' CHAUDHARY MUHAMMAD TAJ.---The above captioned appeals raise common questions of facts and law as such are disposed of by this consolidated order.
2. The appeal titled Sajid Mehmood v. Khalid Pervaiz Qureshi and others (Civil Appeal No,84 of 2004) has been filed against the judgment and decree passed by the High Court on 9-7-2004 whereby an appeal filed by the respondents against the judgment and decree of the District Judge, Mirpur was maintained. However, granted three days to make payment of the remaining amount to the appellant.
3. The facts necessary for the disposal of these appeals are that plaintiff-respondent Khalid Pervaiz Qureshi filed a suit for specific performance of a contract, dated 12-4-2004 in the Court of District Judge. Mipur on 28-5-2004 against defendant-appellant and others (Civil Appeal No,84 of 2004). It was claimed that Plot No,5I5 measuring 65' x 75' situate in sub-sector F-3 Part 1, Mirpur was to he transferred to the respondent for a consideration of Rs, 1,25,000,00. The plaintiff-respondent paid rupees five lacs as earnest money. The appellant-defendnat appeared before the trial Court and admitted the claim of the plaintiff-respondent. The District Judge decreed the suit on the condition that the balance amount of Rs,1,20,000.00 be paid to the defendant-appellant on or before 30-6- 2004 otherwise the suit shall stand dismissed vide judgment and decree, dated 22-6-2004. The respondent preferred an appeal before the High Court. An application for suspension of the judgment and decree was also moved. After hearing the parties the High Court maintained the judgment and decree passed by the District Judge and granted three more days for the payment of consideration amount. The aforesaid judgment and decree was challenged through an appeal tiled by the appellant. Respondent No,1 also attacked the aforesaid judgment and decree through an appeal titled Khalid Pervaiz Qureshi v. Sajid Mehmood and others (Civil Appeal No,96 of 2004) which shall be dealt with later on.
4. A preliminary objection was raised as to the maintainability of the appeal on the ground that the appeal has been filed without a copy of the grounds of appeal which, according to the law, was mandatory and thus the appeal entails dismissal on the aforesaid ground.
5. Mr. Abdul Majeed Mallick, the learned counsel for the appellant, though moved an application to allow him to file the said document but he did not seriously press it. We may observe that under Order XIII rule 3(1) sub-rule(ii) the filing of the aforesaid document was necessary. The rule is reproduced:-- "(3) (1)
(i)
(ii) the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under section 42(11) of the Constitution, if any, one copy each of which shall be certified to be correct:-- ' The proposition also came under consideration before this Court in a case reported as Muhammad Hanif v. Muhammad Bashir and another 2004 YLR 173 where the same was resolved in the following words:- "(6) Today the same objection was raised on behalf of the learned counsel for Muhammad Bashir that the requirements contained in rule 3 sub-rules (i) and (ii) of Order XIII of the Supreme Court Rules are mandatory in nature and in number of cases this Court without entering into the merits of the appeals dismissed such appeals on this very ground. The reliance was placed by him on a case reported as Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others (1999 YLR 1426), wherein some other authorities given by this Court and the Supreme Court of Pakistan were relied and it was held that the observance of rule 3 sub-rules (i) and (ii) of Order XIII is mandatory and any party failing to observe the same unless has sufficient cause for condonation would render his appeal or petition as incompetent."
6. The appellant did not file the aforesaid document within the period of limitation and moved the application which did not show the sufficient cause as such the application is dismissed and the appeal on the aforesaid ground also stands dismissed with no order as to costs.
7. The other appeal titled Khalid Pervaiz Qureshi v. Sajid Mehmood and others (Civil Appeal No,96 of 2004) is directed against the judgment and decree passed by the High Court as mentioned above.
The appellant herein has challenged the judgment on the ground that the trial Court as well as the High Court have not provided the appellant sufficient time to deposit the rest of the consideration amount, i.e, Rs,1,20,000.00, therefore, he sought further time of two months which, according to the appellant, was reasonable and the same would serve the ends of justice.
8. Mr. Abdul Majeed Mallick, the learned counsel representing respondent No,1 Sajid Mehmood, raised following preliminary objections:--
(i) That a consent decree was passed in favour of the appellant as such he had no cause of action to file appeal before the High Court or this Court;
(ii) that the appeal was filed before the High Court without a copy of decree, therefore, was not maintainable; and
(iii) that the appeal before the Supreme Court under section 42 of the AJK Interim Constitution Act, 1974 was not competent as neither the decree appealed from was varied nor set aside.
9. Ch. Jehandad Khan, the learned counsel representing the appellant, contended that the appeal was competent as, according to him, the learned Judge in the High Court after hearing the parties granted three more days for deposit for the rest of the consideration amount which also did not meet the ends of justice in the circumstances of the case as such appeal was filed in the Supreme Court where through interim relief the appellant was provided ten days to do the needful and the appellant in consequence deposited the entire amount. The learned counsel also prayed that further period may be allowed so that the appellant could deposit the amount.
10. We have heard the learned counsel for the parties and also gone through the record. The appellant filed an appeal before the High Court against the judgment and decree of the District Judge, Mirpur passed on admitting the claim of the appellant and thus was a consent decree and no appeal was competent. It is relevant to mention that the learned Judge in the High Court also did not vary or set aside the judgment and decree passed by the trial Court. The relevant observations while disposing of the appeal by the High Court are usefully reproduced;-- " ,A perusal of the appeal reveals that the decree of the trial Court has not been appended with the memo. Of the appeal. Moreover, in view of the agreement and conduct of the appellant, the time fixed by the trial Court seem was reasonable and unexceptional. However, on filing- of the appeal, this Court has suspended the order of 28-6-2004. The plaintiff was to make the payment up till 30- 6-2004, therefore, he is allowed 3 days time from today for making the remaining payment failing which his suit shall be deemed as dismissed. The order of the trial Court is amended to this extent." {{PAGE CUTTING}} ' Therefore, the decree was neither amended nor set aside. The learned Judge granted three days for the reason that at the time of filing of appeal the judgment and decree of the trial Court was suspended, therefore, was necessary to give time to the appellant for deposit of the amount. As such a dire appeal under the Constitutional provision could not be filed. It may also be added it was held by the learned Judge in the H Court the appeal was filed without a c of decree as such the same was dismissed on the aforesaid ground as well. Their nothing on the record which may show the appellant had applied for issuance copy and the same was not supplied I which may furnish a ground of dispensation of the same.
11. In view of the above, the appeal is found to have no substance in it. Resultantly, it' fails with no order as to costs. Consequently, the miscellaneous application also stands dismissed.