1. ' This second appeal is directed against the judgment and decree passed by the learned District Judge, Muzaffarabad on 15-5-1983 whereby the learned District Judge rejected the appeal preferred by All Zaman appellant against Mst. Qasim Jan and others.
2. This appeal arises out of the following facts :- Ali Zaman (appellant) instituted a civil suit for the restoration of Conjugal Rights against Mst. Qasim Jan daughter of Manga resident of Ghartham Tehsil Hattian, District Muzaffarabad on Leh of November, 1979 before the Sub-Judge, Hattian. In the suit he averred that he was married to Mat.
2. Qasim Jan approximately five months before the institution of the suit and that he performed her marital obligations upto Eid-ul-Mubarik on 31-10-1979 when she left the house of the plaintiff- appellant and went to live with Mst. Bakbat Noor wife of Alam Din. Thereafter she never returned to the house of the appellant despite his repeated demands that she should come to live with him.
3. The suit was dismissed after the trial of the case by the learned Sub-Judge vide his judgment paised on 20-1271980.
4. ' The appellant Ali Zaman went in appeal before the District Judge, Muzaffarabad on 6-1.1981 who dismissed his appeal vide his judgment and decree dated- 45-5-1923-.
3. Now the appellant, feeling aggrieved by the judgment and decree passed by the learned District Judge, Muzaffaeabael, has come up in second appeal before the High Court and has assailed the judgments and decrees of both the lower Courts.
4. The appeal before the High Court was drafted on 6-7-1983 and presented before this Court od 13-8-1983 i,e, on the last day of the limitation fixed for such appeals. The report/note of the Deputy Registrar who received the appeal on 13-8-1983 reads as under : {{URDU TEXT}} ' From the perusal of the appeal file, it appears that the office of the High Court did not bother to submit any report regarding the non-filing of the decree-sheet and about the incompetency of the appeal. In fact, the copy of the decree appealed against was not filed with the memorandum of appeal although the copy of the judgment of the District Judge was appended with it. A learned Judge of this Court passed the following order on 17-8-1983.
5. "Notices shall issue to the respondents and record shall be sent for. To come up for constitution of Bench as well as for further proceedings on 22-10-1e83."
6. ' I have mentioned these facts simply to show that it was never brought to the notice of the High Court that the appellant failed to file a copy of the decree sheet alongwith the memorandum of appeal and as such this appeal was not validly presented. I shall advert to this aspect of the case in my judgment later oh.
5. Mr. Nazir Ahmed Qadri, the learned counsel for the respondent, has raised a preliminary objection that the appeal is incompetent because no certified (or even non-certified) copy of the decree passed by the District Judge on 15-5-1983 was attached with the memorandum of appeal.
7. Lie referred to Order XLI, rule 1, C. P. C. And submitted that Order XLI, rule 1 makes it an inflexible rule that in case of appeals from decrees, the memorandum of appeal shall be accompanied by a copy of the decree and that the Court cannot dispense with it as the decree was prepared on 15- 5-1983 and the appellant slept over the matter and presented an incompetent appeal on the last day of the limitation fixed for second appeals.
6. The learned counsel for the appellant submitted that the High Court did not make him aware of the fact that the copy of the decree sheet was not attached with the memorandum of appeal and cited the case of 1411 Haider Shah v. Ghulam Hussain (1) and NLR 1980 SC J 519. The case of the learned counsel for the appellant is that his client should not be penalised for the omission of the report of the office and for non-production of the decree sheet appealed against. He submitted that A 1 R 1930 Rang. 235 helps him and that his client should not suffer for the fault of the Court in not discovering his mistake in time. He also argued that the High Court has impliedly dispensed with the production of the copy of the decree.
7. The other grounds taken by the learned counsel for the appellant are :- (i)That the appellant was not properly heard by the learned District Judge, Muzaffarabad and as such the judgment and decree stand vitiated by the mandatory provision of Order XLI, rule 16, C. P.
8. C. Which reads :- "On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal."
(ii) That the observations of the Courts below regarding the minority of the respondent Mst. Qasint Jan are incorrect as according to the evidence of Umar Din, P. W. The age of Mst. Qasim Jan comes to 18 years when she was married to him ; and
(iii) That the evidence of Abdur Rehman P. W. Was also not considered by both the lower Courts.
