2017 CLC 214 Shariat Court (AJ&K)
2017 C L C 214
[Shariat Court (AJ&K)]
Before Ghulam Mustafa Mughal, C.J. and Sadaqat Hussain Raja, J
ABDUL HAMEED KHAN and others----Appellants
Versus
SAKEENA BEGUM and others----Respondents
Family Appeals Nos.110 of 2015 and 33 of 2016, decided on 1st November, 2016.
Azad Jammu and Kashmir Family Courts Act (XI of 1993)---
----Ss. 5, Sched., 14 & 15---Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982, Rr.40 & 41---Suit for recovery of dower amount and maintenance allowance---Appeal without affixing court-fee on memo. of appeal---Two suits, one for recovery of dower amount, and the other for maintenance allowance were decreed by the Trial/Family Court; defendants feeling dissatisfied from the judgment of the Family Court filed appeal, without affixing court-fee on the memo. of appeal---Objection was raised regarding maintainability of appeal without affixing court-fee---Validity---Under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal was provided to an aggrieved person from a decision or decree passed by a Family Court---No specific procedure for filing appeal was provided in the Act---Constitution of Shariat Court and procedure for filing of appeals and other proceedings before the Shariat Court, was provided under Azad Jammu and Kashmir Shariat Court Act, 1993---For regulating procedure of the Act, Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 had been enforced; which dealt with form and contents of appeal and its presentation, and no court-fee was required on those appeals---Provisions of the Court Fees Act, 1870, were applicable to the proceedings before the Shariat Court to the extent of Rr.40 & 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982---Fixation of court-fee on the memo of appeal and other documents, had been impliedly excluded---Family Court, though was a civil court, but plaint before such court, was exempted from the court-fee under S.19 of the Azad Jammu and Kashmir Family Courts Act, 1993---No court-fee was required to be paid on the memo of appeal, in circumstances. Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.
Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.
Mirza Daud Baig v. Additional District Judge Gujranwala and others 1987 SCMR 1161; Pervaiz Ahmad v. Tahra Shaheen alias Balquees Shahzadi 1988 CLC 1644; Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 and Muhammad Shafqat Baig's case 1995 SCMR 1720 ref.
Miss Kanwal Raheem for Appellants (in Appeal No.110 of 2015).
Sardar Khalid Mehmood Khan for Respondents (in Appeal No.110 of 2015).
Sardar Masood Ibrahim Khan for Appellant (in Appeal No.33 of 2016).
Sardar Javed Nisar for Respondents (in Appeal No.33 of 2016).
Sardar Khan as Amicus Curiae.
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Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017...
JUDGMENT
GHULAM MUSTAFA MUGHAL, C.J.--- As common questions of facts and law are involved in the captioned appeals hence, both the appeals were heard together and are decided as such.
Precise facts of Appeal No.110/2015 are that Sakeena Begum, respondent, herein, filed two suits one for recovery of dower amounting to Rs.250000/- and the other for maintenance allowance. Defendants contested the suit by filing written statement. At the conclusion of the proceedings the learned Civil Judge/ Family Judge Court No.II Rawalakot decreed both the suits through the impugned judgment and decree dated 30.10.2015. Feeling aggrieved from the aforesaid judgment and decree Abdul Hameed Khan, appellant, herein, has filed the captioned appeal.
Brief facts of Appeal No.33/2016 are that Hafeeza Begum, respondent, herein, filed two suits one for recovery of dower amounting to Rs.20000/- and the second for recovery of maintenance for Idat period against Muhammad Imtiaz Khan, appellant herein. The defendant contested the suits by filing written statement. The learned trial Court after hearing the learned counsel for the parties decreed both the suits through judgment and decree dated 18.03.2016. Feeling dissatisfied from the judgment Muhammad Imtiaz Khan has filed the captioned appeal.
During pendency of the appeals vide even dated orders passed on 17.06.2016, this Court ordered the appellants to deposit requisite Court fee. On this order the learned counsel for the appellants raised objection that no court fees is required to be affixed on the memo of appeal under the relevant provisions of Family Courts Act, therefore, order for depositing the court fee may be reviewed/withdrawn.
