' M. TABASSUM AFTAB ALVI, J. --- The captioned appeal has been directed against the impugned judgment dated 04.01.2005, recorded by the learned Additional District Judge, Muzaffarabad, while exercising its original jurisdiction, whereby an application filed by the appellant, herein, for setting aside judgment and decree dated 05.03.1997, passed in favour of predecessor-in-interest of respondents by the aforesaid Court, was dismissed. {{BLUR PAGE}} a(br! Sir. r11. ,;,: !r. COMIX.111. .1V by . me precise tads cu mina ing into ding of the 1..n this 31.0.)-,'7, ms ant appeal are that predecessor-in-interet of I' respondent late late MI* suit, w:recovery c'ff(Va 44%.(m11-95,,QP0/-,:ageihst appellant-;defendant rescrabeipre Additional District Judge, Muzaffarabad, on 28;10.1 5t.014-141wistteited sby=4he',, Otaihtifftrthati he .WeS-ra. P1'/inifPr : r:thas rer. _ orrnwRr %Intraitor. app,ellarit,dpfeqdarAt:gotppan., of ondue.64b449,400/4QMPlaintiff with promise that he would return t said Atmourtt , by oprotticf,ing meat, of Sheep!, grid goats'At OIL It tlwaScturther erfed: -that Yappetlanlatidfeiheient' dstured'Vethe OftlititiflothiitheThediot so goatS4ridSheep which vg,V6tedhrt.i'ed at village. Dawalian in, the residence of 1411) cloSeAaegi6;TiO1;e;i=, when 'or; call he reached ,irah s:C4 " pothing, . Was. Fouhd,.,which ,proved- that he had ooMrnitted Lfratud., The ,suit .Resisted by s'-'tappdlidrit=def'ekidept thrbligh written statement 'dated 23.10.1998: It was stated that respondent-plaintiff was no cause of action and suit was filed against facts/law which was also- time-barred... It was also stated that no amount was .Received: by defendant from plaintiff. The learned Trial Court on the basis of pleadings of the parties framed six issues On- 28.12.19.95.. The plaintiff besides documentary evidence, in support of his clairm, produced -three 'witnesseS. The appellant also produced evidenCe, however, later on absented, hence, was proceeded exparte vide order dated 05.03.1997., The Trial Court after- hearing ,alloWed the suit as 'prayed vide judgment and decree dated. .05.03.1997. Against the aforesaid judgment and decree appellant-defendant filed., an _application for recalling the. same on 05.11.1997, which application was opposed by the other side through Objections dated 05.03.1998, however, .{{BLUR PAGE}} anvs laiurshiff& 1I others :-'-'ru ! (APTerifassVin Aficib A'114,.g). ''- - ' \' es . after` hearing" 'Sahib .Viiar ''disiiiiss6T-Aifdd' iiiipudifeW judgment dated 04.01.2005, hence the instant appeal. The' ''.6150ellant-defendant has filed written argunieritiAt is Subrnitte0 ffidt:ktp'-tiFfid7if.jsVgiOg of decree, the appeOpt-defemd,apt wpcundettreatmentin, a-Hospital at Karachi, therefore, ex parte decree was passed again stihint It is further stated-that:applitation was neitiVtirrieig 'barred and a gbod case was also shown, hence, the impUgned jUdgMent is bad .Fin} [aw. Ft is `also submitted that judgment and decree dated '0503.1997i werPP-PP04..12Y,A4f. Court: below Without applyingAudicioirs, tnind'.Hit is ftirttiett,, maintained that in support of his application, appellant- defendant PrOduced -WitnesseS Fageer Muhammad, - Flap Abdul Majid, Abdul Sittar, Mir Muhammad Faree,dand-FampAhmed,howevet, evidence of the aforesaid witrtesses was not considered:by Vile Triall Court without any lawful justification and preyed for acceptance of.Appeal.