8. I have heard the leaned counsel, perused the record and examined the files of the trial Court and of the District Judge carefully and has also gone through the evidence led by the parties in this case.
9. First of all, I would like to deal with the preliminary objection regarding the incompetency of the second appeal due to nod-riling of the copy of the decree sheet passed and prepared on 15.5-1963 and then propose to deal with other points raised by the learned counsel for the appellant.
10. Order XLI, rule 1, C. P. C. Makes it an inflexible rule that in case of appeal from a decree, the memorandum of appeal shall be accompanied A by a copy of the decree. The Court cannot dispense with it as the rule is imperative. Order XLI, rule 1, C. P. C. Reads :- "(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. 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.
(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argu- {{FOOT NOTE}}
(1) 1984 CLC 3p {{FOOT NOTE}} ment or narrative ; and such grounds shall be numbered consecutively."
9. Order XLI, rule 1, C. P. C. Mates it imperative to file a copy of decree. With the memorandum of appeal otherwise the appeal is incompetent.
11. The following authorities lend support to this view :-
(1) AIR 1925 Lab. 438
(2) AIR 1927 Lab.
10. 49.
(3) AIR 1927 Lah.
11. 912.
(4) AIR 1936 Lab.
12. 293.
(5) AIR 1938 Nag.
13. 233.
(6) PLD 1958 Pesh.
14. 213.
(7) AIR 1961 SC 832.
(8) PLD 1977 Lab.
15. 937.
(9) PLD 1979 Lab.
16. 846.
(10) 1980 CLC 530.
(11) 1981 CLC 1479.
17. ' In Noor Din v. Secretary of State (1), appeal from an award was dismissed because the memorandum of appeal was not accompanied with the copy of the award appealed against. The appeal was dismissed relying upon an earlier decision Mubarak All Shah v. The Secretary of State (2).
18. ' In Hakam Beg and others v. Rahim Shah and others (3), it was observed at p. 914: "It is not necessary to refer to the authorities cited by the respondents Counsel that it is essential that a memorandum of appeal must be accompanied by a copy of the decree appealed against.
19. Indeed the provisions of Order XLI, rule 1, are imperative on this point."
20. ' In Girdhari La! v. Rattan Chand (4), Agha Haider, J. Held that there was no proper presentation of second appeal in as much as the plaintiff should ''have appealed against a decree dismissing his appeal under Order XLI, rule 1, C. P. C. To the lower Court and should have filed a decree of that appeal.
21. ' In Chetan La! Purshottam Singh Dado v. Dau G. S. Gupta and others (5) it was held that the provisions of Order %LI, rule 1, C. P. C. Are mandatory and omission to attach copy of decree is fatal to appeal. Relying on AIR 1928 Nag. 131, AIR 1927 Lah. 49, AIR 1918 All. 394 and AIR 1923 Mad. 482, the second appeal was dismissed.
22. ' In Sanaullah and others v. Ghulam Qadir and others (6), a preliminary objection taken by the learned counsel for Mst. Sherin Taj Bibi that the appeal was incompetent was upheld. The learned Judge (Muhammad Shafi, J.) observed at p. 215 :- "Right of appeal is a creature of a statute. In all suits of civil nature tribal by the Courts under section 9 of the C. P. C., such right is created by section 96 of the same Code which runs as under :- ' Save where otherwise expressly provided in the body of this Code or {{FOOT NOTE}}
(1) AIR 1927 Lab. 49 (2) AIR 1925 Lah 438
(3) AIR 1927 Lab. 912 (4) AIR 1936 Lah. 293
(5) AIR 1938 Nag. 233 (6) PLD 1958 Posh. 213 {{FOOT NOTE}} by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court.
23. ' I wish to lay special emphasis on the word 'decree' occurring in this section. It is only the decree against which an appeal lies notwith-standing any decision arrived at in the judgment unless of course the judgment has itself the force of a decree.
24. ' The decree is defined in section 2, subsection (2) as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The forms of the decrees which are expected to be prepared in different suits are given in Appendix D of the C. P. C."
25. ' The appeal was dismissed being incompetent.
26. ' In Suleman Khan v. Abdur Rehman etc. (1), it was held that the appeal -filed by Abdur Rehrnan could not be treated as cross-objection in appeal filed by Suleman and since it was not accompanied by the copies of decree-sheet and the judgment of the lower Court, as required by Order XLI, rule 1, C. P. C. It was not a valid appeal.