The learned counsel for the appellants and the learned amicus curiae, except Sardar Shamshad Hussain Khan, are unanimous on the point that section 19 of the Family Courts Act has specifically excluded the application of Court Fees Act, 1870, therefore, no court fee is payable on plaint filed before Family Court. As appeal is continuation of the suit and plaint hence, the same would be deemed to have been excluded from affixing the Court fee impliedly.
The learned counsel appearing for the respondents have also not defended the judgment reported as 2016 MLD 618.
We have heard the learned counsel for the parties as well as amicus curiae and gone through the case law on the point.
Before proceeding further it may be observed that the Family Courts in Azad Jammu and Kashmir have been established vide Act No.XI of 1994 for expeditious settlement and disposal of disputes relating to the family affairs and for the matters connected therewith as is evident from the preamble of the Act. The family Courts were vested with the jurisdiction to take cognizance and decide the disputes relating to the dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage and dowry as is listed in the schedule of the Act. For carrying out the purpose of the Act Family Courts Procedure Rules, 1998 have been enforced on 12.11.1998. The Act is self explanatory which defines the qualification of the Judge Family Court, mode of institution of suits, written statement, reconciliation and recording of evidence etc. The provisions of Evidence Act and Code of Civil Procedure have been made not applicable to the proceedings before Family Court in light of section 17 of the Act. Right of appeal is provided under section 14 of the Family Courts Act before the Azad Jammu and Kashmir Shariat Court and second appeal before the apex Court of Azad Jammu and Kashmir.
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As stated above the captioned appeals have been filed without affixing court fee on the memo of appeal, and an objection has been raised regarding their maintainability. In a case titled Muhammad Imtiaz Khan v. Shakeela Zafeer and another reported as 2016 MLD 618, Mr. Justice Azhar Saleem Babar, the learned Judge of Shariat Court has opined that appeal before this court is not competent without affixing Court fees. The learned Judge has further opined that section 19 of the Family Courts Act excludes plaint filed before the Family Court from court fees, not appeals before the Shariat Court, hence, without payment of Court fee in view of clause (2) of section 7 of Court Fees Act appeal is not competent. The learned Judge while deciding appeal relied upon following cases:-
1.Mirza Daud Baig v. Additional District Judge Gujranwala and others (1987 SCMR 1161).
2.Pervaiz Ahmad v. Tahra Shaheen alias Balquees Shahzadi (1988 CLC 1644).
In Mirza Daud Baig's case the apex Court of Pakistan examined the controversy at page 1164 and it was opined as under:-
"It requires no gainsaying that 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 of Schedule I of the Court Fees 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). It is noteworthy, however, that the concession with regard to the reduction in the court fee is restricted only to the "plaint", and not to "memorandum of appeal". The omission of appeal of "memorandum of appeal" in this section is significant because both the "plaint" and a "memorandum of appeal" are included in Article 1 of Schedule 1 of the Court Fees Act 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 (expression unisus, est exclusio alterius). It is manifest, therefore, that the Legislature intended to exclude from the purview of section 19 of the Family Court Act the "memorandum of appeal" and confined the concession with regard to payment of court fees only on a "plaint".
There can hardly be any doubt that a Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of section 6 thereof. It was held in Mst. Gaman v. Taj Din PLD 1968 Lah. 987 by our late lamented brother K.E. Chauhan, J. (while sitting in the High Court) that a Family Court was a Court for all purposes. This view was endorsed by a Division Bench of the Lahore High Court (consisting of Sardar Muhammad Iqbal and Ghulam Mujaddid Mirza, JJ.) in Muhammad Anwar Khan v. Additional District Judge etc. PLD 1978 Lah. 716 and reiterated by a Bench of the Sindh High Court (consisting of Abdul Kadir Shaikh, C.J. and Mahmood, J) in a case of Hamida Begum v. First Additional District Judge, Karachi (Constitutional Petition No. 1319 of 1975 decided on 24.02.1976)."
