Kh. Muhammad Nasim, J. All the titled appeals, by leave of the Court, have arisen out of the common judgment of the High Court dated 23.01.2019, hence, the same are being decided through the instant consolidated judgment.
2. The facts of the case, in brief, are that the respondents are employees of the Judiciary of Azad Jammu and Kashmir and serving in Supreme Court, High Court and the District judiciary. Their grievance is that the Judicial and Special Judicial Allowances, being received by them, are not taxable under Section 12(2)(c) read with clause 39 of the second schedule to the Income Tax Ordinance, 2001, however, the appellants, herein, are illegally deducting the tax on the said allowances. They filed three separate writ petitions before the High Court of Azad Jammu and Kashmir. The learned High Court, after necessary proceedings, accepted the writ petitions through the impugned consolidated judgment dated 23.01.2019 and declared that the Judicial and Special Judicial Allowances, being received by the respondents are not taxable. Consequently, the appellants, herein, were restrained from deducting tax on the said allowances. It was further directed that the Inland Revenue shall refund the amount of tax already deducted against said allowances from the salaries of the respondents. This judgment of the High Court is impugned before us.
3. Mr. Abdul Rashid Abbasi and Barrister Humayun Nawaz Khan, Advocates, the learned counsel representing the respondents raised two preliminary objections on the maintainability of the titled appeals. They submitted that after 13th amendment in the Azad Jammu and Kashmir Interim Constitution, 1974, the Income Tax is an attached department of the Inland Revenue. Under Rule 29 of the Azad Jammu and Kashmir Law Department Manual, 2016, no suit, appeal, review, revision, petition etc., on behalf of the Government or Public officer, as the case may be, shall be instituted without the sanction of the Minister-in-charge and in case of his absence the Secretary Law, thus, the titled appeals could have been filed only with prior/previous sanction of the Government but this mandatory requirement of law has not been fulfilled in the appeals (supra). In support of this contention, they referred to and relied upon the cases reported as Raja Muhammad Asghar and another vs. State and others [2017 SCR 1290], Department of Agriculture vs. Raees Khan and others [2015 SCR 1501], Ehtesab Bureau vs. Rashid Ahmed Katal and others [2011 SCR 512], Ehtesab Bureau vs. Ch. Muhammad Hanif [2004 SCR 284], Raja Nasim and others vs. Ehtesab Bureau [2004 SCR 274] and Azad Govt. and others vs. Habibullah Lone [PLD 1984 SC (AJ&K 13].
The next preliminary objection raised by them is that under Order XIII, Rule 3(iii) and Order XVII, Rule 4 read with Order VIII, Rule 8 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, a petition for leave to appeal in civil proceedings, in addition to other mandatory documents, has to be accompanied by a duly sworn in affidavit on behalf of the petitioners, however, in the titled case, the affidavits filed with the petitions for leave to appeal are neither sworn in before nor attested by an authority competent to administer oath and attest affidavits. Therefore, the affidavits filed with the titled appeals do not fulfill the requirements of law. The provisions of Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, are mandatory in nature and failure to comply with the same entails dismissal of the titled appeals. In this regard, they referred to the cases reported as Syed Kafiat Hussain and another vs. Syeda Khadija Kazmi and others [2017 SCR 999], Lt. Col. (Rtd.) Ghazanfar Abbas Shah vs. Mehr Khalid and others [2015 SCMR 1585]; Sarfraz Ahmed Khan vs. District Judge Multan [2003 CLC 44] and Bashir Ahmed vs. Abdul Wahid [PLD 1995 Lahore 98].
4. While replying to the preliminary objections, Meer Sharafat Hussain, Advocate, the learned counsel representing the appellants contended that the appeals have been filed competently. He placed on record the copy of the notification dated 21.03.2019 and stated that according to this notification subsequently the sanction was granted by the Government for filing of the appeals. He added that according to the principle of law laid down by this Court in the case reported as Abdul Razzaq and others vs. Anwar Hussain and others [2005 SCR 194] a cause instituted or filed before a notification issued by competent authority can be validated provided the limitation for its filing still remains. In the instant case, sanction was granted on 21.03.2019, whereas, the impugned judgment of the High Court was passed on 23.01.2019, hence, period of limitation for filing of PLA was still available. In this state of affairs, the objection of the learned counsel for the respondents is not correct. So far as the other objection relating to the attestation of affidavits, is concerned, he contended that under the Azad Jammu and Kashmir Supreme Court Rules, 1978, it was the duty of the Registrar to attest affidavit, or otherwise return the petition while recording reasons but in this case the Registrar has failed to fulfill his obligation. The learned counsel in support of his contentions, also referred to the case reported as 2014 SCR 1519, but no judgment has been found on the referred page.
