (1994 CLC 1277 Lahore) and Pakistan Burmah Shell Limited v. Tariq Brothers (1997 CLC 761 Lahore). The learned counsel for the petitioner has also argued that where the court- fee has been paid inadvertently or by mistake or where section 13 of the Court-Fee Act, 1870 is not attracted, the Court can order the refund of the court-fee.
6. At the time of arguments the learned Addl. A.G. Also agreed that the learned Additional District Judge has disposed of the application of the petitioner vide order dated 18-3-2003 in a slipshod manner. Hence, it would be appropriate to send the matter back to the learned Additional District Judge to decide the application of the petitioner afresh after hearing the arguments of his counsel.
Consequently, this petition is accepted, the order dated 18-3-2003 passed by the learned Additional District Judge, Lahore whereby the application of the petitioner for the refund of court- fee was dismissed is set aside and the learned Additional District Judge is directed to decide the application aforesaid afresh in accordance with law, after hearing arguments of learned counsel for the petitioner. It has been stated that the learned Additional District Judge concerned has been transferred out of Lahore. However, the matter can be decided by her successor and in case there is no successor of the learned Additional District Judge (Miss Uzama Akhtar Chughtai), the learned District Judge will entrust the petition to some other Additional District Judge for disposal. accordingly.