' Muhammad Azam Khan, C.J.--The titled appeal by leave of the Court arises out of the consolidated judgment of the High Court dated 12th December, 2013, whereby Civil Appeals No, 67/1999 filed by Syed Abid Hussain Shah and others and Civil Appeal No, 68/1999 filed by the Administrator Auqaf and another have been partly accepted.
2. The appellants Syed Abid Hussin Shah and others have challenged the judgment of the High Court to the extent of acceptance of Appeal No, 68 of 1999, while the Chief Administrator Auqaf has challenged the judgment to the extent of Appeal No, 67 of 1999.
3. On 2nd September, 2015, when the appeals were taken up for arguments, Kh. Muhammad Nasim, Advocate, the counsel for the respondents i.e,, the Chief Administrator Auqaf, and another raised a preliminary objection that the appellants, Syed Abid Hussain Shah and others have challenged the judgment of the "High Court to the extent of Civil Appeal No, 68/ 1999. They have not filed the copy of the memorandum of appeal with the petition for leave to appeal. In the light of the provisions contained in Order XIII, Rule 3 of the Supreme Court Rules, 1978, the petition for leave to appeal/appeal is not competent. He requested for filing an application for amendment of concise statement for raising the legal objection. The case was adjourned for 10th March, 2015. On 10th March, 2015, two applications; one by Kh. Muhammad Nasim, Advocate, for amendment in the concise statement to raise the legal objection and the other; by Mr. Abdul Rasheed Abbasi, Advocate, the counsel for the appellants for filing the copy of memorandum of Civil Appeal No, 68/1999, were moved. The application for amendment of concise statement for raising objection was allowed, however, the application filed on behalf of the appellants under Section 42-A of the Azad Jammu & Kashmir Interim Constitution Act, 1974 read with Order XLIII of Supreme Court Rules, 1978 and the objections filed therein were entertained and the case was adjourned for today.
4. Mr. Abdul Rasheed Abbasi, Advocate, the counsel for the appellants, submitted that Appeal No, 67/1999 titled Syed Abid Hussian Shah and others vs. Administrator Auqaf and another and Appeal No, 68/1999 titled Administrator Auqaf and another vs. Syed Abid Hussain Shah and others were decided by the High Court through consolidated judgment on 12th September, 2013. Both the appeals were partly accepted. The appellants challenged the judgment passed in Appeal No, 68/1999 and the respondents have challenged the judgment passed in Appeal No, 67/1999. Since both the appeals were decided through the consolidated judgment and the appeals are also pending in this Court and have been ordered to be heard together, therefore, non-filing of copy of memorandum of Appeal No, 68 of 1999, before the High Court, will not affect the fate of the appeal because both the copies of memos. Of appeal are annexed by the other party in the cross appeal.
The learned counsel submitted that it is an human error which occurred despite the appellants' vigilance. The learned counsel submitted that this Court has power under Section 42-A of the Interim Constitution Act, 1974, read with order XLIII of the Azad Jammu & Kashmir Supreme Court Rules, 1978 to pass an appropriate order for doing complete justice. The learned counsel submitted that while preparing the petition for leave to appeal, it escaped the notice of the counsel for the appellants that copy of the memorandum of Appeal No, 68/1999 has not been annexed. The copy had been obtained by the party. The learned counsel requested that this Court may pass an appropriate order under Section 42-A of the Azad Jammu & Kashmir Interim Constitution Act, 1974 read with Order XLIII of the Azad Jammu & Kashmir Supreme Court Rules, 1978 for dispensation of the requirement of Order XIII, Rule, 3 of the Supreme Court Rules, 1978 to the extent of non filing of copy of memorandum of Appeal No, 68/1999 and in alternate, he requested for permission to file the copy of memos. Of appeal. The learned counsel lastly argued that initially while disposing off the appeals a difference of opinion arose between the two judges i.e, members of the bench and the matter was referred to the referee Judge, but later on it was decided by the Division Bench. The appeals were not decided by the Division Bench as referee Judge rather the same were decided as regular appeals. The appeals have been decided without adhering to the High Court Procedure Rules, 1984 The judgment on this score is not maintainable.
