' By an application dated 18-10-1980 made under section 107 read with the added rule 2 of Order XLII, C. P. C. The respondent Muhammad Ishaq brought to the notice of the Court that the appeal was filed with deficient court-fee and without appending therewith a certified copy of the judgment of the trial Court. It was contended that it was a mandatory requirement and failure to comply with it rendered the appeal incompetent and barred by time.
2. The perusal of the record shows that the learned District Judge dismissed the appeal on 3-4- 1975. The appellants applied for the copies of the judgment and decree of the learned District Judge on 5-4-1975 which were ready on 5-5-1975, but taken delivery of on 21-5-75. After deducting the time spent in obtaining the copies, the last date of filing the appeal was 19-8-1975, but on account of summer vacation the appeal filed on 12-9-1975 on the reopening of the Court, was deemed to be filed within time. But since the appeal was not accompanied by the copy of the judgment of the trial Court and proper court-fee was not paid, the same was returned for compliance. It appears that the appellants applied for the copy of the judgment of the trial Court on 14-11-1975 and received it on 9-12-1975 but filed in Court on 2-1-1976. It may be pointed out that the Court-fee was made up on 31-12-1975.
3. Rule 2 of Order XLII, C. P. C. Provides that in addition to the copies specified in rule 1 of Order XLI, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance unless the appellate Court dispenses therewith. It was held in Molu Mal v. Sri Ram and others (1) and Naul and others v. Mula and others (2) that in second appeals the memorandum of appeal shall, in addition to the copies specified in rule 1 of Order XL1, be accompanied by a copy of the judgment of the Court of first instance. This view was adopted in Kala v. Allah Dad (3), with an observation that the requirement that certified copy of the judgment of the trial Court should be filed alongwith the memorandum of appeal in the High Court is mandatory; and in the absence of the same, unless its filing is dispensed with, the filing of the appeal would be defective and incompetent. Akbar Khan v. Muhammad Razzaq (4), has decided the question authoritatively. It is thus clear that the presentation of the appeal in the instant case would be valid only if the requirement of law was' complied with, and to say in other words, if the copy of the judgment is filed A after the limitation has expired, the appeal would be time-barred. In such cases the defaulting party may ask for condonation of delay under section 5 of the Limitation Act, if he can make out a sufficient cause.
4. It may be pointed out that the appellants have also moved an application (Civil Miscellaneous 204/C-1976) to get the delay condoned. It is stated in the application that the appellants' counsel had on 21-9-1975 written a letter to him through Haji Muhammad Siddiq that the appellants should make up the deficiency of court-fee and also a certified copy of the trial Court, and Haji Muhammad Siddiq informed the petitioner accordingly on 14-12-1975. They stated that they received the copy on 19-12-1975 and came to Lahore on 24-12-1975 and did the needful. It was, therefore, prayed that the delay be condoned. Any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. Sufficient cause according to Abdul Ghani v. Ghula Sar war (4), means circumstances beyond control of the party concerned. c The appellants had to explain delay of every day, but, as it appears from the averments of the application for condonation of delay, the explanation start from 14-12-1975 when Haji Muhammad Siddiq was said to have informed the appellants. It has not been made out that the appellants were all unaware of the absence of the copy of the judgment of the lower Court, nor were they ignorant about the deficiency of court-fee; and as a matter of fact they could not plead the same. However, no reasonable ground has been pointed out why an incomplete appeal was filed in the first instance and why the copy was supplied so late. It appears that the appellants had applied for the copy when limitation of the appeal had already expired. This delay remains unexplained. Similarly there is no explanation about the making up of the court-fee. That being the position, no case is made out for condonation of delay under section 5 of the Limitation Act. Civil Miscellaneous 204/C-1976 is dismissed. The delay being not condoned, the appeal is undoubtedly filed beyond limitation. It is, therefore, dismissed as barred by time. No order as to costs. {{FOOT NOTE}}
(1) AIR 1921 Lah. 73 (2) AIR 1926 Lah. 626
(3) PLD 1977 Lah. 376 (4) PLD 1979 SC 830
(5) PLD 1977 SC 102 {{FOOT NOTE}}