This appeal is directed against the judgment dated 2-9-1976 of the learned Additional District Judge, Sargodha. The facts necessary for the purposes of this appeal briefly stated are that the appellants filed two separate suits against the respondents, each praying for a declaration that land measuring 102 kanals respectively owned by the appellants and detailed in each plaint, situated in village Rawana Tehsil Bhalwal, District Sargodha, was owned by them and that the respondents had no concern with it, with the consequential relief by way of a permanent injunction restraining the defendants front interfering in the rights of ownership and of possession of the appellants on the land in dispute. The suit was filed against respondents Nos. 1 and 2 through their mother respondent No. 3 as guardian, (respondents Nos. 1 and 2 being minors at that time). At the time of institution of the suit application for appointment of respondent No. 3 as guardian had been made which was accepted by the learned trial Judge. Respondent No. 3, it may be pointed out, is the real mother of respondents Nos. 1 and 2. Both the suits were contested. These were however decreed by judgment dated 1410-1968 passed by the learned Civil Judge, Sargodha.
2. Respondents Nos. 1 and 2 preferred an appeal against this judgment and decree before the learned Additional District Judge, Sargodha. This appeal was instituted on 11-4-1973 and was filed through one Muhammad Inayat. The status of Muhammad Inayat was not disclosed anywhere in the appeal and no averment was made as to how he was competent to file the appeal on behalf of respondents Nos. I and 2. This appeal though belated by about 5 years, was accepted--by judgment dated 2-9-1976 and the cases were remanded to the trial Court.
3. Aggrieved by this judgment the appellants have come up to this Court in this first appeal from order of remand aforementioned.
4. One important fact that may also be mentioned at this stage is that the land in dispute had devolved upon the appellants on inheritance from their deceased fattier Lala. Originally the land in dispute in both the suits and some other land was owned by Lala. The said Lala died in 1964. On his death the total land in his name was mutated in favour of respondents Nos. 1 and 2 i.e. His sons, appellants Nos. 1 and 2, I.e. His two daughters, respondent No. 3 and one Mst. Gullan, the other widow of the deceased, vide mutation No. 574 sanctioned on 24-10-1964. It was through this mutation that Mst. Khurshid, and Mst. Sattan, the present appellants/ daughters of Lala each got 102 kanals of land in dispute. The written statement filed in the suits on behalf of respondents Nos. 1 and 2 were to the effect that the land in dispute though inherited by the appellants vi e mutation mentioned above, had been gifted by both the appellants to their brothers on 16-6-1965 vide Mutation No. 585.
5. The learned counsel for the appellants contended that the appeal filed before the learned Additional District Judge was incompetent firstly for the reason that the appeal had been filed against the order and not against the decree as is apparent from the tenor of the Memo of Appeal and also from the fact that no copy of the decree sheet had been filed along with the Memo of Appeal, and secondly for the reason that Muhammad Inayat, through whom the appeal before the lower Appellate Court was filed, was not competent to act as next friend of the appellants in view of the fact that respondent No. 3, the mother of respondents Nos. 1 and 2 was already on record as next friend and had to continue as such until she bad been removed by the Court. The appeal, he submitted, could only be filed though her. He in this regard referred to the provisions of Order XXXII, rule 3 (5) of the Code of Civil Procedure.
6. Elaborating his contentions regarding the first objection as to the competence of the appeal before the lower Appellate Court, the learned counsel submitted that when the appeal before the learned Additional District Judge was filed, the objection was raised about the non-filing of the copy of decree-sheet and despite undertaking given by the counsel for the .Respondents, the decree-sheet was not provided. He submitted that it is mandatory for a party to file copy of the impugned decree with the appeal. In the absence of such a copy, he submitted the appeal was incompetent, and the provisions of Order XLI, rule 1, C. P. C. In this behalf leave no manner of doubt.
Reliance was placed by the learned counsel in support of this contention on Reasat Ali Khan v.
Mahfuz Ali Khan and others (AIR 1929 Lah. 771) Ilakam Beg and others v. Rahiin Shah and others (AIR 1927 Lah. 912) and Sana Ullah and others v. Ghulam Qadir and others (PLD 1958 Pesh. 213).