The next case relied upon by our learned colleague was a division bench case of Karachi High Court reported as Hameeda Begum v. First Additional District Judge and another (1988 CLC 1645) in which the same principle was laid down. In para 3 of the judgment it was observed as under:-
"The next submission of Mr. S.H. Rizvi is that a Family Court is not a Civil Court, and therefore, according to him, section 6 of the Court Fees Act, which prohibits the receiving of a memorandum of appeal unless the court-fee indicated in the schedule has been paid on the document, does not apply. This argument was fully considered by the Lahore High Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi PLD 1978 Lah. 716 and was repelled. We are in respectful
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agreement with the reasoning of that judgment. The Family Court is a Civil Court, despite the exclusion of the Civil Procedure Code and the Evidence Act in their application to proceedings before the Family Court. Moreover, the appeal in question was filed before the District Court under section 14 of the West Pakistan Family Courts Act. The District Court is undoubtedly, a Civil Court. There can be no doubt, therefore, that a memorandum of appeal to be filed before the District Court falls under Article 1 of Schedule 1 of the Court Fees Act, and court-fee in such cases is payable ad valorem on the subject-matter in dispute."
The matter again came up for consideration before the apex Court in Muhammad Shafqat Baig's case (1995 SCMR 1720). The apex Court reiterated the view taken in Mirza Daud Baig's case, supra and at page 1727 of the report in paras 7 and 8 observed as under:-
"7.The effect of section 19 of the Act is that only a fixed court-fee of Rs.15 was payable on the plaint of the present suit. Admittedly, above section 19 of the Act was not applicable to the memo. of appeal filed by the appellant against the aforesaid judgment of the Family Court. The question, therefore, arises, on what basis the court-fee was to be calculated for the purpose of the memo. of appeal. According to the learned counsel for respondent No.1, the court-fee was to be calculated in terms of section 7(ii) of the Court Fees Act i.e. ten times of the amount to be payable for one year, which comes to Rs.60;000 i.e. Rs.6000 at the rate of Rs.500 per month for one year multiplied by ten equivalent to Rs.60,000. As a corollary to the above submission, he has also urged that section 2 of the Ordinance is not applicable as it is applicable to a suit or an appeal, the subject-matter of which is not more than Rs.25,000.
8.The above contention is devoid of any force. Since section 19 of the Act provided a fixed court-fee of Rs.15 on any plaint before the Family Court, section 7(ii) of the Court Fees Act, which deals with the calculation of the court-fee inter alia on suits for maintenance is not applicable at all in view of the language of section 19, which provides "Notwithstanding anything contained in the Court Fees Act, 1872". In this view of the matter, there is no other section in the Court Fees Act dealing with the memo. of appeal arising out of suit to which section 7(ii) of the Court fees Act is not applicable."
