This petition under section 115, C. P. C. Calls in question the legality and propriety of the judgment dated 2-1-1982 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal and maintained the decree dated 2-6-1979 of the learned Civil Judge, Lahore rejecting petitioner's suit under Order VII, rule 11, C. P. C.
2. The facts giving rise to this petition are that the petitioner filed a suit for permanent injunction against the respondent asserting that the petitioner was co-owner in occupation of a room in the disputed pro--perty which had not been partitioned; and could not be ejected except in due course of law. The suit was resisted by the respondent. Alongwith the suit an application under Order XXXIX, rules 1 & 2, C. P. C. Was also filed by the petitioner. The learned Civil Judge while dismissing the petitioner's application rejected the plaint under Order VII, rule 11, C. P. C. On the ground that it did not disclose any cause of action in favour of the petitioner. The petitioner assailed the aforementioned order in appeal which was dismissed on 2-1-1982 by the learned Additional District Judge, Lahore.
3. Learned counsel for the petitioner contended that after order dated 2-6-1979 was passed by the learned Civil Judge he applied for copies of the impugned order and the decree sheet which were supplied to him on 6-6-1779. On 17-6-1979 he preferred an appeal in the Court of learned District Judge, Lahore. The appeal was scrutinized by the Clerk of Court who made endorsement thereon to the effect that it was in order. The same was later on entrusted to the learned Additional District Judge, Lahore for disposal. The learned Additional District Judge, Lahore after hearing learned counsel for the parties dismissed the appeal on the ground that the same was barred by time. The learned Court while recording judgment discovered that copy of the impugned decree-sheet dated 2-6-1979 was not on the file. He did not dispense with the copy of the decree and held the appeal barred by tine and dismissed the same. It was submitted that the learned Additional District Judge did not afford the petitioners opportunity of hearing otherwise it would have been proved that the copy of the decree sheet with the memorandum of appeal was filed by the petitioner. Learned counsel for the petitioner next argued that as the plaint was rejected under Order' VII, rule 11; C. P. C. And the same being decree within the meaning of section 2 (2) of the Civil Pro--cedure Code no separate decree sheet was required to be drawn and filed with appeal. He relied on Feroze Shah v. Kalu (AIR 1.936 Pesh. 115).
4. Learned counsel for the respondent on the other hand contended that since a decree sheet was prepared alongwith the order under Order VII, rule 11, C. P. C. It was imperative for the appellant to have filed the same with the memorandum of appeal within the period of limitation provided under the law. The learned first appellate Court rightly dismissed the appeal of the petitioner when discovered that the same had been filed without copy of decree sheet. It was next argued that the non-availability of the decree sheet on the record raised a strong presumption that the same was not filed with the memorandum of appeal. He, however, could not controvert this position that in the event the learned Additional District Judge discovered from the file non-availability of the copy of the decree sheet in the process of recording judgment ; he was required to hear the petitioner before passing the impugned judgment. It was next submitted that drawing of decree-sheet even in case where the plaint had been rejected under Order VII, rule 11, C. P. C. Was necessary and in case the same was prepared it was incumbent upon the petitioner to have filed the same with the memorandum of appeal. He relied on Jagat Dhish Bhargova v. Jahawar Lal Bhargava (AIR 1961 SC 382) and Hesna Hena Akhtari Begum v. Dacca Improvement Trust (PLD 1969 Dacca 82) in support of his contentions.
5. I have beard learned counsel for the parties and perused the relevant record. Undoubtedly the learned Additional District Judge while recording the impugned judgment discovered that the decree sheet did not accompany the memorandum of appeal and without affording opportunity of hearing to the petitioner dismissed the appeal. The petitioner's application for obtain--ing copy of the impugned order with the decree sheet and secrutiny of his appeal by the Clerk of Court and finding it in order, would lead one, to think that the petitioner might have filed the copy of the decree sheet along with the memorandum of appeal and the same got detached or misplaced later on. In any case this matter required an inquiry. Learned counsel for the parties agree for remand of this case to the learned Additional District Judge who would inquire into the matter, bear the parties and decide the appeal afresh in the light of his findings and in accordance with law.
6. In the result this petition is allowed, the judgment and decree of the lower appellate Court is set aside and case is remanded to him to hold inquiry and determine if the copy of decree sheet was filed by the petitioner with the memorandum of appeal and decide the appeal afresh in the light of his findings and in accordance with law within three months.
7. The parties are directed to appear before the learned Additional District Judge, Lahore on 20-2- 1982.
8. There shall be no order as to costs.