7. The second contention raised by the learned counsel for the appellants was that the appeal was hopelessly barred by time and no sufficient reasons were advanced for condonation of the inordinate delay. The reason that respondents being minors could file appeal till they had attained majority by virtue of section 6 of the Limitation Act he submitted, was fallacious inasmuch as section 6 ibid does not apply to appeals. He relied upon Khatoon Begum and others v. Hoshang N.
R. Dinshaw and others (1969 SCMR 246) to support his above contention.
8. The third contention raised by him was that there was no evidence on record to show that the decree in favour of the appellants had been obtained collusively and fraudulently. He submitted that in fact the record does not even remotely show that Mst. Sattan, respondent No. 3 mother of respondents Nos. 1 and 2 had married Sher Muhammad, the husband of appellant No. 2. He argued that in the nature of things such a marriage could not take place as respondent No. 3, Mst. Sattan and appellant No. 2 Mst. Sattan were step-mother and step-daughter respectively. The alleged identity of interest of Mst. Sattan respondent No. 3 with Mat. Sattan appellant No. 2 as both were allegedly wives of Sher Muhammad was in any case not available so far as Khursbid Bibi appellant No. 1 was concerned. He also submitted that even the alleged mutation of gift, was not proved on record.
9. In the above context of the evidence, he urged that there was no case of fraud made out on merits even and in any case there being no specific allegations of fraud levelled as was required under Order VI,. Rule 4, C. P. C., the lower Appellate Court was not justified in holding that the decree impugned before it was obtained collusively and fraudulently. The learned counsel placed reliance on Faqir Muhammad and 5 others v. Sheikh Nasim Ahmad (PLD 1979 Lah. 356) to contend that when fraud is alleged, it has got to be specifically pleaded.
10. The fourth contention raised by the learned counsel for the appellant was that the only remedy for the respondents was to have filed a suit for a declaration that the decree of the trial Court was void having been obtained by fraud. The allegations of fraud, it was submitted, could not have been adjudicated upon in an appeal. He argued that fraud is a matter which can only be gone into after the parties had led evidence.
11. The last contention raised by the learned counsel was that remand of the case should not have been ordered as Supreme Court has held in Pramatha Nath Chowdhury and 17 others v. Kamir Mondal etc. (PLD 1965 SC 434) that when) there is sufficient evidence, the remand should not be lightly directed and the Appellate Court should decide the case on merits. He submitted that in the case in hand all necessary evidence was available on record an effectual adjudication of the appeal could be made by the lower Appellate Court.
12. On the other hand the learned counsel for the respondents submitted firstly that non-filing of certified copy was not fatal to the appeal as the decree impugned before the lower Appellate Court, was obtained by fraud and collusion and as such there was no decree at all in the eye of law especially when it affects the rights of the minors. He relying on Hasna Hena Akhtari Begun v. Dacca Improvement Trust and others (PLD 1969 Dacca 82) contended that non-filing of the certified copy of the decree is not fatal to the appeal itself. It was for the lower Appellate Court to have got removed the defect and by having proceeded to decide the appeal on merits without holding the appeal as incompetent on account of the above factor, the stage for objecting to the filing of decree sheet had passed. He referred to Jagat Dhish Bhargava v. Jawahar Lai Bhargava and others (AIR 1961 SC 832) in this regard. He also submitted that Muhammad Aqil Khan v. Akhtar Hussain and others (PLD 1971 Kar. 864) is a complete answer to the objections raised as the appeal being barred by limitation. The last contention raised by the learned counsel for the respondents was that the plea as to the appeal being incompetent having been filed by a person, who was not the duly appointed next friend of minor respondents cannot be allowed to be taken as it has not been raised in the Memo of Appeal.
13. The learned counsel for the appellants in reply submitted that Jagat Dhesh Bhargava v.
Jawahar Lot Bhargava etc. in fact supports the case of the appellants in that the objection as to the non-filing of copy of the decree was raised by the office of the lower Appellate Court at the very initial stage and despite undertaking of respondents they failed to remove the objection. He also urged that there is neither any order of the lower Appellate Court dispensing with the filing of decree sheet nor could such an order be passed.
