MAULVI ANWARUL HAQ, J.--- For the purposes of this judgment reference to pleaded facts would not at all be necessary. Feeling aggrieved of judgment and decree dated 8.11.2004 passed by the learned Trial Court, the respondents filed a first appeal in the Court of learned District Judge, Sargodha. This appeal was filed on 24.12.2004. It was entrusted to a learned Additional District Judge. Alongwith this appeal an affidavits of one of the respondents was filed stating that an application has been filed for obtaining copy of the impugned judgment and decree but the same has not been provided so far. The appeal is accordingly being filed without the said copy.
2. The first appeal came up before the said learned Additional District Judge on the same date. He passed the following order "preliminary arguments heard. Points raised need consideration. Admit".
He issued notice to the petitioners for 14.1.2005 and also directed that status quo be maintained.
Record of the learned lower Court was summoned. There is a note, probably made on 11.1.2005, that the record has been received. On 14.1.2005 it was also noted that the record has been received.
Notices were ordered-to be repeated. On 4.2.2005 the petitioners put in appearance and their learned counsel filed all application for dismissal of the appeal on the ground that memo. Is not accompanied by the copies of the judgment and decree. The case was adjourned to 4.3.2005. On this date the certified copies were filed. The endorsement entered by the copying agency on the copies shows that these were, applied for on 10.11.2004. These were prepared and delivered on 3,1.2005. Meanwhile an application was filed by the respondents explaining the non-filing' of the copies in time and also praying for condonation of delay. This application was resisted. Vide impugned order dated 9.7.2005, the delay has been condoned by the learned Additional District Judge.
3. Mian Muzaffar Hussain, learned counsel for the petitioners contends with reference to the judgment in the case of Cooperative Model Town Society through Secretary vs. Mst. Asghari Safdar and 'others (2005 SCMR 931) that the impugned order is . Without jurisdiction. According to the learned counsel the provisions of Order XLI, Rule 1, CPC are mandatory and in view of the admitted violation, the delay could not have been condoned. As to the reasons for condonation stated by the respondents i.e. Failure of the learned counsel, to whom copies had been delivered, to file same in Court. He relies on case of Zahid Ahmed vs: Deputy Director Adjudication and 2 others (PLD 2006 Karachi 252) wherein it has been held that a party has to suffer to negligence of his counsel.
4. Learned counsel for the respondents, on the other hand, contends that it is not only matter between the parties but the Court is also involved. According to him it was for the learned Additional District. Judge to have passed an order pursuant to the affidavit- that was appended with the appeal. He relies on the case of Sherian and 4 others vs. Fazal Muhammad and 4 others (1995 SCMR 584).
5. 1 have gone through the record of the learned Appellate Court with the assistance of the learned counsel for the parties. I have 'already, given details above. There is no manner of doubt that the first appeal was filed without copies of the judgment and decree. However, the matter was duly disclosed by filing affidavit stating the reasons for non-filing of the copies. The learned Additional District Judge opted to conduct the limine hearing without the said copies and admitted the case.
It is also apparent that the record had been received in the learned lower Appellate Court as directed by it.
6. Coming to the said contentions. Two Hon'ble Judges of the Supreme 'Court delivered the judgment in the case of Cooperative Model Town Society through Secretary. I may note here that no doubt the rule laid down is that the provisions of Order XLI, Rule 1, CPC are mandatory. But then their Lordships had stated in detail reasons for not exercising discretion in the matter of condonation of delay in para-7 of the judgment at page 934 of the report. It has been observed that the petitioner before. Their Lordships was guilty of contumacy as also gross negligence, It was further found that the appeal was filed on 5.7.1995. On the said date certified copies had already been delivered to the said petitioner. He 'kept quiet till such time that he made application on 30.3.1998. In the present case as noted by me above the respondents had duly disclosed that they are not in possession of the certified copies, which had been applied for. This assertion stands proved on record. Notwithstanding the said disclosure , and of course the obvious fact that the memo. Of first appeal was not accompanied by the said copies the learned Additional District Judge deemed it fit to, commence with hearing of the appeal. The in limine hearing was conducted, the appeal was admitted and status quo order was issued. The record :was summoned and made available to the learned Appellate Court before the next date of hearing.
7. It is in the admitted factual background that the matter has to be considered. It was held by the Hon'ble Supreme Court in the case of Mst. Safia Begum vs. Taj Din and 2 others (1993 SCMR 882) that the previous of Order XLI, Rule 1 are to be liberally construed and even if hearing of the appeal takes place without filing of the copy of the judgment, it will be , assumed that either it has . Been dispensed with or the delay has been condoned.
8. I may here refer to the judgment of the apex Court delivered by the three Hon'ble Judges in the case of Baseer Ahmed Siddiqui vs. Shama Afroi (1988 SCMR 892). As per facts narrated in para-3, the first appeal filed without copy of the decree was admitted to hearing. It was admitted and notices issued. The objection was raised by the respondent in the case that copy of the decree is not appended with the memo. Of appeal A copy was applied for and then filed. The appeal was decided on merits without reference to the said facts and was allowed by a learned Additional District Judge. The revision filed against the said decree was dismissed by the learned High Court of Sindh at Karachi. Their Lordships upheld the view expressed by the learned High Court that the provisions of Order XLI, Rule 1 are directory and further that in the said circumstances when records were available and appeal was admitted to hearing, the delay stood condoned.
9. TO my mind the said judgment in the case, of Baseer Ahmad Siddiqui fully covers the facts of present case . The civil revision is accordingly dismissed but without any order as to costs.
Record of the. Learned Courts below be immediately remitted back. .