In our humble view the ratio of the cases referred to herein above is not attracted so far legal position in Azad Jammu and Kashmir is concerned. Under section 19 of the Family Courts Act the proceedings before Family Court are exempted from the payment of Court Fee, so far memo of appeal is concerned in this regard the reference in the above referred judgments is made to section 7(ii) of the Court Fees Act read with Schedule-I according to which Court fees is to be paid on the memo of appeal before the High Court arising out money and maintenance suits. In Azad Jammu and Kashmir the legal position is altogether different. Under Section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal is provided to an aggrieved person from a decision or a decree passed by a Family Court within 30 days of the date of such decision or decree before this Court. No specific procedure for filing appeal is provided in the said Act. The constitution of Shariat Court and procedure for filing of appeals and other proceedings before this Court is provided under law known as Azad Jammu and Kashmir Shariat Court Act, 1993. This Act provides that any type of jurisdiction can be conferred on the Shariat Court by or under any law. For regulating its procedure the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 have been enforced. Chapter III of these rules deals with form and contents of appeal and its presentation. No Court fee is required on these appeals which is a special law. We have noticed that in Chapter VII, Rule 39 the mode for applying the copies of judgment etc. is provided. Under section 40 it is provided that every application for supply of copies shall be made in Form 5 and shall bear a Court-fee stamp of one rupee, as is provided in clause (c) of Article 1 of
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Schedule II of the Court Fees Act, 1870. Similarly under Rule 41 charges for the copies are also mentioned. We therefore, have reached at the conclusion that provisions of the Court Fees Act are applicable to the proceedings before this Court only to the extent of Rules 40 and 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982. So far affixing the Court fee on the memo of appeal and other documents is concerned that has been impliedly excluded. Though Family Courts are civil Courts, however, plaints before them are exempted from the Court fee under Section 19 of the Family Courts Act but for the purpose of appeal the Family Courts are not mentioned in the Court Fees Act. Therefore, it can safely be said that no court fee on the memo of appeal before this Court was payable. Law is well settled that express mentioning of one thing implies the exclusion of the other. It can safely be concluded that the Court Fees Act is applicable only to the extent of Rules 40 and 41 mentioned hereinabove. Prior to the promulgation of the Shariat Court Act, 1993, the Shariat Benches of Superior Courts Rules, 1979 were holding field. In Chapter IV section 15 it is provided that:-
"No, Court Fee, Process Fee or Search Fee shall be charged and no security for costs required in the appeals filed under these Rules. Copying charges shall however, he made in respect of copies of the judgments and orders of the Shariat Appellate Bench supplied to parties to the proceedings before the Bench or to the outsiders".
Though these rules have been impliedly repealed after enactment of Shariat Court Act, 1993 and the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 but these rules can be taken into consideration for judging the intention of legislature.
The upshot of the above discussion is that no court fee is required to be paid on the memo of appeal and the judgment reported as 2016 MLD 618 is overruled. The appeals shall come up for arguments on merits at circuit Rawalakot on 24-11-2016.
HBT/11/Sh.C(AJ&K)Order accordingly.
[Shariat Court (AJ&K)]
Before Ghulam Mustafa Mughal, C.J. and Sadaqat Hussain Raja, J
ABDUL HAMEED KHAN and others----Appellants
Versus
SAKEENA BEGUM and others----Respondents
Family Appeals Nos.110 of 2015 and 33 of 2016, decided on 1st November, 2016.
Azad Jammu and Kashmir Family Courts Act (XI of 1993)---
----Ss. 5, Sched., 14 & 15---Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982, Rr.40 & 41---Suit for recovery of dower amount and maintenance allowance---Appeal without affixing court-fee on memo. of appeal---Two suits, one for recovery of dower amount, and the other for maintenance allowance were decreed by the Trial/Family Court; defendants feeling dissatisfied from the judgment of the Family Court filed appeal, without affixing court-fee on the memo. of appeal---Objection was raised regarding maintainability of appeal without affixing court-fee---Validity---Under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal was provided to an aggrieved person from a decision or decree passed by a Family Court---No specific procedure for filing appeal was provided in the Act---Constitution of Shariat Court and procedure for filing of appeals and other proceedings before the Shariat Court, was provided under Azad Jammu and Kashmir Shariat Court Act, 1993---For regulating procedure of the Act, Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 had been enforced; which dealt with form and contents of appeal and its presentation, and no court-fee was required on those appeals---Provisions of the Court Fees Act, 1870, were applicable to the proceedings before the Shariat Court to the extent of Rr.40 & 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982---Fixation of court-fee on the memo of appeal and other documents, had been impliedly excluded---Family Court, though was a civil court, but plaint before such court, was exempted from the court-fee under S.19 of the Azad Jammu and Kashmir Family Courts Act, 1993---No court-fee was required to be paid on the memo of appeal, in circumstances. Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.
Muhammad Imtiaz Khan v. Shakeela Zafeer and another 2016 MLD 618 overruled.
