1. This appeal is directed against the judgment of District Judge Sudhanoti dated 27.03.2007, whereby, the suit of appellant was dismissed.
2. Precise facts of the case are that appellant filed a suit for recovery of amount of Rs, 2250000/- in the Court of District Judge Sudhanoti. It was alleged in plaint that plaintiff is Chairman of Col. Mansha Khan Trust and he wants to construct a Hospital at Tangi Galla and for this purpose, he purchased 6 marla land from Muhammad Saeed. and collected the. material for construction of hospital and appointed. Defendant No, 6 as incharge of the construction. Defendant No, 6 purchased material on the direction of plaintiff including machinery for factory any labour advance, total cost which he spent was 2250000/-.
3. Defendant Nos, 1 & 4 with collusion of Defendant Nos, 2 & 3 filed a suit in the Court of Civil Judge Tarar Khal titled Dil Jan & others Mrs. Muhammad Said & others and also got injunction in their favour against the plaintiff to stop the work of construction of hospital. The stay order was vacated by District Judge Sudhanoti on 25.01.2006. An appeal was filed before High Court by defendant which was also dismissed on 27.04.2006. In this way the defendants caused a loss of Rs, 2250000/- and plaintiff prayed to grant a decree in his favour regarding said money.
4. The defendants were summoned and, after appearance before the Court, they contested the suit and submitted written statement in which they negated the allegations of the plaint and prayed to dismiss the suit at early stage due to non-disclosure of cause of action. The issues were framed and parties were ordered to lead evidence in respect of their claims for and against. And at the same date of hearing, the trial Court reviewed his order and fixed the next date of hearing for argument on Issues Nos, 1 to 4 on 13.10.2006. After hearing the argument on Issues Nos, 1 to 4, the trial Court decided the said issues against plaintiff and dismissed the suit with cost, hence this appeal.
5. The learned counsel for the appellant reiterated the grounds of appeal and further argued that impugned judgment is not according to law and facts. He also argued that the Court ordered firstly to lead evidence and at the same date of hearing said order was reviewed and ordered to make the argument on issues 1 to 4. He argued that trial Court fell in error to dismiss the suit without recording evidence. Lastly, he prayed to accept the appeal and remand the case to the trial Court for fresh decision.
6. The learned -counsel for the respondents argued that the trial Court has rightly dismissed the suit and impugned judgment requires no legal interference. He further argued that incompetent suit should be laid at the rest at the earliest stage. He argued that plaintiff has no cause of action.
7. Lastly, he prayed to dismiss the appeal.
8. I have heard the learned counsel for the parties and gone through the record of the case carefully.
9. In this case, which is in hand the copy of decree sheet of District Judge dated 27.03.2007 has not been filed with appeal. Before dealing this point I want to reproduce the provisions of Order 41 Rule 1 & Order 42 Rule 1 of CPC, which reads as follows:-- ORDER XLI "1. Form of appeal. What to accompany memorandum.--(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
10. Contents of memorandum.--(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument of narrative; and such grounds shall be numbered consecutively."
11. ORDER XLII "1. Procedure.--The rules of O.XLI shall apply, so far as may be to appeals from appellate decrees."
12. It is evident from the above referred law that the memorandum of appeal in the High Court must be accompanied by three documents viz. Copies of the judgment and decree appealed from and copy of the judgment of the Court of first instance, the Court can dispense with the copy of judgment of either the trial Court or the appellate Court. So far as the copy of decree appealed from is concerned, the Court has no power to dispense the copy of decree for the reason that an appeal is basically preferred against a decree and not against a judgment, unless, of course, the judgment itself amounts to a decree. In the instant case revision/appeal was filed before this Court on 16.05.2007 without filling the copy of decree sheet alongwith the appeal. The appellant has not pleaded in the contents of appeal neither the reasons for non-filing decree sheet nor he has moved any application for condonation of delay. Simply an application is on the file in which it has been pleaded that decree sheet is not prepared and after preparation of decree sheet, it shall be accompanied alongwith the appeal. The said application is not stamped and not supported by any affidavit. The verification of reader about preparation of decree is also not filed with application. However, an appeal presented without copy of decree is not a valid appeal and this is so, even if, decree has not yet been prepared. An appeal which is filed with a copy of judgment alone and without copy of decree cannot be deemed to have been validly presented. In case tilted Muhammad Latif Butt Vrs. Muhammad Usman [PLJ 1999 SC AJK 69]. It has been observed which reads as under:-- "Civil Procedure Code, 1908 (V of 1908)-- ----0.XLI, R. 1--Azad Jammu and Kashmir Interim Constitution Act, (VIII of 1974), S. 42--Non-filing of certified copy of decree sheet alongwith memorandum of appeal--Effect--Appellant was required to append with memorandum of appeal two documents i.e copy of decree appealed from and copy of judgment upon which decree was founded in terms of O.XLI, R. 1 C.P.C.-Appellate Court although has power to dispense with copy of judgment but has no power to dispense copy of decree--Memorandum of appeal must be accompanied by copy of decree appealed from--Court has no power to dispense with provision regarding presentation of copy of decree--Appeal presented without copy of decree was not valid appeal--Position would be the same where decree has not yet been prepared or where appellant was under wrong impression that same has not been prepared--Appeal must be rejected where copy was not filed. within prescribed limitation period--High Court, thus, committed no illegality in dismissing appeal as being in competent."
13. In [2000 SCR 419], in a case titled Abdul Aziz Vrs. Abdul Hamid and 33 others; it was held in captioned (b) that:-- "(b) C.P.C.-- ----Order XLI Rule 1--It is mandatory for the appellant to file a copy of the decree sheet alongwith the memorandum of appeal; non-filing of the copy cannot be condoned by the Court."
14. In [2001 SCR-134], in a case titled Azad Government & 5 others Vrs. Syed Sajjad Ali Gillani & another; it was held in captioned (a) & (b) that:-- "(a) C.P.C.-- ----0.XLI R. 1--The requirement of law is that the memorandum of appeal in the High Court must be accompanied by three documents viz, copies of the judgment & decree appealed from and copy of the judgment of the Court of first instance, however, a discretion is vested in the Court to dispense with the copy of the judgment of either of the trial Court or the appellate Court."
15. "(b) Copy of decree-- ----Copy of decree appealed from cannot be dispensed with for the simple reason that an appeal is basically preferred against a decree and not against a judgment unless of course the judgment itself amounts to a decree."
16. In view of above, finding no force in this appeal, it is hereby dismissed on sole point of non-filing of copy of decree sheet alongwith appeal. There is no need to discuss the other points which are involved in the appeal.