27. ' In Messrs Yasin Sons Ltd. Multan v. The WAP DA and others (2), it was held that the memorandum of appeal would be defective in absence of copy of judgment and decree. However, the production of the copy of the judgment might be dispensed within suitable cases only when an application for supply of copy Thereof is moved and when there is still time to move the application (within the prescribed period of limitation).
28. In this case, both the documents i,e, the copy of the judgment and the copy of the decree appealed against were not appended with the memorandum of appeal. The learned Judge (Justice Zaki-ud-Din Pal) observed in para. 3 at p. 940 :- ' In the present case copy of the judgment as well as decree was never appended with the memorandum Of appeal. It was averred in the application filed alongwith the appeal that since the said copies had not been supplied by the copying agency, therefore, they would be filed as soon as they are made available, while as a matter of fact no such application for supply of the said copies had made on the date when the appeal as well as the application was filed. As mentioned above, application for supply of the said copies was made after 3i months of-filing of the appeal and it is obvious that by the time when the application was filed limitation period bad elapsed.
29. According to law certified copy of the decree has to be appended alongwith memorandum of appeal. If an application is made for supply of such copy and the same is not made available within time as prescribed by law for filing appeal then appeal can be filed even thereafter on the supply of such copy and the period spent in obtaining the copy of the decree would be accounted for while computing the period of limitation. If application has been made for supply of copy of judgment and the same has not been made available at the time of presentation of appeal then the same can be filed even in its absence seeking dispensation of the same on the ground that the same has not been {{FOOT NOTE}}
(1) P L p I"9 J K 31 (2) P L P 1977 Lail. 937 {{FOOT NOTE}} supplied so far by the copying agency. It does not, however, mean that memorandum of appeal can be filed in the absence of the judgment and decree having not been even applied for.
30. Production of copy of judgment by the appellate Court can be dispensed with only in case application for supply of copy thereof has been made or there is yet time to make application therefor. This view gains strength from Nur Din v. Secretary of State AIR 1927 Lah. 49, Girdhari La! v.
31. Rattan Chand AIR 1936 Lah. 293 ; Sh. Abdullah v. Behari Lal and others AIR 1926 Lab. 638 ; and Chetanlal Purshottam Singh Daoo v. Dau G. S. Gupta and others AIR 1938 Nag.
233. It has been found in all these cases referred to above that omission to attach copy of the decree is fatal to appeal and omission to attach copy of the judgment which Court has not dispensed with makes the appeal incompetent."
32. ' In Mst. Khurshid Bibi and another v. Ahmad and 2 others (1), the same view prevailed. Paras. 6 and 14 are reproduced below :- "Elaborating his contentions regarding the first objection as to the competence of the appeal before the lower appellate Court, the learned counsel submitted that when the appeal before the learned Additional District Judge was filed, the objection was raised about the non-filing of the Copy of decree-sheet and despite undertaking given by the counsel for the respondent, the decree-sheet was not provided. He submitted that it is mandatory for a party to file copy of the impugned decree with the appeal. In the absence of such a copy, he submitted the appeal was incompetent, and the provisions of Order XLI, rule 1, C. P. C. In this behalf leave no manner of doubt.
33. Reliance was placed by the learned counsel in support of this contention on Reasat All Khan v.
34. Mahuz Ali Klizm and others AIR 1929 Lah. 771, Hakam Beg and others v. Rahim Shah and others AIR 1927 Lab. 912 and Sana Ullah and others v. Ghulam Qadir and others PLD 1958 Pesh.
35. 213.
(14) Having given anxious consideration to the controversy involved, I am inclined to agree with the contentions raised on behalf of the appellants. The non-filing of a certified copy of the decree- sheet alongwith the appeal filed before the lower appellate Court especially even after the objection had been raised by the office and the counsel for the respondents (appellants in the lower appellate Court) had undertaken to file the same manifestly established the contumacious neglect to comply with the mandatory provisions of Order XLI, rule 1, C. P. C. There is no lack of authority on the point that an appeal under section 96, C. P. C. Is only competent when accompanied by a certified copy of the impugned decree. Reference may be made in this regard to the authorities cited on behalf of the. Appellants. It may be pertinently pointed out here that the case cited by the learned counsel for the respondents is not applicable to the facts of this case inasmuch as the said case related to an appeal filed against an order rejecting the plaint, which order by the deeming clause section 2(2), C. P. C. Has been included in the definition of a decree.
