' GHULAM MUSTAFA MUGHAL, C.J.--- The captioned appeal has been filed against the judgment and order passed by the learned Additional District Judge, Muzaffarabad on 13.12.2011, whereby 'judgment and decree passed by the Civil Judge, Muzaffarabad dated 25.04.2005 has been vacated and case has been remanded for fresh decision.
' Facts forming the background of the captioned appeal are that plaintiffs/respondents Nos.1 and 2, herein, brought a suit for declaration and joint possession against the defendants in respect of land comprising Khewat No,4 measuring 225 Kanals, 13 marlas and Khasra No,210 measuring 30 Kanals in all measuring 255 Kanals, 13 marlas in the Court of Civil Judge Muzaffarabd on 01.09.1999.
It was averred that the aforesaid land was 'in the ownership of Ameerullah and Noorullah, brothers as per revenue record and after their death, the same is in possession of their legal heirs. It was alleged that mutation in favour of legal heirs was got entered without entering the name of real sisters. It was stated that plaintiffs/respondents Nos.1 and 2, herein, are owner of the land to the extent of 48 Kanals, 7 Marlas and 7-1/2 sarsai, whereas only 17 Kanals 16 Marlas land is in their possession. The plaintiffs/defendants are in joint possession to the extent of 30 Kanals 8, Marlas and 7-1/2 sarsai. The suit was contested by the defendants by filing written statement wherein, they have refuted the claim of the plaintiffs. After necessary proceedings, the learned trial Court vide judgment dated 25.04.2005 granted the decree of joint possession. Plaintiffs/respondents Nos.1 and 2, herein, felt aggrieved from the aforesaid judgment and decree and challenged the legality and correctness of the same before the Additional District Judge, Muzaffarabad by way of appeal on 29.03.2011. After hearing the parties, the 'learned Additional District Judge, Muzaffarabad vide judgment and order dated 13.12.2011 remanded the case for fresh decision in light of his observations recorded in the judgment and order. The aforesaid order has been challenged through this second appeal.
' Mrs. Bilquees Rasheed Minhas, the learned Advocate appearing for the respondents, has raised a preliminary objection regarding maintainability of appeal for having been filed in violation of Order XLI, Rule 1 of the Civil Procedure Code. It was argued that appeal has not been properly instituted because the judgment of the trial Court has not been appended, with the memo of appeal. The learned Advocate argued that neither any application for dispensing with the judgment has been made nor any request has been made in this behalf up-till-now, therefore, appeal is liable to be dismissed without attending its merits. In support of her submissions, the learned Advocate placed reliance on the following cases:-
1. Muhammad Shafi v. Mst Jameela Bibi and 09 others, [1980 CLC (SCAJ&K) 1130];
2. . Muhammad Amin Shah v. Mehtab and another [PLD 1996 SC (AJ&K) 11];
3. Mst. Sandal Begum v. Bassam Muhammad [PLD 1991 (AJ&K) 14];
4. Mst. Safia Begum v. Taj Din and others [1990 CLC (Lah.) 1503]; ' Sardar Pervaiz Akhter, the learned Advocate appearing for the appellant, argued that appeal has been filed against the remand order under Order XLIII, Rule 1(u) of the Civil Procedure Code, therefore, the procedure visualized by Order XLI, Rule 1 is not applicable. The learned Advocate argued that only the judgment of the Additional District Judge Muzaffarabad was required to be filed along with the memo of appeal. In alternative, the learned Advocate submitted that as notice has been issued .To the other side despite the defect therefore, the filing of copy of judgment of the trial court would be deemed to have been dispensed with. In support of his submissions, the learned Advocate placed reliance on the following case law:--
1. Ali Haider Shah v. Ghulam Muhammad [1981 CLC (SC AJK) 359];
2. Azad Govt. And 05 others v. Syed Sajjad Ali Gillani and another [2001 CLC 1-105] I have heard the learned Advocates for the parties and gone through the record of the case.
' The contention of Sardar Pervaiz Akhter, the learned Advocate for the appellant that remand order has been passed under Rule 23, Order XLI of the C.P.C. And is appealable under Order XLIII, Rule 1(u), hence, filing of the copy of judgment and decree of the trial Court was not required is devoid of any force. Under the scheme of code, judgment and decree are appealable under Sections 96 and 100 of the Civil Procedure Code. Every order is not appealable and right of appeal being a creation of statute can be availed only when it has specifically been granted, therefore, appeals could be filed only against those orders which have been listed in Order XLIII of the Civil Procedure Code or section 104. The procedure for filing of appeal i.e, from decree or order is the same and the appeal in any case would be governed by Order XLI of the Civil Procedure Code. Order XLI, Rule 1 commands .As under:- "Form of appeal. 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."
A perusal of above provision of law reveals that filing of decree against which the appeal is filed is mandatory requirement of law and Court is not competent to dispense with the copy of the decree, therefore, any appeal filed under Order XLI, Rule 1 must be accompanied by copy of decree and judgment appealed from and copy of judgment of Court of first instance and the judgment of trial Court is dispensed with by the appellate Court either expressly or by necessary implication.
The controversy has already been considered by the apex Court of Azad Jammu and Kashmir in Muhammad Amin Shah's case on almost similar circumstances. In Para 6 of the report, it was observed as under:- "To begin it may be stated that on the preliminary objection raised by the learned counsel for the respondents that the memo of appeal before the High Court was not accompanied by the judgment and decree of the " Court of Sub-Judge, Kahuta, a learned Judge in the High Court vide his impugned judgment dismissed the appeal as being incompetent. Neither Order XLI, Rule 1 nor Order XLII, Rule 1 stipulates that the memo of appeal must necessarily be accompanied both the judgment and decree of the trial Court. The requirement of law, as we understand, is that memo of appeal in the High Court must be accompanied by three documents viz, copy 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 in a decree."
' Similarly, in Muhammad Shafi's case, [1980 CLC 1130] in Para. No,6 of the report, it was opined as under:- "Under Order XLII, Rule 1, C.P.C. As applicable in Azad Kashmir the memorandum of second appeal, before the High Court must be accompanied by three documents, namely, copies of the judgment and decree appealed from and unless the appellate Court dispenses with copy of the judgment of the Court of first instance. The question which therefore falls for determination is whether the copy of the judgment of the Court of first instance accompanying the memorandum of appeal before the High Court, can be treated as valid copy for the purpose of appeal the reading of the copy shows that application for copy was made on 2nd July, 1977 ana the copy was delivered to the petitioner on 3rd July, 1977. The time for filing the appeal before the High court expired on 29th June, 1977, obviously before the application for copy of the judgment was made."
' The same view was taken in Mst. Sandal Begum's case referred to hereinabove.
' The learned Advocate for the appellant has relied upon the judgment of the apex Court rendered in All Haider Shah's case, which has distinguishable facts. In the second case referred to and relied upon by the learned Advocate, the proposition was different because specific note was put up by the Deputy Registrar that copy of the judgment of the trial Court was not appended with the appeal and despite the defect the Court issued notices to the other side. In these circumstances, it was observed that the requirement of filing the copy of the judgment of the Court of first instance was impliedly dispensed with.
So far as the present case is concerned, the judgment of the trial Court has not been appended with the memo of the appeal. Neither any application has been made nor reason has been stated in the appeal for not filing the same, therefore, question of dispensing with the requirement of filing the copy of the judgment of the Court of first instance cannot be considered. As the appeal is not properly constituted, therefore, while upholding the objection, the same stands dismissed for having been filed for non-compliance of Order XLI, Rule 1 of the Code of Civil Procedure.