Through this constitutional petition, the petitioner has called in question orders dated 04.02.2022 and 14.03.2022, respectively , passed by learned Civil Judge and learned Addl. District Judge, Faisalabad, whereby in petitioner's Suit for Declaration and Cancellation of Documents, application filed by him for grant of temporary injunction/stay order has concurrently been dismissed.
2. It is contended by the learned counsel for the petitioner that the petitioner has got strong prima facie case and balance of convenience in his favour and he is likely to suffer an irreparable loss if stay is not granted. Further states that the learned appellate court instead of deciding the appeal on merit, has decided the same on technical ground by referring to petitioner's non-compliance of proviso of Order XLIII Rule 1 C.P.C as the reason for dismissing the same, which is not permissible as the court should have provided opportunity to the petitioner to comply with the same before passing any final order , hence, the impugned orders are not sustainable.
3. Heard. Record perused.
4. As a legal question is involved in the matter relating to jurisdiction of the court to decide appeal on ground of technicality relating to non-provision of copies of documents to be attached along with appeal against interlocutory order under Order XLIII Rule 1 of the C.P.C in terms of its proviso , which could be decided in absence of the private respondents and issuing notice to the respondents, who are 20 in number , is likely to unnecessarily delay the matter , therefore, issuance of notice to the said respondents is dispensed with.
5. The petitioner claims that land measuring 281 Kanal 10 Marlas situated in Square No. 77, Chak No. 225/RB, Tehsil and District Faisalabad, has been in his family' s possession since migration i.e., 1947, however , the said land is owned by the Provincial Government. The private respondents got transferred a portion of the same in their names through forged and fabricated sale deed, mutation of which was entered in the revenue record and hence, the said documents were liable to be cancelled. Along with the said suit, an appli cation for interim relief was also filed, which was dismissed by the learned trial court vide order dated 04.02.2022, the operative part of which is reproduced below:- "4. Perusal of record reveals that plaintiffs/petitioners have challenged vires of registered sale deeds on the ground of fraud and misrepresentation. Copies of said instruments are available on the file which are duly executed in favour of defendants/respondents. Presumption of correctness is attached with registered sale deeds.
Plaintiffs/petitioners are yet to prove their case through cogent and confidence inspiring evidence. Case of plaintiffs/petitioners is based upon oral assertion, whereas, defendants/respondents are owners of suit property on the basis of documentary record. It is settled principle of law that documentary record holds sway over oral assertions of parties. So, it can be safely held that plaintiffs/petitioners have no prima facie case in their favour , balance of inconvenience lies in favour of defendants / respondents and they would suffer irreparable loss in case instant application is accepted. So, instant application under order 39 rule 1 & 2 CPC is hereby dismissed."
The petitioner challenged the said order by filing appeal before the learned Addl. District Judge, Faisalabad, who vide order dated 14.03.2022 has dismissed the same for non-compliance of proviso of Order XLIII Rule 1 C.P.C, the operative part of the said order is reproduced below:- "5. Perusal of the record shows that present appellants/plaintiffs filed suit for declaration alongwith permanent and mandatory injunction for cancellation of documents and made averment that they have been residing in the suit property the detail of which has been described in the plaint since 1947. Appellants/plaintiffs further stated that respondents/ defendants made forged and fabricated registered sale deed No. 10477 dated 26.09.2003 with regard to property measuring 52-Kanal, 13-Marlay and transferred the suit property in favour of defendant No. 18 and mutation No. 20912 dated 13.12.200 3 was also sanctioned. Appellants/plaintiffs further stated that registered sale deed No. 10477 dated 26.09.2003 and mutation No. 20912 dated 13.12.2003 are liable to be cancelled and requested that decree for declaration may be passed wherein registered sale deed be declared null and void and ineffective upon the rights of appellant/plaintiffs. Along with the suit an application for grant of temporary injunction was also attached wherein appellant/plaintiff made prayer that till the pendency of the suit the respondent/ defendants be restrained from transferring the suit property in any manner whatsoever . The learned trial court after hearing the arguments of the learned counsel for the parties and after going through the record vide order dated 04.02.2022 dismissed the application of the appellants/plaintiffs for grant of temporary injunction.