36. The principle laid therein was that filing of decree in appeal from order rejecting plaint is not a sine qua nan. The appeal before the lower appellate Court iu view of the above discussion was clearly incompetent."
37. ' In Imam Gul v. Mst. Begum Ji (2), the Supreme Court of Azad Jammu and Kashmir held that an appeal filed without a copy of decree an with {{FOOT NOTE}}
(1) PLD 1979 Lab. 846 I (2) 1980 CLC 530 {{FOOT NOTE}} copy of judgment alone cannot be deemed to have been validly presented and is liable to be rejected if copy of decree is not filed within period of limitation. This ruling applies on all fours and, therefore, I would like to reproduce para. 4 "(2) There is no cavil about the principle that under section 96 of the C. P. C. a party adversely affected by a decree has vested rightly of an appeal. In other words an appeal 'lies only from a decree and not from a finding in judgment, except when the judgment itself has the force of a decree". An application to an appellate Court for setting aside of reversing a decision of a subordinate Court is an appeal within the ordinary, connotation of a term. An irregular or incompetent ,appeal is nonetheless' an appeal for the purpose of limitation. However, an appeal to be regular and competent must conform to the provisions of Order XLI, rule 1, C. P. C. Which reads
(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. 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.
(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative ; and such grounds shall be numbered consecutively.
38. ' The High Court, under section 122, C. F. C., however, has power to annul, alter or add to the rule made in the Civil Procedure Code but to our knowledge no such alteration, addition or amendment has so far been made in Order XLI, rule 1 by the High Court of Azad Jammu and Kashmir. In this case, 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."
39. ' In Mohammad Shall v. Mst. Jamila Bibi and others (1), it was held that under Order XLI, rule 1, C. P. C.
40. As applicable in Azad Kashmir the memorandum of second appeal, before the High Court must be accompanied by three documents, namely, copies of the judgment and decree appealed from and unless the appellate Court dispenses with, copy of the judgment of the Court of first instance.
41. ' In Muhammad Anwar etc. v. Mst. Soma (2), the memorandum for appeal was not accompanied by copy of decree appealed against. Hearing of such appeal was held to be without any legal sanction. The relevant observations are found in para. 4 at p. 1480 :- "There is lot of force in the argument of the learned counsel. Upon the language of Order XLI, rule 1, C. P. C. The learned lower appellate Court could not dispense with the filing of the copy of the decree. - As is borne out from the judgment, under revision, the learned Additional District Judge was also not unaware of this legal position. The reason advanced by him for entertaining the appeal, without {{FOOT NOTE}}
(I) 1980 CLC 1130 1981 CLC 1479 {{FOOT NOTE}} copy of the decree, runs counter to the provision s of Order XLI, rule 1, C. P. C. He, thus, fell in error in holding th t the appeal was maintainable. Be that as it may, hearing of the ape I by the learned Additional District Judge without annexation of the opy of the decree, with the memorandum of appeal was without any legal sanction. He could have allowed time to the respondent to get the decree-sheet prepared and move the learned trial Court in the matter. Anyhow, since the memorandum of appeal was not accompanied by a copy of the decree, it cannot be deemed to have been properly instituted.
42. ' In this case the decree was not drawn up. Hearing of such appeal was held to be without any legal sanction. There may be exceptions to this general rule e.g. :- (1)Where a plaint has been rejected under Order VII, rule 11, and no decree-sheet is required ; (2)Where a suit is dismissed in default ; (3)There may be such more instances.
43. ' The case will be different when a decree is obviously a nullity and can be ignored altogether as laid down in PLD 1964 SC 97 and 1984 CLC 309.
12. The omission to file a certified copy of the order of the lower Court with memorandum of appeal is npt fatal as held in PLD 1961 Lah. 366 and PLD 1965 Kar. 367 as it may be dispensed with by the appellate Court or the omission may be condoned by the Court. But the omission to file a certified copy of the decree appealed against is fatal to the appeal.
