Kh. Muhammad Nasim, J. The captioned appeal by leave of the Court has been directed against the judgment and decree of the High Court, dated 21.12.2023, passed in Civil Appeal No. 50/2020.
2. The brief facts forming background of the captioned appeal are that the plaintiffs/appellants, herein, filed a suit for declaration and specific performance against the respondents, herein, in the Court of Additional District Judge Hajira on 02.12.2015, It was claimed that the plaintiffs/appellants, herein, are the successors-in-interest of Muhammad Khan. The predecessor-in-interest of the defendants-respondents, executed an agreement dated 19.05.2006 with predecessor-in-interest of the plaintiffs/appellants, whereby their predecessor-in-interest construed 16 shops and thereafter, another agreement was executed on 13.05.2007, whereby two shops were transferred in favour of their predecessor and also handed over the possession of the said shops. Later on, the predecessor in interest of the defendants/respondents, herein, transferred the aforesaid shops through sale-deed (Hiba Name) dated 28.09.2010, which is against their rights, hence, the same is liable to be cancelled. On filing of the suit, the defendants were summoned who appeared before the Court and filed written statement, wherein, the claim of the plaintiffs was refuted in toto. After necessary proceedings, the learned trial Court dismissed the suit for want of proof, vide judgment and decree dated 30.01.2020. Feeling dissatisfied from the said judgment and decree the appellants, herein, preferred an appeal before the High Court. Which has also been dismissed through the impugned judgment, hence, this appeal by leave of the Court.
3. At the very outset, Mr. Abdul Waheed Arif, the learned Advocate, representing the respondents, raised the preliminary objection on the maintainability of the appeal while submitting the lists of the legal heirs of the plaintiffs as well as the defendants, annexed with the memorandum of appeal at pages 73 and 74, are not the lists of the legal heirs filed before the trial Court, hence, the mandatory requirement of Order XIII, Rule 3(1-A) of the Azad Jammu and Kashmir Supreme Court Rules, 1978, has not been fulfilled and this appeal has been filed incompetently. When this position was confronted to the learned Advocate, representing the appellants, he admitted the factual position, however, prayed for decision of the case on merit.
4. It is an admitted position that the lists of the legal heirs annexed with the memo. of PLA/appeal are not the lists of the legal heirs of the plaintiffs and defendants, filed before the trial Court. This Court in a number of cases has held that under Sub-rule (1-A) of Rule 3 of Order XIII, of the Azad Jammu and Kashmir Supreme Court Rules, 1978, filing of lists of the legal heirs of the plaintiffs and the defendants filed before the trial Court are mandatory to be annexed with the memo of PLA/appeal. In view of the aforesaid statutory provision, it was enjoined upon the appellants, herein, to annex the lists of legal representatives of the plaintiffs and the defendants and if the same were not filed in the trial Court, then the certification of the trial Court in this regard should necessarily be brought on the record, which has also not been done. Reference may be made to a case reported as "Muhammad Aslam vs. Fazal Hussain and others" [2023 SCR 738], wherein, it was observed as under: "A plain reading of the above reproduced rule makes it abundantly clear that the compliance of the same is mandatory and failure to comply with it entails dismissal of the PLA/appeal on this sole ground. Whether the list of legal representatives was filed before the trial Court or not can only be determined either from the objection raised by the other party or from the certification issued by the trial Court. As according to the provision of the Supreme Court Rules, (Supra), filing of list of legal representatives along with the PLA/appeal is mandatory, therefore, it was enjoined upon the petitioner to annex the same with this PLA and if the same is not filed before the trial Court, then the certification of the trial Court should necessarily be brought on the record which has not been done. Even after filing the PLA, the petitioner has not submitted any application for brining on record the list of legal representatives within the prescribed period of limitation......."
5. In view of the above, as we have reached the conclusion that this appeal has been filed incompetently, therefore, there is no need to dilate upon the merits and demerits of the case as the same would be a futile exercise.
Consequently, the instant appeal being filed incompetently is hereby dismissed. No order as to costs.