6. The appellants/plaintiffs have not attached with the appeal certified copies of pleadings, interims order and documents available in the file of the learned trial court which is mandatory requir ement as per amendment in the Order 43, Rule 1 CPC vide notification No. 237/legis/XI-Y -26, dated 15.08.2018. The appellants/plaintiffs failed to fulfill the mandatory requirement so the appeal is hereby dismissed being non-maintainable."
(Emphasis supplied)
6. Order XLIII relates to appeals against orders and Rule 1 thereof provides detail of orders against which appeal lies before the appellate court. The freshly added proviso of Order XLIII Rule 1 of the C.P.C through Notification No.237/legis/XI-Y -26, dated 15.08.2018 is reproduced below:- "Provided that the appellant, while filing an appeal under this Order shall along with the memorandum of appeal, furnish copies of the pleadings, order sheet of the subordinate Court and all necessary documents."
The perusal of the said proviso added to Order XLIII Rule 1 C.P.C shows that while filing appeal, the petitioner was required to furnish copies of pleadings, order sheet of subordinate courts and all necessary documents. This proviso is similar to first proviso of Section 115 CPC relating to 'Revision' through which the petitioner is required to furnish copies of documents along with the Civil Revision, which is reproduced below:- "115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) To have exercised a jurisdiction not vested in it by law , or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregu larity, the High Court may make such order in the case as it thinks fit"
Provided that, where a person makes an application under this sub-section, he shall in support of such application, furnish copies of the pleadings, documents, and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.
(Emphasis supplied)
The consequence for not providing of copies of the afore-referred documents along with the appeal is not provided in the afore-referred proviso to Order XLIII Rule 1 of the C.P.C similarly as was not provided in Section 115 of the C.P.C in case of "Revision". As this is a case of first impression relating to filing of copies with appeal in terms of newly added proviso, judgment of superior courts relating to provision of certified copies in case of "Revision" would be very relevant for the purpose of deciding the dispute in hand.
7. In case of Muhammad Mustafa versus Jannat Bibi and others (2006 YLR 941), this Court has held that Revision petitioner was required to furnish copies of pleadings, documents and orders of subordinate court in terms of proviso to Section 115 of the C.P.C and where such documents are not attached, the court must afford opportunity to petitioner to furnish such document or even the Revisional court could itself requisite the record of the trial court and no third way was open to Revisional court to dismiss the revision straightaway for non-furnishing of certified copy at the first instance, espe cially after entertainment as well as the admission for hearing of the case on merits.
8. In case of Abdul Ghani versus Additional District Judge and 10 others (1991 CLC 1375 ), this Court observed that petitioner's revision petition was rejected merely because copies annexed thereto were un-certified.
The Revisional court should have allowed at least one opportunity to the petitioner to rectify the said defect by filing certified copies especially when revision had been admitted to regular hearing. The court's order rejecting the revision petition merely because copies annexed thereto were uncertified, was set-aside by declaring that order passed in revision, whereby the court chose to sacrifice justice as the altar of technicalities, was not sustainable.
9. In the case reported as 1991 MLD 663 (Mehr LAL KHAN versus HAJI AHMAD and 2 others), this Court observed that where requisite documents are not attached with the revision petition in terms of Section 115 of the C.P.C, the court could at worst refuse to consider documents, which were not filed with the revision but could not dismiss the revision as a whole.