5. We have heard the learned counsel for the parties and gone through the record. The preliminary objections raised by the learned counsel for the respondents are:-
(i) That the titled appeals have been filed without prior/previous sanction of the Government, which is the mandatory requirement of Rule 29 of the Azad Jammu and Kashmir Law Department Manual, 2016; and
(ii) That the affidavits filed along with the titled appeals are neither sworn in before nor attested by an authority competent to administer oath and attest affidavits, which is the mandatory requirement of Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978.
Although, both the above objections are of prime consideration, however, while drafting the proposed judgment we have come across another legal flaw/defect. The record shows that before the High Court three writ petitions bearing No. 1496, 1613 and 1614 were filed by the respondents. The learned High Court accepted the writ petitions through the impugned consolidated judgment.
Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, postulates-that the petitioner shall lodge at least four copies of 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. The aforesaid statutory provision is mandatory in nature and non-compliance of same merits dismissal of petition for leave to appeal/ appeal. In this case, the appellants have assailed the consolidated judgment of the High Court by filing appeals but in all the appeals the grounds of only one respective writ petition have been annexed, whereas, according to the principle of law laid down by this Court in a number of cases, the appellants were duty bound to annex all the three writ petitions with each memo. of appeal. We are fortified in our view from the principle of law laid down by this Court in the case reported as Syed Abid Hussain Shah vs. Administrator Auqaf and others 2015 SCR 1220], wherein, it has been held that: "7. The provisions of Order XIII, Rule 3 of the Azad Jammu and 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 and others was dismissed while the other filed by Zareen Akhtar and 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 dear, 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 and decree of the District Judge, Sudhnoti dated 16th August, 2006, two appeals; one titled Muhammad Azam and others vs. Khadim Husain and others, bearing No. 34/2005 and second; Nazar Muhammad and others vs. Khadim Hussain and 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 and Kashmir Supreme Court Rules, 1978, provides the documents which shall be filed 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:-
(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) ............................................
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 70], 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 and 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."
6. On discovery of the above proposition, we have called the learned counsel for the appellants, Meer Sharafat Hussain, Advocate, in Chamber. When he was confronted in this regard, he submitted that in all the three appeals, the copy of relevant writ petition has been annexed and there is no need to annex all the three writ petitions in each of the appeal. However, at the end of day, he submitted that the case should be decided on merits. In a recent case, titled Wajid Qureshi and others vs. Municipal Corporation and others [Civil PLA Nos. 353 and 354 of 2021, decided on 09.12.20211 two writ petitions filed before the High Court, were dismissed through the consolidated judgment. Against the judgment of the High Court, two petitions for leave to appeal were lodged before this Court, by the learned counsel for the petitioners, while annexing the respective copies of the writ petitions in each petition for leave to appeal. A preliminary objection pertaining to violation of Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 was raised from other side, whereupon, this Court dismissed the petitions due to non-compliance of mandatory provisions of Rules. The proposition of law laid down in the referred case has been reiterated in numerous judgments. Reference may be made to the cases reported as Mumtaz Husain Sabir vs. AJK Govt. and others [2022 SCR 685], Ilyas Jandalvi and others vs. Peal Development Authority [2022 SCR 812] and WAPDA vs. Chaudhary Muhammad Masoom and others [2022 SCR 883].
Similar position exists in the case in hand. The appellants have annexed only the copies of the respective writ petitions in each appeal, hence, they have deviated from the principle of law laid down by this Court in a plethora of judgments.
7. As stated hereinabove, the provisions of Order XIII, Rule 3, are mandatory in nature, hence, all the titled appeals are liable to be dismissed on this sole ground.
8. So far as the other propositions whether subsequent sanction by the Government can validate the previous action of filing of the appeal without obtaining prior/previous sanction and violation of Order XIII, Rule 3, read with Order XVII, Rule 4 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, are concerned; as the titled appeals are even otherwise not maintainable, hence, these propositions are left open to be decided in any other appropriate case.
For the reasons stated, hereinabove, all the titled appeals are dismissed due to non-compliance of mandatory provisions of Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978. No order as to costs.