' RAJA MUHAMMAD KHURSHID KHAN, J.-The appellant Ali Haider Shah herein and one Ghulam Haider Shah sought to pre-empt the land in suit purchased by Ghulam Muhammad vendee (respondent) by two separate suits in the Court of Sub-Judge, Hattian. The claim of Ghulam Haider Shah was disallowed by the trial Court while that of Ali Haider Shah appellant (pre-emptor) was decreed on payment of Rs, 1,500. The payment was required to be made by 29-12-1976. But the appellant failed to make the payment on or before the specified date. However, on 29-12-1976, an application was moved by Ali Haider Shah appellant (pre-emptor) before the trial Court for extension of time for making the deposit of the purchase price. The trial Judge vide order dated 4- 1-1977 allowed him further time to make the deposit which was accordingly made on 10-1-1977. Aggrieved by this extension order an appeal by vendee (respondent) was taken before the District Judge, Muzaffarabad, who, by his order dated 3-8-1977, accepting the appeal discharged the finding of learned Sub-Judge resulting in the dismissal of the suit of the appellant (pre-emptor).
2. The appellant (pre-emptor) assailed the judgment of the learned District Judge in second appeal before the High Court. A learned Single Judge of the High Court sitting in chambers vide order dated 28-6-1978 without going to the merits of the case returned the memorandum of appeal solely on the ground that the appeal being filed without a copy of the judgment of the trial Court, was incompetent. It needs to be stated that in this appeal we are only concerned with the case of Ali Haider Shah appellant (pre-emptor) and the case of Ghulam Haider Shah therefore, needs no consideration.
3. To understand the controversial point, relevant facts in brief may advantageously be stated. The appeal was presented before the Registrar of the. High Court at Muzaffarabad on 3-10-1977, when the Court was not functioning thereat. The Registrar fixed the date 5-10-1977 for proper orders. On this date the Reader made a note on the appeal that the memorandum of appeal is not accompanied by the copy of the judgment of the Sub- Judge. The file, thereafter, was placed before the learned Chief Justice the learned Chief Justice issued notice to the respondent; requisitioned the record and the case was posted for 16th of October 1977. However, on 19- 2-1978, an application before the Court was moved by the appellant that at the time of the institution of the appeal, the copies of the decree and the judgment of the Sub-Judge, not available, may be allowed to be placed on the record. The learned Chief Justice on this application passed the order 'copy of the judgment and decree presented today'. This is the resume of the case.
4. On behalf of the appellant, in face of these facts, it bad been maintained by Syed Tassadiq Hussain Shah, Advocate that issuance of process on 5-10-1977 by the Court amounts to implied dispensation of the copy of the judgment of the first instance and the learned Judge in the High Court in returning the memorandum of appeal erroneously lost sight of this important factor. In alternate it is the case of the appellant that a duty is also cast upon the Court to see that the appeal is accompanied by all the necessary documents and if any omission, making the appeal defective, on the part of the appellant, is not brought to his notice and the appeal is admitted for hearing, it may be presumed that the learned Judge has exercised the discretion in favour of the appellant, in dispensing with the copy or copies omitted to be placed alongwith the memorandum of appeal. The appeal, therefore, subsequent to the issuance of process, cannot be dismissed on the ground that it is not accompanied by a relevant document because ; firstly implied dispensation of such a copy shall be presumed and secondly fault lies with the Court for which none can be condemned.
5. As against this, on behalf of the respondent, it had been submitted that for a valid appeal before the High Court the memorandum of appeal must be accompanied by a copy of the judgment of the trial Court and it is the appellant and, as contended, not the Court who is required to be vigilant to see that he presents a valid appeal accompanied by all the relevant documents.
6. We have given or considered thought to the arguments advanced at the bar. It is practically settled law that under Order XLI, rule 1, C. P. C. The appeal filed in the High Court must also necessarily be accompanied by the copy of the judgment of the Court of first instance, if the discretion is not exercised in dispensing with such a copy.
7. On the basis of this state of law, it requires consideration whether in the circumstances of this case, it can be said that the Court had impliedly dispensed with the copy of the judgment of the trial Court. On 5-10-1977 a note was appended by the Reader that appeal is not accompanied by the copy of the judgment of the trial Court. At that time, 28 days were still to go towards limitation for filing the appeal' and if the appellant would have been asked by the Court to file the copy of the judgment of trial Court, it could well be done within time. In this view of the matter the Court and not the appellant was at fault and for that reason implied dispensation of the copy of the judgment of the trial Court will be presumed and even otherwise too the appellant cannot be allowed to suffer for the fault of the Court. To the same effect is Maung Po Hlaing v. Ma Phee and others (1). It is observed in that case :- "Before an appeal is admitted it is the duty of the Court to see that all the papers that should be filed have been filed before the Court. If the Court had noticed the omission that a copy of the decree had not been filed it could have brought that fact to the notice of the appellant, and there was ample time for the appellant to get a copy of the decree and file the same before the Court ; but instead of doing that, the Court admitted the appeal and it was fixed for hearing and after several adjournments the appeal was heard by the Additional District Judge on 6th December and it was fixed for judgment on 9th December 1929."
' It was further observed that :- "This fact should have been noticed when the appeal was filed and when the appeal was admitted. I do not think it was proper for the lower appellate Court to dismiss the appeal, because a copy of the decree had not been filed when the appeal was filed. I think there is sufficient excuse for the appellant in this case, and he should not suffer for the fault of the Court in not discovering his mistake in time."
8. Had the Court made the appellant aware of the defect in the appeal for want of a copy of the judgment of the trial Court it could well, as said earlier, be rectified in time as the period for filing the appeal still subsisted. The defect was brought to the notice of the Judge by the Reader and it may be presumed that the learned Judge well aware of this defect proceeded to issue the process and thereby impliedly dispensed with the copy of the judgment. The defect in the appeal, though originated from the appellant's side, could be removed if the Court had been cautious enough to bring it to the notice of the appellant. How the appellant can be allowed to suffer for the fault of the Court. In the circumstances of this case it may be said that the Court had contributed towards the negligence, for which the appellant cannot be allowed to suffer.
9. For the above-stated reasons, we would accept the appeal, set aside the judgment and decree of the learned Single Judge of the High Court dated 28-6-1978 and remand the case back to the High Court to decide it on merits. No order as to costs of this Court. {{FOOT NOTE}}
(1) AIR 1930 Rang. 235 {{FOOT NOTE}}