1. ' SAJJAD ALI SHAH, J.---The appellant being one of the legal heirs, who was impleaded as defendant after the death of his father late .Atique Saeed, through instant appeal has impugned judgment and decree dated 02..06.2006 passed in Suit No,741 of 2003 whereby the learned Single Judge of this Court, on the original side, has decreed the suit filed by the respondent No,1 seeking specific performance of sale agreement dated 04.02.2003 against all the legal heirs of original defendant. It would also be relevant to mention that the remaining judgmentdebtors/legal heirs of late Atique Saeed i.e, respondents Nos.3 to 11 had filed a separate appeal being HCA No,352/2006 which after hearing was dismissed by us through a short order on 18.11.2014.
2. ' Briefly the respondent No,1 filed a suit against late Atique Saeed and the respondent No,2 (City District Govt. Karachi) seeking specific performance of sale agreement dated 04.02.2003 whereby late Atique Saeed has agreed to sell a plot of land bearing No,8/2/B, Sector 7, admeasuring 4081.94 square yards or thereabouts situated at Korangi Industrial Area together with constructed/covered area of 6200 square feet against total sale consideration of Rs,1,28,00,000/-. It was the case of the respondent No,1 that in consideration of the sale agreement a sum of Rs,12,80,000/- through cross cheque dated 06.02.2003 at the time of execution of sale agreement was paid, whereas a further sum of Rs,4,00,000/- was paid through another cross cheque dated 24.04.2003, Whereas remainder of Rs,1,11,20,000/- were payable within 120 days from the date of signing of the sale agreement. It was asserted that since late Atique Saeed avoided performance of sale agreement, therefore, legal notices dated 24.05.2003 as well as 11.08.2003 requesting for specific performance of the agreement were issued, but to no effect. The respondent No,1 apprehending foul play on 30.06.2003 approached, this Court by filing a suit seeking specific performance of the stated sale agreement. The defendant after having been served on 24.10.2003 filed written-statement asserting therein that respondent No,1 through his lawyer had prepared sale agreement which did not give the correct details of the property, as it was far long than fraudulently described in the sale agreement. It was asserted that the partition of the suit property is not feasible nor practicable, as the size of the property intended to be sold is shrouded in mystery. It was further asserted that the area of plot was 5016 square yards and the constructed area being 10,000 Square feet and the respondent No,1 by improperly describing the property intended to usurp the entire property by fraud. In the end, it was asserted that the performance of the contract was improbable and beyond the scope of law and, therefore, sought dismissal of the suit. The trial Court on the basis of the pleadings framed as many as five issues and after considering the evidence which the parties brought on record 'decided all the issues in favour of the respondent No,1 /plaintiff and consequently decreed the suit, which judgment and decree has been impugned by way of this appeal.
3. ' This appeal admittedly has been filed after the expiry of prescribed period of limitation by annexing photocopy of judgment and decree with the memorandum, therefore, an application under section 5 of the Limitation Act as well as an application seeking exemption from filing the certified copy of judgment and decree are listed which would accordingly be decided along with appeal.