5. Kh. Muhammad Nasim, Advocate, the counsel for the respondents, submitted that the provisions of Order XIII of the Supreme Court Rules, 1978 are mandatory in nature. Non-compliance of the rules results in dismissal of petition for leave to appeal/appeal. The learned counsel relied upon the judgment of this Court delivered in case reported as Government of Pakistan and another vs. Tariq Hussain Farooqui and 3 others (PLD 1984 SC (AJ&K) 47) and Ch. Ajaib Hussain and another vs. Mst.
Zareen Akhtar and 11 others (2000 SCR 70) and requested that no case for dispensation of the Rules or condonation of delay has been made out by the appellants. The learned counsel submitted that the appellants were negligent in filing the petition for leave to appeal. The appellants in their application have submitted that they obtained the copy of the memorandum of Appeal No, 68/1999 filed before the High Court but could not annex the same with petition for leave to appeal.
It is factually in correct. The learned counsel submitted that an application was filed by the appellants before the High Court for obtaining only the copy of the judgment of the High Court and the copy of the memorandum of Appeal No, 67/1999 and not the copy of the memorandum of Appeal No, 68/1999. The appellants were not vigilant. Their appeal merits dismissal. The learned counsel relied upon the case titled Muhammad Azam and others vs. Khadim Hussain and others (Civil Appeal No, 68/2013, decided on 14th February, 2015).
6. We have heard the learned counsel for the parties and perused the record carefully. The appellants challenged the order dated 22nd February, 1978 by way of application under Section 7 of the Azad Jammu & Kashmir Waqaf Properties Act, 1960 before the District Judge, Muzaffarabad and later on through amendment also challenged the order dated 2nd January, 1972. After necessary proceedings, the District Judge through judgment dated 13' October, 1999, accepted the application declaring therein that the petitioners are entitled to Rs, 5,06282/- as costs of improvement and notification dated 22.2.1978 was cancelled. Both the parties challenged the said judgment by way of Appeals No, 67 and 68 of 1999 in the High Court. A difference of opinion arose between the members of the Division Bench, whereupon the matter was referred to the referee Judge. Due to retirement of referee Judge, the learned Chief Justice through order dated 22nd July, 2013, referred the matter to the division bench comprising of Mr. Justice Abdul Hamid Khan and Mr. Justice Ch. Jehandad Khan, Judges of the High Court, for disposal. The learned High Court partly accepted the appeal filed by Abid Hussain and others and ordered that they are entitled to the costs of improvement worth rupees two million (2000000/-). Appeal No, 68/1999 titled Chief Administrator Au.Qaf and another vs. Syed Abid Hussain Shah and others was partly accepted and the notifications dated 2" January, 1972 and 22nd January, 1978 were kept intact. The appellants have challenged the findings of the High Court to the extent of Appeal No, 68 of 1999.
7. The provisions of Order XIII, Rule 3 of the Azad Jammu & Kashmir Supreme Court Rules, 1978 are mandatory in nature and non-compliance of the same merits dismissal of petition for leave to appeal/appeal. For proper appreciation Rule 3 of Order XIII of the Supreme Court Rules, 1978 is reproduced as under:-- "Rule 3 of Order XIII
3. (1) The petitioner shall lodge at least four copies of:--
(i) his petition for special leave to appeal;
(ii) the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under Section 42(11) of the Constitution, if any, one copy each of which shall be certified to be correct; (iii).......................................
(iv).......................................
' The same proposition as is involved in the instant case came under consideration of this Court in the case reported as Ch. Ajaib Hussain and another vs. Mst. Zareen Akhtar and 11 others (2000 SCR 70) in the circumstances that two writ petitions in the High Court were heard and disposed off together. The writ petition filed by Ch. Ajaib Hussain & others was dismissed while the other filed by Zareen Akhtar & others was accepted. Ch. Ajaib Hussain and others filed petition for leave to appeal and filed a copy of the memo. Of writ petition with the petition for leave to appeal. An objection was raised that the writ petition in the High Court was amended and instead of filing the copy of amended writ petition, the appellants-petitioners have filed the copy of the original writ petition, which is not in existence after filing of the amended writ petition, therefore, petition for leave to appeal/appeal is not maintainable. The counsel for the appellant filed an application for condonation of delay and filing of copy of memo., of amended writ petition. This Court observed that the provisions of Order XIII, Rule 3 are mandatory in nature and non-compliance of these provisions of Rules merits dismissal of petition for leave to appeal/appeal. It was also observed that the appellants were not vigilant in filing the petition for leave to appeal/appeal. The application for condonation of delay and permission for filing the copy of the amended writ petition was also dismissed. It was observed at Page 73 of the report as under: "Clause (ii) reproduced above lays down clearly that certified copies of three documents have to be attached with the petition for leave to appeal which are;
(i) judgment and order sought to be appealed from;
(ii) grounds of 'appeal' or 'application' before the High Court and;
(iii) order of the High Court refusing grant of certificate, if any.