13. But this rule is subject to certain exceptions :-
(1) There may be appeals against certain orders which do not necessitate the preparation of a decree e.g. The order of rejection of a plaint such a rejection is a decree under section 2(2) of C. P.
44. C. But the appeal against such an order does not need a copy of a decree-sheet under circumstances.
(ii) There may be an appeal against a decree which was not drawn up or prepared by the Court against whose judgment the appeal is preferred. In certain cases, the Lahore High Court held that such an appeal was also incompetent while in other cases it was held that a party should not suffer owing to the mistake or delay of the office in drawing up the decree and that the appellant should not be given an opportunity to produce a copy of it when obtained. The Supreme Court of India held in the case of Jagat Dlish v. Jawahar La! (1) (affirming AIR 1960 Pun. 247) that it is imperative that a copy of the decree should be filed with the appeal and that as the appellant is entitled to deduction of the time taken up in obtaining a copy of the decree where he has applied for it but has not been furnished with it because it was not drawn up, the appeal filed without it is not competent and that the order to be passed on such an appeal must depend on the facts of each case. If a copy of a decree is filed after the expiration of the period of limitation prescribed for the appeal, the appeal is time-barred and that is so because there is no valid appeal until a copy of the decree is filed. Paras. 9, 13, 14 and 15 of that judgment are reproduced below "(9) ......... Where a decree is not drawn up immediately or soon after a judgment is pronounced, two types of cases may arise. A litigant {{FOOT NOTE}}
(1) AIR 1961 SC 832 {{FOOT NOTE}} feeling aggrieved by the decision may apply for the certified copy of the judgment and decree before the decree is drawn up, or he may apply for the said decree after it is drawn up. In the former case, where the litigant, has done all that he could- and has made a proper application for obtaining the necessary copies, the time requisite, for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. In other words, the time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree.
(13) Then it was argued that the respondents should have moved the trial Court for the drawing up of a decree as soon as they found that no decree had been drawn up. It may be assumed that the respondents might have adopted this course ; but where the dual system does not exist it would be idle to contend that it is a part of the duty of a litigant to remind the Court or its office about its obligation to draw up a decree after the judgment is pronounced in any suit. It may be that decrees when drawn up are shown to the lawyers of the parties ; but essentially drawing up of the decree is the function of the Court and its office, and it would be unreasonable to penalise a party for the default of the office by suggesting that it was necessary that the party should have moved the Court for the drawing up of the decree. Therefore, we are not satisfied that the appellant is justified in attributing to the respondents any default for which the penalty of dismissing their appeal can be legitimately imposed on them. The result is that the appeal preferred by the respondents on December 23, 1959, is proper and it can now be dealt with in accordance with law.
45. It is true that in the circumstances over which the respondents had no control the appeal it has already been admitted under Order XLI, rule 11 and as a result of the decision under appeal it may not have to go through that process again. Dulat, J. Who heard the appeal for admission was satisfied that it deserved to be admitted and we do not think it necessary to require that the present appeal should go through the formality of the procedure prescribed by Order XLI, rule 11, once again. This position is no doubt unusal, but in the circumstances of the case it is impossible to say that the order passed by the High Court is not fair and just.
(14) Let us then consider the technical point raised by the appellant challenging the validity or the property of the order under appeal. The argument is that Order XLI, rule I, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of Order XLI with regard to the filing of the decree being of a mandatory character. It would be difficult to accede to the proposition thus advanced in a broad and general form. If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court ; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained. In the case like the present, if the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction tab the appellant should produce the certified copy of the decree as soon as it is, supplied to him. In such a case it would be open to the High Court, and we apprehend it would be its duty, to direct the subordinate Court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and no application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate Court should return the appeal to the appellant a defective, and when the decree is filed by him the question of limitation may be examined on the merits. It is obvious that the complications in the present case have arisen as a result of two factors; the failure of the trial Court to draw up the decree as required by the Code, and the failure of the office in the High Court to notice the defect and to take appropriate action at the initial stage before, the appeal was placed for admission under Order XLI, rule 11. It would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order XLI, rule 1. Appropriate orders will have-to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. Therefore, in our opinion, the appellant is not justified in challenging the propriety or the validity of the order passed by the High Court because in the circumstances to which we have already adverted the said order is obviously fair and just. The High Court realised that it would be very unfair to penalise the party for the mistake committed by the trial Court and its own office, and so it has given time to the respondents to apply for a certified copy of the decree and then proceed with the appeal.