4. ' Mr. Mushtaq A. Memon, learned counsel appearing for the appellant, has contended that the suit was decreed on 02.06.2006 and the .Counsel who was representing all the defendants applied for the certified copy of judgment and decree on 03.06.2006, the copy was made ready and delivered on 07.8.2006 on the basis whereof rest of the legal heirs filed a separate appeal. Per counsel, the present appellant had obtained photocopy of said judgment and filed instant appeal on 26.08.2006. He, therefore, prayed that after the delay in filing appeal is condoned the appellant be exempted from filing certified copy of judgment and decree. He further stated that the appellant has obtained certified copy of the judgment and decree on 26.6.2010 as an abandoned caution filed the same on 02.07.2010 along with an application under section 5 of the Limitation Act, which may be accepted. Per counsel, dismissal of the appeal for non-filing of certified copy being hyper technical and would not promote cause of justice. Mr. Memon further pleaded that once the Court has issued notices on this appeal then it has impliedly dispensed with the filing of judgment and decree in terms of Order XLI, Rule 1, C.P.C. Reliance has been placed on the judgments of the apex Court as well as this Court in the cases of (1) Mst. Safia Begum v. Raj Din and others (1993 SCMR 882), (2) Mst. Shagufta Bano v. Hussain Abbas Abidi and another (1988 MLD 2674), (3) Bodh Narain Mahto v. Mahabir Pd. And others (AIR 1940 Patna 176) and (4) AGENT, G.I.P. Ry. Co. v. Jasrup Shrinath (1990 Indian Cases 135). Mr. Mushtaq A. Memon to establish uncertainty pleaded that the appellant sold out to the respondent plot admeasuring 4081.94 square yards with covered area of 6200 square feet and the inspection carried out reflects that actual area of the plot was 5016 square yards with construction of 11,450 square feet. Counsel further while placing reliance on the Commissioner's report contended that the area sold cannot be bifurcated and on account of such uncertainty respondent was not entitled to a decree of a specific performance. Mr. Mushtaq Memon in support of his contentions has placed reliance on the judgments of this Court in the case of Haji Abdul Ghaffar v. Haji Rauf (1991 CLC 734), Chaudhry Shah Muhammad and 6 .Others v.
5. Muhammad Ishaq and 5 others (2001 MLD 1518) and Fida Hussain .v. Falai Khan (2002 CLC 1339).
6. Mr.Mushtaq Memon further contended that PT 1 (Exh.16) which reflects area of the plot as 4081.94 square yards .With a covered area of 6200 square feet is not substantive proof of title or the entitlement and at the most could have been used as corroborative niece of evidence. In the end, learned counsel pleaded that the respondent never refused the specific performance of the agreement and has even of to sell the excess covered area upon payment of enhanced consideration as deposed by the appellant in his evidence and since the respondent No,1 is not ready to pay the enhanced price for the entire property, therefore, the suit be dismissed as neither the property is divisible nor terms and conditions of the agreement are clear.
7. ' On the other hand, Mr. Mansoor-ur-Arfin, learned counsel appearing for the respondent No,1, has contended that the judgment and decree were passed on 02.06.2006, whereas certified copy of judgment and decree (on the basis whereof High Court Appeal No,352 of 2006 was filed) was applied on 03.06.2006 which were made ready and delivered on 07.08.2006 and the instant appeal was filed on 26.8.2006 that too without certified copy of judgment and decree, therefore, the appeal is liable to be dismissed. It was contended that Order XLI, rule 1, C.P.C. Being a mandatory provision requires that 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 According to the learned counsel, the Appellate Court can only dispense with the filing of judgment and not a decree and in support of his contention has placed reliance on the judgments of the apex Court as well as this Court in the cases of (1) Imam Gul v. Mst. Begun Ji (1980 CLC 530), (2)
8. Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others (2005 SCMR 931), (3) Abdul Rashid and others v. Abdul Ghani and others (2011 MLD 1597). Learned counsel further contended that the appeal on the basis of photocopies of judgment and decree cannot sustain and to support his contention reliance was placed oh the judgment of this Court in the case of (4) Cooper & Co. (Pvt.) Ltd. v. Laurel Navigation (Mauritius) Ltd. And another (PLD 2009 Karachi 288). On merits, it was contended that the terms of sale agreement are very specific and the intention of the respondent could be very well gathered that he sold all what he could legally sell and since the price of the property rapidly increased, therefore, an afterthought dishonest defence, which is liable to be rejected and the appeal be dismissed.
9. ' We have heard the learned counsel for the respective parties at length, perused the record with their able assistance and the case-law cited at bar.