' As is clear, grounds of appeal or application are required to be filed with the petition for leave to appeal. The word "application" without any doubt covers all sorts of applications which can be moved before the High Court resulting in the judgment against which petition for leave to appeal is filed in this Court, be it a bail application or an application for revision, for grant or vacation of a stay order, or transfer application."
' At page 77, it was further held as under: "The fact that copies were obtained and were misplaced does not make out a case of condonation which can only be granted if sufficient cause is shown. We have gone through all the previous judgment in which appeals were dismissed for the fatal defect under discussion and find that the condonation was not granted to any appellant."
' Again the matter recently came under the consideration of this Court in the case titled Muhammad Azam and others vs. Khadim Hussain and others (Civil Appeal No, 68/2013, decided on 14th February, 2015). In the said case, two appeals were decided through a consolidated judgment.
Along with the petition for leave to appeal/appeal the copy of memorandum of only one appeal was filed. This Court dismissed the appeal. It was observed as under: "We have heard the learned counsel for the parties and perused the record, From the judgment & decree of the District Judge, Sudhnoti dated 16th August, 2006, two appeals; one titled Muhammad Azam & others vs. Khadim Hussain and others, Bearing No, 34/2005 and second; Nazar Muhammad & others vs. Khadim Hussain & others, Bearing No, 55/2006 were filed by the appellants in the High Court. Both the appeals were dismissed by the High Court through a consolidated judgment on 30th October, 2012. Rule 3 of Order XIII of the Azad Jammu & Kashmir Supreme Court Rules, 1978, provides the documents which shall be tiled along with the petition for leave to appeal. The same is reproduced as under: 'Rule 3 of Order XIII
3. (1) The petitioner shall lodge at least four copies of:-
(1) his petition for special leave to appeal;
(ii) the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under Section 42(11) of the Constitution, if any, one copy each of which shall be certified to be correct; (iii)..........................
(iv)..........................
' A perusal of rule makes it mandatory that petitioner shall lodge at least four copies of the petition for leave to appeal from the judgment and order sought to be appealed together with grounds of appeal or application before the High Court. The provisions of above mentioned Rule are mandatory and non-compliance results into dismissal of the petition for leave to appeal. This Court in a number of cases has observed that provisions of Rule are mandatory and non- compliance of Rule 3 of Order XIII results into dismissal of the petition for leave to appeal. It was observed in case titled Ch. Ajaib Hussain and another vs. Mst. Zareen Akthar and 11 others [2000 SCR 701, which is as under: "From these provisions it is clear that grounds of the application filed before the petition for leave to appeal and that an application includes one under Section 44 of the Azad Jammu & Kashmir interim Constitution Act. As held in a number of cases mentioned above, omission to file copy of the application is a fatal defect for which the appeal has to be dismissed."
8. We have considered the arguments of the counsel for the appellants that the copy of the application could not be filed inadvertently i.e, due to human error as the copy was obtained but it couldn't be filed along with the petition for leave to appeal. We have carefully perused the files of the High Court bearing Civil Appeal Nos. 67 and 68 of 1999. In Appeal No, 68/1999, the appellants filed application only for obtaining the copy of the judgment dated 12th December, 2013. No application was filed for obtaining the copy of the memorandum of appeal. Thus, it is clear that the appellants-petitioners never applied for obtaining the copy of memorandum of Appeal No,
68. No case is made out under Section 42-A of Azad Jammu & Kashmir Interim Constitution Act, 1974 read with Order XLIII of the Supreme Court Rules, 1978 for dispensation of Rule 3 of Order XIII for filing the copy of memorandum of appeal and condonation of delay for filing of copy. The petitioners- appellants are not entitled for dispensation of the requirement of Rule 3 of Order XIII of the Supreme Rules, 1978 or condonation of delay for filing the copy of memorandum of Appeal No, 68/1999. The petition for leave to appeal was not competently filed. The application merits dismissal. The application is disallowed and the objection is upheld. Consequently, the appeal is dismissed with no order as to the costs.