This appeal has been filed against the judgment and decree passed by Additional District Judge Sehnsa dated 10.06.2009, through which an appeal filed by the present appellant was dismissed being incompetent and defective.
2. Brief facts giving rise to the present appeal are that the appellant/plaintiff filed a suit for declaration, against the present respondents/defendants in the Court of Civil Judge Sehnsa regarding the land measuring 17 Kanals 08 Marlas and 06 Sarsai bearing new Survey Nos. 208, 209, 242, 243, 243 min, 185, 185 min, 210 and 210 min situated at village Badli Tehsil Sehnsa. It was stated in the suit that a gift-deed dated 20.09.1984 executed by one Hassan Shah in the names of the respondents was beyond the shares, without partition, without possession and being based on specific survey numbers, which was null and void over the rights of the appellant/plaintiff.
Moreover, a decree dated 11.12.2006 titled as Muhammad Shahpal vs. Khatoon was issued against the facts and provisions of law, without impleading the necessary parties, secretly, without possession of the disputed land, without partition and which was liable to be set-aside. The appellant/plaintiff prayed for an alternate relief on the basis of right of prior purchase.
3. The respondents submitted written statement, stating therein that the suit was not maintainable in the present shape. The Civil Court has got no jurisdiction and the appellant/ plaintiff has got no cause of action. The suit was not filed within prescribed period of limitation. The respondents/ defendants denied the contents of the plaint and prayed to dismiss the suit. Issues were framed in accordance with the version taken by the parties. The learned Civil Judge Sehnsa directed the learned counsel for the parties to advance their arguments on legal issues No, 6 to 9. After hearing the learned counsel for the parties, the learned Civil Judge Sehnsa dismissed the suit filed by the present appellant/plaintiff. Feeling aggrieved, the present appellant/ plaintiff preferred an appeal before Additional District Judge Sehnsa. After hearing the parties, the learned Additional District Judge Sehnsa dismissed the appeal filed by the present appellant/plaintiff. Feeling dissatisfied, the present appellant has filed the instant second appeal before this Court.
4. Arguments were advanced by the learned counsel for the parties. Mallick Muhammad Mansha Advocate, the learned counsel for the appellant argued that the learned Additional District Judge Sehnsa did not record his findings in accordance with the provisions of law. It was enjoined upon the learned Judge to decide the matter on merit to meet the ends of justice. The learned counsel requested to accept the appeal and referred the following precedents in support of his arguments.
1981 CLC 359 1983 NLR 559 1985 CLC 1082 PLD 1990 Lah. 390 1993 SCM R 882 2006 SCR 247
5. While controverting the arguments advanced by the learned counsel for the 'appellant, Kh. Abdul Basit Advocate, the learned counsel for the respondents contended that the appellant/plaintiff failed to append attested copies of judgment and decree within time and did not fulfill a mandatory requirement. The learned Additional District Judge Sehnsa has dismissed the appeal with sound and cogent reasons. The learned counsel requested to dismiss the appeal and referred the following precedents in support of his arguments.
2001 CLC 1105 SC (AJ&K)
PLJ 2001 SC (AJ&K) 350 PLJ 2002 SC (AJ&K) 125
6. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and perused the precedents referred minutely. The record reveals that the learned Additional District Judge Sehnsa declared that the first appeal filed by the present appellant was incompetent and defective with the reason that the appellant did not append the, copies of judgment and decree with his appeal. Order XLI Rule 01 of Civil Procedure Code reflects the said requirement as under:- "Order XLI Rule 01. Form of surpeal.--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."
The record reveals that the learned Civil Judge Sehnsa announced the judgment and decree on 07.07.2007. The present appellant filed the first appeal on the same day but did not append the copies of judgment and decree under appeal. Later on, the appellant file d copies of judgment and decree with his suit on 08 11.2007. He said copies of judgment and decree were produced in the Court after expiry of the prescribed period for filing the appeal. The appellant submitted an application for condonation of delay on the same day along with the copies of judgment and decree. The apex Court of AJ&K has settled such like situation in a precedent PLJ 2002 SC (AJ&K)
125 as under: "Petitioner's application for dispensation of copy of judgment of trial Court was moved after expiry of period of limitation for filing of appeal, therefore appeal being incompetent, High Court had rightly disallowed the same, leave to appeal was thus, refused in circumstances."
This is an admitted fact that the copies of judgement and decree along with an application for condonation of delay were submitted on 08.11.2007 after expiry of the period of limitation for filing the appeal.
7. The appellant has taken this version in the memorandum of appeal that it was his counsel's negligence that the said copies could not be appended with the suit within prescribed period of limitation. It is an admitted principle of law that "Act of counsel is considered as an Act of the party" and "Negligence on the part of counsel or ill advice is not a ground for condonation of delay". The above-mentioned principles have been reiterated in the other precedents referred by the learned counsel for the respondents.
8. The record also reveals that the copies of judgment and decree were obtained on 25.07.2007 but were produced before the Court on 08.11.2007. The appellant has taken this version that the Lawyers remained on strike during that period, so the said copies could not be produced. If at all the Lawyers were on strike, the Courts or the staff of the Court were not on strike and there was no hurdle to append the said copies anytime before expiry of the said period. The appellant also took this version that the trial Court has dispensed with the production of the said copies while passing an order of summoning the respondents. The record reveals that neither the appellant prayed for dispensation nor the Court ordered for the same.
9. The present appellant has challenged the reasoning recorded by the learned Additional District Judge Sehnsa for dismissal of his first appeal and did not challenge the observations made by the learned Civil Judge Sehnsa on the remaining legal issues. The facts of the precedents referred by the learned counsel for the appellant have no conformity with the facts of the present case.
The nutshell of the above discussion is that the subordinate Courts have recorded their findings concurrently, which are based on sound and cogent reasons and need no indulgence by this Court. The instant appeal stands dismissed with no order as to the costs.