14. Having given anxious consideration to the controversy involved, I am inclined to agree with the contentions raised on behalf of the appellants. The non-filing of a certified copy of the decree sheet along with the appeal filed before the lower Appellate Court especially even after the( objection had been raised by the office and the counsel for the respondents (appellants in the lower Appellate Court) had undertaken to file the same manifestly established the contumacious neglect to comply with the mandatory provisions of Order XLI, rule 1, C. P. C. There is no lack of authority on the point that an appeal under section 96, C. P. C. Is only competent when accompanied by a certified copy of the impugned decree. Reference may be made in this regard to the authorities cited on behalf of the appellants. It may be pertinently pointed out here that the case cited by the learned counsel for the respondents is not applicable to the facts of this case inasmuch as the said case related to an appeal filed against an order rejecting the plaint, which order by the deeming clause section 2 (2), C. P. C. Has been included in the definition of a decree.
The principle laid therein was that filing of decree in appeal from order rejecting plaint is not a sine qua non. The appeal before the lower Appellate Court in view of the above discussion was clearly incompetent.
15. The next contention raised by the learned counsel for the appellants also has force. A bare reading of section 6, Limitation Act, 1908 shows that the provision is intended to apply only to suits and applications and not to appeals. If any authority is needed on the point reference may usefully be made to Khatoon Begum and others v. Hoshang N. E. Dinsha and others. The condonation of delay by the lower Appellate Court by impliedly deriving support from section 6 ibid., when agreeing with the contention that the respondents have a right to file the appeal even after attaining majority is unwarranted in law. The exercise of discretion to condone the inordinate delay of about five years in filing the appeal, suffice it to say cannot be said to be a judicious and legal exercise of discretion and on the facts and circumstances of this case cannot be maintained.
Before parting with this aspect of she case it would be appropriate to deal with the contention raised on behalf of the respondents in this regard which was merely a reference to Muhammad Aqil Khan v. Akhtar Hussain and others. Now this authority deals with a suit filed by a minor and thus. Has no application to the case in hand.
16. The submission made by the learned counsel for the respondent that the decree impugned before the lower Appellate Court having been obtained fraudulently and collusively was no decree in the eye of law an could be assailed without filing a copy thereof, has no merit. If anything is sought to be challenged on the basis of allegations of fraud and collusion, it has first got to be specifically alleged as to what was the precise fraud and collusion and then to establish the same before one can succeed to have it set aside. It has been rightly pointed out by the learned counsel for the appellants that there was nothing on record and no inference even could be drawn as to any fraud having been committed in the obtaining of decree passed by the trial Court, more so when the guardian appointed by the Court was not even got removed before filing the appeal. It has also been rightly argued by the learned counsel for the appellants that the remedy for the respondents if they felt that the decree had been obtained by fraud was to have it set aside through a suit which was the proper forum for D such matter as parties could support their respective contentions by evidence etc. Refer Raj Gopal Acharjya Goswami v. Upendra Acharjy Goswami (AIR 1926 Pat 528).
17. At this stage it may also be mentioned that the objection to the competence of the appeal before the lower Appellate Court on the ground that it had not been filed by a competent person has also great force. Order XXXII, rule 3 (5), C. P. C. Provides that any person appointed as guardian under sub-rule (1) of rule 3 shall continue as such throughout in all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree unless the appointment is terminated by retirement, removal or death. Now, the admitted position is that Mst. Sattan respondent No. 3 was the duly appointed guardian and before institution of the appeal neither she had retired, nor died or g removed as a guardian. The filing of the appeal by a third person without even disclosing the capacity in which he had filed the appeal on behalf of the minors in the attendant circumstances of this case was obviously illegal and the appeal was liable to be rejected on this ground alone.
In view of the foregoing discussion this appeal is accepted with costs throughout and the impugned order dated 2-9-1976 passed by the Additional District Judge, Sargodha is set aside.