(15) In this connection our attention has been drawn to the fact that in the Punjab High Court two conflicting and inconsistent views appear to have been taken in its reported decisions. Dealing with appeals filed without a certified copy of the decree some decisions have dismissed the appeals as defective, and have given effect to the mandatory words in Order XLI, rule 1, without presumably examining the question as to whether the failure of the trial Court to draw up the decree would have any bearing or relevance on the point or not (Vide : Gela Ram v. Ganga Ram I L R 1 Lab. 223 ; AIR 1920 Lab. 395 ; Municipal Committee, Chiniot v. Bashi Ram AIR 1922 Lab. 170 ; Mubarak All Shah v.
46. Secretary of State AIR 1925 Lah. 438 ; Nur Din v. Secretary of State A 1 R 1927 Lab. 49 ; Hakam Beg v.
47. Rahim Shalt AIR 1927 Lab. 912 ; Fazal Karim v. Des Raj 35 Pun. L R 471 and Ban ware Lal v. Amrit Sagar A I R1949 E P 400, On the other hand it has in some cases been held that it would be fair and just that the hearing of the appeal should be adjourned to ehable the appellant to obtain a certified copy of the decree and produce it before the appellate Court Vide : Manoharlal v. Nanak Chdnd A 1 R 1919 Lab. 53 ; Mt. Jeewni v. Mt. Misri A 1 R 1919 Lab. 125(2) and Sher Muhammad v. Muhammad Khan AIR 1924 Lah.
352. It would obviously have been better if this conflict of judicial opinion in the reported decisions of the High Court bad been resolved by a Full Bench of the said High Court but that does not appear to have been thane so far. However, as we have indicated, the question about the competence of the appeal has to be judged in each case on its own facts and appropriate orders must be passed at the initial stage soon after the appeal is presented in the appellate Court. If any disputed question of limitation arises it may have to go before the Court for judicial decision."
48. ' In Karim Dad v. Arif Ali and another (1), no decree was passed or prepared and the matter was still before the learned Civil Judge at the stage of scrutiny of court-fees, stamps or other formalities.
49. The learned Judge Karam Elahi Chauhan observed :- "It is well-settled that if there is no decree or so long as a decree has not been prepared, an appeal is not competent."
50. ' The two cases:-
(i) 1982 CLC 550, where the appellant had applied well in time for the copy of decree it was held that the appellant could not be penalised for the fault of somebody else and (ii) PLD 1983 Fesh. 215, in which the case was remanded by Fakhr-e-Alam, J. Are very much relevant and lay, down that if a copy of decree is not drawn up if applied for well in time, the appellant should not be penalized.
51. All these authorities are to be seen and read alongwith AIR 1961 SC 832.
52. But in the ease before me the appellant was negligent in obtaining the copy of the decree appealed against. His case is different and his counsel c does not contend that he applied for the copy of the decree of the District Judge, Muzaffarabad well in time and that it was not drawn up or not supplied to him.
14. Now I propose to deal with the case of All Haider Shah v. Ghulam Hussain (2), wherein para. 6 read :- "6. We have given our considered thought to the arguments advanced at the bar.-. It is practically settled law that under Order XLI, rule 1, C. P. C., the appeal filed in the High Court must also necessarily be accompanied by the copy of the judgment of the Court of first instance, if the discretion is not exercised in dispensing with such a copy."
53. ' The question before the learned Judge of our Supreme Court was whether' under Order XLI, rule 1, C, P. C., the appeal filed in the High Court must necessarily be accompanied by the copy of the judgment of the Court of first instance and whether it can be dispensed with. Here in the case before me, the question is whether a copy of the decree of the District Judge can be dispensed with in the appeal before the =High Court. {{FOOT NOTE}}
(1) PLD 1978 Lab. 679 (2) 1981 CLC 359 {{FOOT NOTE}} ' No doubt an extract from AIR 1930 Rang. 235 appearing at page 361 is reproduced in that judgment in italics which is given below :- "Before an appeal is admitted, it is the duty of the Court to see that all the papers that should be filed have been filed before the Court. Where an appeal is filed without a copy of the decree and the Court instead of bringing the omission to the notice of appellant admits the appeal, is cannot subsequently dismiss the appeal on the ground that it had not been filed in time and the appellant should not suffer for the fault of the Court in not discovering his mistake in time."