4. I have perused the Conteritsdf app01, written arguments filed by the appellant and:61sO -examined the record. {{BLUR PAGE}}
5. A glance perusal of record levels that predecessor-in-interest of respondents late Malik Hadayatullah, filed a suit for recovery of Rs. 1,95,000/- against appellant-defendant before the Trial Court on 23.10.1995. The suit was, however, resisted by appellant-defendant through written statement dated 23,10.1995. The issues on the basis of pleadings of the parties were framed on 28.12.1995. The plaintiff produced three witnesses in support of his claim, besides documentary evidence, in the shape of an agreement, executed between the parties, as "Exh.PA". The appellant- defendant in support of his defence also produced oral evidence, who was represented by a senior counsel Muhammad Noor Ullah Qureshi, however, later on he and his learned counsel failed to appear before the Court below, hence, after hearing the learned counsel for plaintiff the suit was allowed vide judgment and decree dated 5.3.1997. The case was contested by the appellant- defendant through written statement, who also produced evidence" in support of his defence, which suit was decided by the Court below on merits. Against the aforesaid judgment and decree dated 05.03.1993, an application for recalling the same was, therefore, no maintainable. It was enjoined upon the appellant-defendant to challenge the aforesaid judgment and decree through a regular appeal before this Court. The same proposition came under consideration before the Peshawar High Court, in case titled Nasim Javed v. National Bank of Pakistan [PLJ 1985 Pesh. 52 (DB)j, wherein at page 56 of the report, it was held as under:--- "There is yet another aspect of the case. The suit of the respondent herein had been finally decided on merit by the learned Trial Judge because he had proceeded under Order 17, Rule 3, C.P. C. In such a situation the appellant herein should have filed an appeal against the said decree and should not have moved an application to the Trial Court for setting aside the ex parte decree. The application of the appellant herein before the Trial Court for setting aside the decree by treating it is an ex parte decree was also misconceived."
' An identical point also came under consideration before the Lahore High Court, in case titled Muhammad Khan v. Alam Din [1989 CLC 1810]. At page 1812 of the report, it was opined as under:- ' It was next contended by the learned counsel for the petitioners that as this Court is seized of the matter it may exercise its revisional jurisdiction and set aside the ex parte decree. It is not denied by the learned counsel that the decree could be subjected to appeal before the Appellate Court.
The petitioners, however, failed to avail of this remedy. There is as such no justification for interfering in the ex pate decree in these proceedings under Section 115 of the C.P. C.
6. There is yet another fatal defect in the instant appeal. The suit for recovery of money was filed by predecessor of respondents before the learned Additional District Judge, Muzaffarabad, in original jurisdiction which was decided on merits by the Court supra vide judgment and decree dated 05.03.1997. The appellant-defendant filed an application under Order 1X, rule 13 of Civil Procedure Code, for setting aside the aforesaid judgment and decree, which application was dismissed vide impugned judgment dated 04.01.2005. Against the aforesaid judgment passed in the original jurisdiction by the learned Additional District Judge, the instant first appeal has been filed. As per Section 96 of Civil Procedure Code, an appeal could be filed against the decree and not against the judgment. The aforesaid Section 96 of C.P.C. Speaks as follows:--- "96. Appeal from original decree.-- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. {{BLUR PAGE}}
(2) ArF appear may lie from tS a original decree ietc!!,i I ,..
PaSe PP/ ?. ; ihkut,t
(3) No appeal shall lie from a decree passed by the Court:with conseriteOf
7. As per. Record the -appellant moved an application for issuance of certified copy Of judgment datedm 04.01.2005,1 alontjwith other documents; oh 1:16.01.2005" hoWever, neither solicited decree On the basis of judgment supra nor the' sane-wasdrawn by the Trial Court. An appeal can lie from every decree passed by any Court exercising cilginal jurisdiction and not against the judgmprit,thergfpre-iso appeal is bad in law even, frorn,this angle. The same point-,::,' was considered by the apex Court in case titled Azad Government & 5 others v. Syed,SajjadAli Gillani andanother. (2001 SCR 134), wherein at-Page 137 of thetibtiOrt,It Was"d' opined as folloWS:--- "5. After hearing the' respective con4eations-aof themi4. learned cOunsel for the parties and perusing the relevant' record' it mayte, stated that for SVailing thei appellate jurisdiction af* the High Coat in- appeal it was mandatory- for the appellants to attahh- with the memorandUm of appeal the attested, copies ot,the judgment and decree passed by the first Appellate Court and also provided with it the judgment.Of the Trial Court, unless the samewas either 6.Xpresslyior impliedly dispensed with. To have a' correct perception of the proposition involved in the instant case it woUld be useful to reproduce the provisions of , Order XE1, rule 1 'of the Code of. Civil Procedure which reads as follows:--- "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his ., rson tqluzzioaktio-grrop :reasone plead el- and ptie11-'rated Court' or to such officer as it appointh''ili this behalf. The .i,men7ocarldum shall be accompanied by a -copy Of the decree appealed from and (unless the Appellate),-Court closeness;, therewith) of the judgment on whichlls rdundect {{BLUR PAGE}} ' The requirement of law, as we understand, is 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,. However, a discretion is vested in the Court, to dispense with the copy of the judgment of either the Trial Court or the Appellate Court, keeping in view the facts and circumstances of each case. So far as the copy of decree appealed from is concerned, it 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."
' As the instant appeal has been filed against the judgment, Whereas appeal could be filed against the decree, therefore, the is amiss vis-a-vis to the basic provisions of Statutory Law:
8. For the reason enlisted above the instant appeal is not maintainable, which is, accordingly dismissed with no order as to the costs and consigned to record. Civil .