Mirza Daud Baig v. Additional District Judge Gujranwala and others 1987 SCMR 1161; Pervaiz Ahmad v. Tahra Shaheen alias Balquees Shahzadi 1988 CLC 1644; Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 and Muhammad Shafqat Baig's case 1995 SCMR 1720 ref.
Miss Kanwal Raheem for Appellants (in Appeal No.110 of 2015).
Sardar Khalid Mehmood Khan for Respondents (in Appeal No.110 of 2015).
Sardar Masood Ibrahim Khan for Appellant (in Appeal No.33 of 2016).
Sardar Javed Nisar for Respondents (in Appeal No.33 of 2016).
Sardar Khan as Amicus Curiae.
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JUDGMENT
GHULAM MUSTAFA MUGHAL, C.J.--- As common questions of facts and law are involved in the captioned appeals hence, both the appeals were heard together and are decided as such.
Precise facts of Appeal No.110/2015 are that Sakeena Begum, respondent, herein, filed two suits one for recovery of dower amounting to Rs.250000/- and the other for maintenance allowance. Defendants contested the suit by filing written statement. At the conclusion of the proceedings the learned Civil Judge/ Family Judge Court No.II Rawalakot decreed both the suits through the impugned judgment and decree dated 30.10.2015. Feeling aggrieved from the aforesaid judgment and decree Abdul Hameed Khan, appellant, herein, has filed the captioned appeal.
Brief facts of Appeal No.33/2016 are that Hafeeza Begum, respondent, herein, filed two suits one for recovery of dower amounting to Rs.20000/- and the second for recovery of maintenance for Idat period against Muhammad Imtiaz Khan, appellant herein. The defendant contested the suits by filing written statement. The learned trial Court after hearing the learned counsel for the parties decreed both the suits through judgment and decree dated 18.03.2016. Feeling dissatisfied from the judgment Muhammad Imtiaz Khan has filed the captioned appeal.
During pendency of the appeals vide even dated orders passed on 17.06.2016, this Court ordered the appellants to deposit requisite Court fee. On this order the learned counsel for the appellants raised objection that no court fees is required to be affixed on the memo of appeal under the relevant provisions of Family Courts Act, therefore, order for depositing the court fee may be reviewed/withdrawn.
The learned counsel for the appellants and the learned amicus curiae, except Sardar Shamshad Hussain Khan, are unanimous on the point that section 19 of the Family Courts Act has specifically excluded the application of Court Fees Act, 1870, therefore, no court fee is payable on plaint filed before Family Court. As appeal is continuation of the suit and plaint hence, the same would be deemed to have been excluded from affixing the Court fee impliedly.
The learned counsel appearing for the respondents have also not defended the judgment reported as 2016 MLD 618.
We have heard the learned counsel for the parties as well as amicus curiae and gone through the case law on the point.
Before proceeding further it may be observed that the Family Courts in Azad Jammu and Kashmir have been established vide Act No.XI of 1994 for expeditious settlement and disposal of disputes relating to the family affairs and for the matters connected therewith as is evident from the preamble of the Act. The family Courts were vested with the jurisdiction to take cognizance and decide the disputes relating to the dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage and dowry as is listed in the schedule of the Act. For carrying out the purpose of the Act Family Courts Procedure Rules, 1998 have been enforced on 12.11.1998. The Act is self explanatory which defines the qualification of the Judge Family Court, mode of institution of suits, written statement, reconciliation and recording of evidence etc. The provisions of Evidence Act and Code of Civil Procedure have been made not applicable to the proceedings before Family Court in light of section 17 of the Act. Right of appeal is provided under section 14 of the Family Courts Act before the Azad Jammu and Kashmir Shariat Court and second appeal before the apex Court of Azad Jammu and Kashmir.