54. ' But the old Rangoon case is not binding upon me when I find that it is the settled law that the copy of a decree must be produced with the memorandum of appeal. The authority of Rangoon referred to above is a solitary authority and the learned Judge of our Supreme Court did not discuss and approve it in clear and unambiguous words because the case before the Lordship was regarding the incompetency of an appeal without filing the copy of judgment of the Court of the first instance and not the copy of the decree-sheet appealed against. The case of Ali Haider Shah is distinguishable as that note appended by the Reader on 5-10-1977 showed that the appeal in that case was not accompanied by the copy of the judgment of the trial Court. At that time, 28 days were still to go towards, limitation for filing the appeal while in the case before me no time of limitation was left at all. Therefore, this case does not help the learned counsel for the appellant.
55. Let me also point out that in the case of Sauar Muhammad and 6 others v. Chief Conservator of Forests Azad J & K Government and 3 others (1), Raja Muhammad Khurshid Khan, J. (now the Chief Justice of A J & K Supreme Court) has observed that a judicial pronouncement primarily apply to the facts of that case and it cannot be said that such law attains authenticity for every case of that nature. I reproduce the relevant observation from para. 24 at page 54 :- ............ The judicial decision primarily applies to facts on which it is given. Such observation, generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other cases, it is likely that it may result in miscarriage of justice. A case in fact, is an authority applicable to the facts of a particular case and not for any general purpose, that may seem to follow logical from it. Obviously it would not be safe to rely on general proposition of law decided in any individual case to form foundation for general principle because the observation in a judgment separated from the context would not support the isolated data in another case. It would consequently be misleading to apply the inference drawn from certain facts and circumstances to other cases based' on different facts and circumstances. In view of this state of law, the law laid down in a case, generally only applies to the facts of that case it cannot be said that such a law attains authenticity for every case of the nature."
56. After giving my best consideration to the preliminary objection and in the light of the authorities mentioned earlier. I hold that this appeal is not corn, patent without the copy of the decree of the District Judge which was passed E and prepared on 15.5-1983. The appeal was drafted on 6-7-1983 and filed in the High Court on 13-8-1983 on the last day of the period of limitation, {{FOOT NOTE}}
(1) PLD 1980 SC (A J & K) 46 {{FOOT NOTE}} ' The appellant slept over the matter for a pretty long time and never bothered to file copy of the decree sheet alongwith and even after the presentation of the appeal before the High Court. Even no verbal request was made before me or an application moved by the learned counsel for the appellant to the effect that he would bring a copy of the said decree-sheet. 1 am afraid, I cannot put a premium to his carelessness, contumacious neglect and failure to append the copy of the decree-sheet with the memorandum of appeal. Let me make it clear that the right of appeal is creature of a statute. In all suits of all nature triable by the Courts,- under section 9 of the C. P. C., such right is created by section 96 of the same Code. I wish to lay special emphasis on the word "decree" occurring in section 96 and say that it is only the decree against which an appeal lies notwithstanding any decision arrived at in the P judgment unless of course the judgment has itself the force of a decree. Hence a copy of the decree must be attached, with the memorandum of appeal provided, is drawn up and applied for within the period of limitation fixed for appeal or a case of condonation of delay is made out some reasonable cause: .
16. However, as I am bound even by the obiter dicta of our Supreme Court, I feel advised not to dismiss this case on the preliminary objection alone. Now I propose to deal with the three points raised by the learned counsel for the appellant.
57. ' The learned counsel for the appellant has referred to Order XLI and rule 16, C. P. C. Which reads :- ".Right to begin.-(l) On the day fixed, or on any other day to which the bearing may be adjourned, the appellant shall be heard in support of the appeal.
(2) Dismissal of appeal for appellant's default.-The Court shall then, if it does not dismiss the appeal at once, bear the respondent against the appeal, and in such case the appellant shall be entitled to reply."
