Saturday, 19 May 2012

Court fee in cases of family suits

PLJ 2009 Lahore 780

[Multan Bench Multan]

Present: Muhammad Ahsan Bhoon, J.

MUHAMMAD SHAFQAT--Petitioner

versus

SHAHNAZ BIBI and another--Respondents

W.P. No. 6040 of 2008, decided on 19.1.2009.

West Pakistan Family Courts Act, 1964--

----Ss. 5 & 19--Constitution of Pakistan 1973, Art. 199--Constitutional jurisdiction--Case of dowry article--Provision of Court-fee--Exemption of levy of Court-fee--Court-Fee Act, does not apply to the cases of dowery--Constitutional jurisdiction--Section 5 of the West Pakistan Family Courts Act, (XXXV of 1964) stipulates that subject to the provisions of Muslim Family Laws Ordinance 1961, and conciliation Courts Ordinance, entertain, hear and adjudicate upon matters specified in Part 1 of the schedule and accordingly schedule (Part 1) of West Pakistan Family Courts Act (XXXV of 1964) was duly amended according to which the word "dowry" was included while Section 19 of the Act provides exemption of levy of Court fee on such like suits, therefore, the contention raised by the counsel for petitioner was of no avail to the petition--Petition dismissed with cost.  [Pp. 782 & 783] A, B & C

Ch. Saleem Akhtar Warriach, Advocate for Petitioner.

Mr. Bashir Ahmad Chaudhry, Advocate for Respondent No. 1.

Date of hearing: 19.1.2009.

Order

Through this Constitutional petition, petitioner has assailed the impugned judgments and decrees dated 18.12.2007 passed by the learned Judge Family Court, Vehari and dated 10.6.2008 passed by the learned Additional District Judge, Vehari, whereby, suit for recovery of dowry articles to the extent of Rs.2,00,000/- was decreed and appeal filed by the petitioner against the said judgment and decree, was dismissed, hence this petition.

2.  Brief facts of the case are that the petitioner contracted marriage with Respondent No. 1 on 24.2.2003 and a month thereafter relations between them became strained which led the Respondent No. 1 to file a suit for dissolution of marriage, recovery of maintenance and recovery of dowry articles. It was maintained in the suit that relations between them remained cordial for few days whereafter petitioner used to abuse and beat her and even false allegation of adultery was levelled against her and she was thrown out of his house in plain clothes only after one month of marriage. She further stated in the suit that no effort was made by the petitioner for rehabilitation. As per contents of the suit it was further maintained that at the time of marriage, she was given dowry articles valuing Rs. 2,32,141/- qua which a list was attached with the suit which was marked as Exh.P1.

3.  The suit filed by Respondent No. 1 was contested by the petitioner and a written statement was filed by him. Out of the divergent pleas of the parties, following issues were framed:--

"1.   Whether this Court has no territorial jurisdiction to adjudicate upon this suit? OPD

2.    Whether the matter in dispute has been finally heard, disposed of and had become res-judicata? OPD

3.    Whether the plaintiff was given dowry articles according to the list annexed with the plaint showing 83 articles? OPD

4.    Whether the plaintiff was given dowry articles according to list produced by defendants showing 29 articles? OPD

5.    Whether the plaintiff is entitled to the decree for the recovery of dowry articles from the defendant or its alternative price of Rs. 2,32,141/-? OPP

6.    Whether the plaintiff is entitled to the decree for dissolution of marriage and if so on what ground? OPP

7.    Whether the plaintiff is entitled to the decree for maintenance allowance from the defendant and if so to what extent and for what period? OPP

8.    Relief.

4.  Learned counsel for the petitioner contends that both the Courts below have erred in law while not appreciating the pleadings of the parties as in para 15 of the plaint it was mentioned that the suit was worth Rs. 1,00,000/-; that it was admitted by the Plaintiff/Respondent No. 1, who appeared as PW1, that Exh.P1 and Exh.P15 were forged documents; that the petitioner is still ready to return the dowry articles which are lying with him, therefore, judgments and decrees of both the Courts below are liable to be set-aside by this Court.

5.  On the other hand, learned counsel for Respondent No. 1/plaintiff has opposed the contentions raised above by the learned counsel for the petitioner by contending that the Court Fees Act does not apply to the cases of dowry because as per Section 19 (as amended by Family Courts(Amendment) Ordinance (VII of 2002), Section 5 of the West Pakistan Family Courts Act (XXXV of 1964) and its Schedule (Part 1), dowry is exempted from the Court fee and that the suit filed by Respondent No. 1/plaintiff was qua the dowry articles, therefore, the decretal amount was as an alternate to the dowry articles. In support of the above contentions, learned counsel has relied on Aftab Mohyuddin vs. Additional District Judge and 2 others (2004 MLD 696).

6.  I have heard learned counsel for the parties and have also gone through the evidence certified copies of which have been placed on the file.

7.  Although the evidence produced by both the parties was appreciated by the learned Judge Family Court as well as the Court of appeal and is not requirement in the Constitutional jurisdiction of this Court, yet, in the interest of justice and fair play, I have scanned the evidence and found that there is no mis-reading, non-reading or jurisdictional defect in the impugned judgments and decrees of both the Courts below, rather, the contention of learned counsel for the petitioner qua the forgery of Exh.P1 and Exh.P15 is not born out from the record. I have also gone through the relevant provisions of law. Section 5 of the West Pakistan Family Courts Act (XXXV of 1964) stipulates that "subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the conciliation Courts Ordinance, entertain, hear and adjudicate upon matters specified in Part 1 of the Schedule" and accordingly Schedule (Part 1) of West Pakistan Family Courts Act (XXXV of 1964) was duly amended according to which the word "dowry" was included while Section 19 of the Act ibid provides exemption of levy of Court fee on such like suits, therefore, the contention raised by the learned counsel for the petitioner is of no avail to the petitioner. Similarly, the precedent case law cited by the learned counsel for Respondent No. 1 reported  as  Aftab Mohyuddin vs. Additional District Judge and 2 others  (2004 MLD 696), lays down that in a case of dowry articles, the provisions of Court Fee Act do not attract as decretal amount was an alternative. In this view of the matter, I do not find any reason to interfere with the impugned judgments and decrees of both the Courts below in the Constitutional jurisdiction of lis Court, therefore, this writ petition is dismissed with a cost of Rs.5,000/- which shall be paid to Respondent No. 1.

 (N.I.)     Petition dismissed.


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