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As stated above the captioned appeals have been filed without affixing court fee on the memo of appeal, and an objection has been raised regarding their maintainability. In a case titled Muhammad Imtiaz Khan v. Shakeela Zafeer and another reported as 2016 MLD 618, Mr. Justice Azhar Saleem Babar, the learned Judge of Shariat Court has opined that appeal before this court is not competent without affixing Court fees. The learned Judge has further opined that section 19 of the Family Courts Act excludes plaint filed before the Family Court from court fees, not appeals before the Shariat Court, hence, without payment of Court fee in view of clause (2) of section 7 of Court Fees Act appeal is not competent. The learned Judge while deciding appeal relied upon following cases:-
1.Mirza Daud Baig v. Additional District Judge Gujranwala and others (1987 SCMR 1161).
2.Pervaiz Ahmad v. Tahra Shaheen alias Balquees Shahzadi (1988 CLC 1644).
In Mirza Daud Baig's case the apex Court of Pakistan examined the controversy at page 1164 and it was opined as under:-
"It requires no gainsaying that 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 of Schedule I of the Court Fees 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). It is noteworthy, however, that the concession with regard to the reduction in the court fee is restricted only to the "plaint", and not to "memorandum of appeal". The omission of appeal of "memorandum of appeal" in this section is significant because both the "plaint" and a "memorandum of appeal" are included in Article 1 of Schedule 1 of the Court Fees Act 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 (expression unisus, est exclusio alterius). It is manifest, therefore, that the Legislature intended to exclude from the purview of section 19 of the Family Court Act the "memorandum of appeal" and confined the concession with regard to payment of court fees only on a "plaint".
There can hardly be any doubt that a Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of section 6 thereof. It was held in Mst. Gaman v. Taj Din PLD 1968 Lah. 987 by our late lamented brother K.E. Chauhan, J. (while sitting in the High Court) that a Family Court was a Court for all purposes. This view was endorsed by a Division Bench of the Lahore High Court (consisting of Sardar Muhammad Iqbal and Ghulam Mujaddid Mirza, JJ.) in Muhammad Anwar Khan v. Additional District Judge etc. PLD 1978 Lah. 716 and reiterated by a Bench of the Sindh High Court (consisting of Abdul Kadir Shaikh, C.J. and Mahmood, J) in a case of Hamida Begum v. First Additional District Judge, Karachi (Constitutional Petition No. 1319 of 1975 decided on 24.02.1976)."
The next case relied upon by our learned colleague was a division bench case of Karachi High Court reported as Hameeda Begum v. First Additional District Judge and another (1988 CLC 1645) in which the same principle was laid down. In para 3 of the judgment it was observed as under:-
"The next submission of Mr. S.H. Rizvi is that a Family Court is not a Civil Court, and therefore, according to him, section 6 of the Court Fees Act, which prohibits the receiving of a memorandum of appeal unless the court-fee indicated in the schedule has been paid on the document, does not apply. This argument was fully considered by the Lahore High Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi PLD 1978 Lah. 716 and was repelled. We are in respectful
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agreement with the reasoning of that judgment. The Family Court is a Civil Court, despite the exclusion of the Civil Procedure Code and the Evidence Act in their application to proceedings before the Family Court. Moreover, the appeal in question was filed before the District Court under section 14 of the West Pakistan Family Courts Act. The District Court is undoubtedly, a Civil Court. There can be no doubt, therefore, that a memorandum of appeal to be filed before the District Court falls under Article 1 of Schedule 1 of the Court Fees Act, and court-fee in such cases is payable ad valorem on the subject-matter in dispute."
The matter again came up for consideration before the apex Court in Muhammad Shafqat Baig's case (1995 SCMR 1720). The apex Court reiterated the view taken in Mirza Daud Baig's case, supra and at page 1727 of the report in paras 7 and 8 observed as under:-
"7.The effect of section 19 of the Act is that only a fixed court-fee of Rs.15 was payable on the plaint of the present suit. Admittedly, above section 19 of the Act was not applicable to the memo. of appeal filed by the appellant against the aforesaid judgment of the Family Court. The question, therefore, arises, on what basis the court-fee was to be calculated for the purpose of the memo. of appeal. According to the learned counsel for respondent No.1, the court-fee was to be calculated in terms of section 7(ii) of the Court Fees Act i.e. ten times of the amount to be payable for one year, which comes to Rs.60;000 i.e. Rs.6000 at the rate of Rs.500 per month for one year multiplied by ten equivalent to Rs.60,000. As a corollary to the above submission, he has also urged that section 2 of the Ordinance is not applicable as it is applicable to a suit or an appeal, the subject-matter of which is not more than Rs.25,000.