10. ' This appeal was presented on 26.08.2006 against the judgment and decree passed on 02.06.2006 and along with memo of appeal Photostat copies of the certified copies of judgment and decree have been filed. Now two questions which require our consideration are (i) As to whether an appeal filed without certified copy of the judgment and decree could be maintained and if the answer is in positive then (ii) As to whether the benefit of exclusion of time for obtaining certified copy of the judgment and decree could be granted to a person who has filed an appeal on the basis of Photostat copies of the certified copies of 'judgment and decree. In order to respond these questions we would first examine .The judgments cited by Mr. Mushtaq A. Memon to support his contention that an appeal could be filed without certified copy of the judgment and, decree and alternatively the power .Of the Court to dispense with the requirement of filing the judgment and decree. Mr. Memon first cited the case of Mst. Safia Begun! (supra) in support of his contention that since notices on the appeal have been issued, therefore, the Court has impliedly dispensed with judgment and decree. Perusal of the cited judgment reflects that the apex Court on this issue has endorsed and approved the reasoning of the Lahore High Court in the case of Noor Muhammad v.
11. Ch. Ghulam Muhammad and others (PLD 1978 Lahore 819) while interpreting Rule 1 of Order XLI, C.P.C., the relevant portion of the judgment was reproduced by the apex Court in its judgment, which reads as follows: "The language used in rule 1 is such that it does not exclude the possibility of the Court dispensing with the copy through an act of Court or otherwise by implication. The word 'dispense with' has been used in the rule in a general sense which means either "permit the want of" of a certain thing or 'do without' it. Thus, both the modes of exercise of the power under rule 1 are permissible. The Court can formally, through an order of permission, dispense with; as also, by act of hearing the appeal without the help of the certified copy, exercise this power. It may also be observed that the power is wide enough to include those cases of urgency also where even unattested copies are not available. If that is so, the intention of the Legislature could not be other than the provision being salutary has to be applied liberally and in a pragmatic manner."
12. ' In cited judgment, the question before the apex Court was non-filing of certified copy of the judgment before the High Court, which without .Deciding the appeal on merits had dismissed the appeal for want of certified copy of the judgment. Though an application seeking exemption from filing certified copy of judgment on the ground that it could not be obtained, as R&Ps were summoned by the High Court was pending. The Supreme Court in these circumstances held that non-filing of judgment could have been dispensed with and the appeal ought to have been decided on merits and while setting aside the judgment of the High Court remanded the case back for adjudication on merits. The issue before the apex Court was non-filing of judgment only and not the decree. There is no cavil that the Appellate Court under Order XLI, Rule 1, C.P.C. Has the power to dispense with filing of judgment, but in the instant case the appellant has failed to file certified copy of the decree as well, therefore, the dicta laid down in the cited judgment with all due respect cannot be applied to this case.
13. ' In the case of Mst. Shagufta Bono (supra) cited by Mr. Memon, though the appeal was filed along with photocopy of judgment and decree, but subsequent to the filing of appeal certified copy of judgment and decree was placed on record and the Appellate Court held that in case period of limitation is calculated from the day certified copy of the judgment and decree was filed, the appeal was barred by four-days and, therefore, while declining to condone the delay dismissed the appeal, whereas a learned Judge of this Court while exercising Constitutional .Jurisdiction held that there was sufficient cause explained in the application under section 5 of the Limitation Act to condone the delay, therefore, the delay of four-days in filing certified copy of the judgment and decree ought to have been condoned. The petition was allowed and the case was 'remanded back for decision on merits. Again this judgment is of no help to the appellant, as it was not held in the cited judgment that appeal on the basis of a photocopy of judgment and decree is maintainable, but a delay of four-days in filing, the appeal was condoned meaning thereby that period for filing the appeal was counted on the basis of certified copy of the judgment and decree. In the instant case, certified copy of the judgment and decree has been filed or 02.07.2010 i.e, after almost 47 months of presenting the appeal and there is no reason or explanation offered to condone such delay.
14. ' The case of Bodh Narain Mahto (supra) cited by Mr. Mushtaq A. Memon is also not relevant. In the said case, an appeal was filed from an order passed under section 47 of the Code of Civil Procedure without copy of an order and the Registrar of the Court raised an objection that since an order under section 47, C.P.C. Has the force of the decree, therefore, the appeal was incompetent.