10. In the case reported as 2013 SCMR 1047 (BASHIR AHMED and others Versus AHMED YAR KHAN and others), the question of dismissal of Civil Revision for non-production of copies of documents required to be attached in view of first proviso to Section 115 C.P.C came up for consideration before the Hon'ble Supreme Cour t of Pakistan, wherein the said order was set-aside by declaring the approach adopted by the High Court as harsh, which derailed the spirit of judicial system for dispensation of justice on merits and such an order could not be approved. The relevant portion is reproduced below:- "2. The learned ASCs present before us conceded that on the date of hearing when impugned order was passed, the R&Ps of two Courts below were available before the revisional Court so as to enable it to hear and decide the revision petition on merits and in accordance with law, but still it opted to dismiss the revision petition on technical ground without even calling upon the petitioner to do the needful in this regard. Such harsh approach, derailing the very spirit of this judicial system for dispensation of justice on merits cannot be approved."
11. In case reported as approved PLD 1971 Supreme Court 536 (REHM ALI AND ANOTHER versus Mst. BIBI JI BEGUM AND OTHERS), the Hon'ble Supreme Court of Pakistan observed that High Court in exercise of its revisional jurisdiction may interfere with and reverse order complained of even without calling for record of the case. True copies of all documents not furnished along with the revision petition and likelihood of prejudiced being caused to other party by order made in revision by the High Court in absence of record did not make said order without jurisdiction. However , while setting-aside order on other grounds, matter was remanded for decision afresh.
12. The crux of principles laid down in the afore referred judgments is that if documents in terms of the first proviso to Section 115 of the C.P.C are not attached with the revision, the said defect was a curable defect and could not be treated to be fatal to the case of the revision petitioner and court instead of dismissing the revision forthwith is required to afford opportunity to the revision petitioner to produce documents to remove the said defect and deciding the revision on technical grounds instead of deciding the same after providing opportunity to remove the defect would amount to a harsh approach, derailing the spirit of judicial system for dispensation of justice on merits, which cannot be approved. An order passed by the court in the absence of record / documents did not ipso facto make such order without jurisdiction, however, when such documents are not attached, the court at the most could refuse to consider such documents and could not dismiss the revision on the basis of said defect.
13. In the present case, certified copies of certain documents required to be placed on record in terms of proviso to Order XLIII Rule 1 of the C.P.C. had not been attached with the appeal, which appeal was filed on 04.03.2022 and later on fixed for hearing on 14.03.2022 when the appellate court dismissed the appeal by passing the order of dismissal of appeal for non-compliance of requirements of proviso to Order XLIII Rule 1 of the C.P.C, howe ver, the said order does not show that the petitioner was provided with an opportunity to comply with the requirement of proviso of order XLIII Rule 1 C.P.C mentioned above by supplying copies of documents required to be attached with this appeal, which course should have been adopted in view of the principles laid down in the afore-referred judgments relating to revisions, which mutatis mutandis are applicable to the cases of appeal against orders. In view thereof, it appears that the appellate court has not properly exercised the jurisdiction vested in it. Besides impugned order passed by the Addl. District Judge, Faisalabad, is penal in nature, whereby the petitioner has been declined right of appeal available to him without determining that whether the mistake was bona fide or his conduct was contumacious, which could only be done after providing opportunity to the petitioner to supply the relevant record and even if thereafter the petitioner had failed to comply with the order in terms of order of court requiring him to comply with the provision of proviso of Order XLIII Rule 1 of the C.P.C, the court could after being satisfied of his conduct being contumacious may have invoked the penal provisions of deciding the matter on technical grounds for non-compliance of order of the court, which procedure has not been adopted in this case.
Consequently , the order passed by the appellate court is not sustainable and apparently smack of miscarriage of justice and is liable to be set-aside.
14. In view of what has been discussed above, this constitutional petition is allowed in terms that the impugned order dated 14.03.2022 passed by the learned Addl. District Judge, Faisalabad, is set-aside. The appeal filed by the petitioner shall be deemed to be pending before the learned appellate court, which after providing opportunity to the petitioner to place on record copies of the record in terms of proviso of order XLIII Rule 1 C.P.C shall proceed further in the matter on its own merits in accordance with law. However , if the petitioner does not comply with the proviso of Order XLIII Rule 1 of the C.P.C despite orders passed by the court of providing him an opportunity to do the needful, then the law shall take its own course.