8.The above contention is devoid of any force. Since section 19 of the Act provided a fixed court-fee of Rs.15 on any plaint before the Family Court, section 7(ii) of the Court Fees Act, which deals with the calculation of the court-fee inter alia on suits for maintenance is not applicable at all in view of the language of section 19, which provides "Notwithstanding anything contained in the Court Fees Act, 1872". In this view of the matter, there is no other section in the Court Fees Act dealing with the memo. of appeal arising out of suit to which section 7(ii) of the Court fees Act is not applicable."
In our humble view the ratio of the cases referred to herein above is not attracted so far legal position in Azad Jammu and Kashmir is concerned. Under section 19 of the Family Courts Act the proceedings before Family Court are exempted from the payment of Court Fee, so far memo of appeal is concerned in this regard the reference in the above referred judgments is made to section 7(ii) of the Court Fees Act read with Schedule-I according to which Court fees is to be paid on the memo of appeal before the High Court arising out money and maintenance suits. In Azad Jammu and Kashmir the legal position is altogether different. Under Section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993 right of appeal is provided to an aggrieved person from a decision or a decree passed by a Family Court within 30 days of the date of such decision or decree before this Court. No specific procedure for filing appeal is provided in the said Act. The constitution of Shariat Court and procedure for filing of appeals and other proceedings before this Court is provided under law known as Azad Jammu and Kashmir Shariat Court Act, 1993. This Act provides that any type of jurisdiction can be conferred on the Shariat Court by or under any law. For regulating its procedure the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 have been enforced. Chapter III of these rules deals with form and contents of appeal and its presentation. No Court fee is required on these appeals which is a special law. We have noticed that in Chapter VII, Rule 39 the mode for applying the copies of judgment etc. is provided. Under section 40 it is provided that every application for supply of copies shall be made in Form 5 and shall bear a Court-fee stamp of one rupee, as is provided in clause (c) of Article 1 of
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Schedule II of the Court Fees Act, 1870. Similarly under Rule 41 charges for the copies are also mentioned. We therefore, have reached at the conclusion that provisions of the Court Fees Act are applicable to the proceedings before this Court only to the extent of Rules 40 and 41 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982. So far affixing the Court fee on the memo of appeal and other documents is concerned that has been impliedly excluded. Though Family Courts are civil Courts, however, plaints before them are exempted from the Court fee under Section 19 of the Family Courts Act but for the purpose of appeal the Family Courts are not mentioned in the Court Fees Act. Therefore, it can safely be said that no court fee on the memo of appeal before this Court was payable. Law is well settled that express mentioning of one thing implies the exclusion of the other. It can safely be concluded that the Court Fees Act is applicable only to the extent of Rules 40 and 41 mentioned hereinabove. Prior to the promulgation of the Shariat Court Act, 1993, the Shariat Benches of Superior Courts Rules, 1979 were holding field. In Chapter IV section 15 it is provided that:-
"No, Court Fee, Process Fee or Search Fee shall be charged and no security for costs required in the appeals filed under these Rules. Copying charges shall however, he made in respect of copies of the judgments and orders of the Shariat Appellate Bench supplied to parties to the proceedings before the Bench or to the outsiders".
Though these rules have been impliedly repealed after enactment of Shariat Court Act, 1993 and the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982 but these rules can be taken into consideration for judging the intention of legislature.
The upshot of the above discussion is that no court fee is required to be paid on the memo of appeal and the judgment reported as 2016 MLD 618 is overruled. The appeals shall come up for arguments on merits at circuit Rawalakot on 24-11-2016.
HBT/11/Sh.C(AJ&K)Order accordingly.
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