15. In that context, the Court observed that the provision of Order XLI, rule 1, C.P.C. Requires that the memorandum of appeal shall be accompanied by a copy of a decree appealed from and unless the Appellate Court dispenses therewith, of the judgment on which it is founded. The Court observed that in this Court no formal decree is prepared in a case under section 47 of the Code of Civil Procedure and Order XLI, rule 1, C.P.C. Does. Not expressly require that an order which has the force of the decree, but it is not a decree shall be filed with the memorandum.
16. ' The fourth judgment in line is of AGENT, G.I.P. Ry. Co. (supra), again in this judgment the question before the Court was non-filing of judgment. In the cited judgment it was contended by the respondent that the appeal should be rejected, as it was not accompanied by the copies of judgment as required by Order XLI, Rule 1, C.P.C. It was held that memorandum of appeal in each case stated that the copy of judgment would be given afterwards, and as the appeals were admitted on presentation, notices being ordered to be issued to the respondents, therefore, it must be taken that the Court dispensed with the copies of judgment. This judgment also is of no help to the appellant in the instant case.
17. ' On the other hand, Mr. Mansoor-ul-Arfin, learned counsel for the respondent No,1, has aptly relied upon the judgment of the Supreme Court of AJ&K in the case of Imran Gul (supra) wherein it was held that "it is therefore necessary for the appellant to annex both the documents unless a copy of a judgment is dispensed with by the Appellate Court. Consequently an appeal, that is filed with a copy of judgment alone and without a copy of the decree, cannot be deemed to have been validly presented and should be rejected if copy is not filed within the period of limitation prescribed for such appeal."
18. ' Likewise, in the case of Cooperative Model Town Society (supra) the apex Court in Para-6 of its, judgment held that "It has been clearly provided in Order XLI, rule 1, C.P.C. That certified copy of the decree had to be appended with the memo of appeal which is followed by the limiting words regarding certified copy of the judgment on which .The same was based therefore, the provision regarding production of certified.Copy of the decree-sheet shall be deemed to be mandltory. It has further been held in the case of Akbar Khan v. Muhammad Razzaq alias Abdur Razzaq PLD 1979 SC 830 that the appeal was not properly constituted if the same had been filed without certified copy of the decree-sheet."
19. ' Again in the case of Abdul Rashid (supra) a Division Bench of this Court held that "Every memorandum of appeal should be accompanied with the copy of the decree and copy of the judgment can .Be dispensed with by the Court but not the decree, as appeal is incompetent if the same is filed without the decree."
20. ' Likewise in the case of Cooper & Co. (Pvt.) Ltd. (supra) a Division Bench of this Court expressed its opinion on non-maintainability of an appeal for want of certified copy of order by observing that "we may point out that the appellant has filed the present appeal against the dismissal of his injunction application and it is the requirement of the appeal to file the true copy of impugned order along with appeal but find that the appellant has not filed true copies of impugned order and has filed photocopy of the impugned order, which, in our humble opinion is an inherent defect in appeal itself, as such the appeal is also not maintainable on this score."
21. From the discussion as hereinabove, the legal position which emerges is, that mere filing of Memorandum of appeal within the period of limitation is of no consequence, unless a certified copy of decree is filed before the period of limitation expires. So far as the certified copy of judgment is concerned, the language of Rule 1 of Order XLI, C.P.C. Leaves no doubt in our mind that it vests a discretion with the appellate Court to dispense with its filing.
22. ' However, in the instant case, the appellant along with the memorandum of appeal had filed photocopies of the certified copy of 'Judgment and Decree which were obtained by the counsel who was originally representing his predecessor-in-interest and after his demise all the legal heirs including appellant. It appears that on the basis of certified copies of Judgment and Decree so obtained, all the legal heirs excluding the appellant on 25.8.2006 filed High Court Appeal No, 352 of 2006, the appellant perhaps did not agree with the decision of his siblings and on 26.8.2006 filed this appeal through a different counsel and of course if he would have applied for another set of certified copy of Judgment and Decree, the appeal would have become barred by time and therefore, he had filed this appeal on the basis of photocopies of the certified copies of the Judgment and Decree so obtained. The appellant along with memorandum of appeal filed an application seeking exemption from filing certified copy of Judgment and Decree on the ground that original certified copies of Judgment and Decree have been filed with the memorandum of appeal in HCA No, 352 of 2006 preferred by his other siblings who have been arrayed in this appeal as the Respondents Nos.3 to 11. The record reflects that the appellant after almost four years of filing this appeal applied for certified copies of Judgment and decree obtained the same on 26.06.2010 and filed it in Court on 02.07.2010 along with an application under Section 5 of the Limitation Act seeking condonation of delay in filing this appeal.
23. ' The law on the issue as of today appears to be that filing of certified copy of Decree either with the memorandum of appeal or subsequent to the filing of appeal is mandatory and could not be dispensed with and or exempted, however, delay in filing the certified copy, of decree, could be condoned, in case sufficient cause to the satisfaction of the Court is shown. Reference can be made to the case of Rasheed Ahmed v. Province of Punjab (2004 SCMR 707) wherein an appeal was dismissed by the Additional District Judge being incompetent as the certified copies of Judgment and Decree of the trial Court were .Appended subsequently. The respondent filed a Civil Revision and the High Court accepted Revision and directed the trial Court to decide the appeal on merits. Supreme Court refused the leave to appeal on the ground that discretion has been exercised by the High Court to advance the cause of justice. Likewise, in the case of Cooperative Model Town Society v. Mst. Asghari Safdar and another (2005 SCMR 931 cited by Mr. Arlin, the appellant had filed the appeal within ,period of limitation without certified copies for Judgment and Decree which were subsequently obtained and were not timely filed in Court, the appellant retained the copy of almost one year thereafter sought permission of the appellate Court for tiling certified copies of Judgment and Decree which was refused. In the second appeal while dismissing the appeal late, Court held that the petitioner was not entitled to the exercise of discretion in his favour and, as valuable right had accrued to respondents on the point of limitation on account of defective institution of appeal, Supreme Court while dismissing the Civil Petition upholding the dismissal expressed its opinion that the failure of the petitioner to explain as to why after obtaining certified copies of Judgment and Decree he did not append the same with memo of appeal filed on the same day and even immediately thereafter within period of limitation.
24. ' Now we would examine the case of the appellant on these parameters. The Judgment and Decree were passed on 02.06.2006, the .Appellant filed the instant appeal on 26.08.2006 on the basis of photocopies of Judgment and Decree and in case by stretching the discretion at the optimum we allow the exclusion of time for obtaining original of the certified copies of Judgment and Decree under Section 12 of the Limitation Act, (which was already granted to his other siblings while filing HCA No, 352 of 2006) the appeal would be in time. However, there appears to be no explanation as to why the appellant did not apply for the certified copies of the Judgment and Decree immediately after he decided to file a separate appeal and filed the same with an application under section 5 of the Limitation Act, explaining the -delay of each and every day in obtaining and tiling the certified copy of decree, in the instant case the appellant after filing the appeal on 26.08.2006 had applied for certified copies of Judgment and Decree on 26.06.2010 and filed the same in Court on 02.07.2010 with an application under Section 5 of the Limitation Act without accounting for each and every day's delay. In our opinion neither sufficient cause is shown nor a case of exercising discretion in favour of the appellant to condone delay of almost four years in filing certified copy of decree is made out.
25. ' In view of what has been discussed above, the application seeking exemption from filing certified copy of Decree is dismissed being incompetent, whereas, the application under Section 5 of the Limitation Act seeking condonation of almost 47 months' delay being without sufficient cause is also dismissed and so is the appeal being hopelessly barred by time. However, we would like to mention here that HCA No, 352/2006 filed against the impugned Judgment and Decree by the other siblings of the present appellant after adverting to the merits of the case through a separate Judgment was dismissed by us on 18.11.2014.