58. ' He contends that no hearing was given to him as provided by law. Order XLI, r. 16, C. P. C., no doubt lays down that appellant shall be heard in support of the appeal on the day fixed or on any other day to which the bearing may be adjourned. On the perusal of the record, I find that the appeal before the learned District Judge was preferred on 6-1-1981 and the case was fixed for augment's on 14 5-19, when both the parties were present. If the learned counsel, who conduct the case before the learned District Judge, failed to appear and argue his case, the law does not require that the case should be prolonged especially then there is a young lady on the other side. The learned District Judge has very rightly decided an old case and did not allow the litigation to be protected. I have gone through the judgment of the learned District Judge and found it well-reasoned as the points raised by the appellant in his appeal have been dealt with and adjudicated upon. It is, therefore, incorrect to ski that the appellant was not given a reasonable opportunity of being beard. It was the dirty of the learned counsel for the appellant to argue the case or make a reasonable cause for his non-appearance but I do not find any such application on the file.
59. ' The other two points deal with facts and appreciation of evidence to some extent. The complaint of the learned counsel for the appellant is that some witnesses produced by his client have not been relied upon.
60. ' I have gone through the evidence led by the parties and do not find any misreading or non- reading of evidence in this Me.
17. Let me point out that we have got concurrent findings of fact of both the lower Courts, in this case.
61. It is the settled law the concurrent findings of fact reached by lower Courts cannot be disturbed by High Court in second appeal unless erroneous and not supported by evidence on record. In some authorities it is laid down that such concurrent findings of fact cannot be disturbed even if they are erroneous unless there is misreading or non-reading of evidence, or a patent defect in procedure.
62. ' In Muhammad Ibrahim v. Muhammad Shovel and others (1), Raja Muhammad Khurshid Khan, J.
63. (nn,w the Chief Justice of A J & K S observed at page (304) :- "The trial Court as well as the first appellate Court gave concurrent finding that the land stood partitioned and for that account fell in possession of the appellant. Could this concurrent finding of fact legally be disturbed in second appeal. The legal position in our view does not admit of any doubt that a concurrent finding of fact reached by the lower Courts cannot be disturbed by the High Court in second appeal even if it disagrees with the finding on its own view and even if Courts may appear to be grossly erroneous unless as laid down in subsection (c) of section 100, C. P. C., the error or defect discovered is of a substantial character occasioning an error or defect in the decision of the case upon its merits. A finding on a question of fact is only open to attack as erroneous if this is not supported in evidence but where there is evidence to consider the decision of the Courts it is final even though the Court might not on the materials have come to the same conclusion if it had the power to substitute its own judgment. In the instant case, the finding of the Court of instance as well as the first appellate Court is based on convincing evidence and in our view, the High Court fell in error to disturb the concurrent finding of fact. To the same effect is PLD 1969 SC 617 and PLD 1937 &C (Ind.) 188.
64. ' In Sakhi Muhammad v. Sawar and 11 others (2), the same learned Judge observed in para. 7 at page 308 "Ordinarily concurrent finding of fact cannot be re-opened by the High Court unless the finding is perverse for its being based on misreading or non-reading of the evidence or on some other grounds akin, to non-reading or misreading of the evidence. Here in this case the revenue record (documents P. A., P. B. And P. C.) as held by the learned Judge in the High Court, proves that Kamoo was the owner of the land sold to Sawar and the plea of Sakhi Muhammad tbat the land in suit was not sold by Kamoo is unfounded especially when Kathoo himself admits to have sold the land to Sewer vendee-respondent. It admits of no doubt that as held in Sree Meenakshi Mills Ltd., Madura v.
65. Commissioner of Income-tax, Madras PLD 1957 SC (India) 1118 a finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence, or if it is unreasonable and perverse, but that where there is evidence to consider the decision of the Tribunal is final even though the Court might not, on the materials, have come to the same conclusion if it had the power to substitute its own judgment."
66. ' The same view prevailed in Saleh Muhammad Khan v. Hassan Muhammad {{FOOT NOTE}} (1)1990 CLC 296 (2) 1980 CLC 1625 {{FOOT NOTE}} ' Khan (1), in which discussing the earlier authorities : PLD 1955 FC 38 ; PLD 1954 Lah. 447 ; PLD 1965 SC 134 and 1970 SCMR 510, the Division Bench of the Supreme Court of Azad Jammu and Kahsmir allowed appeal and held that no circumstances were available with the learned Judge in the High Court to disturb the findings of fact arrived at by the subordinate Courts.
67. ' In Meeran Baksh and another v. Shaukut Hussain (2) at p. 47, Noor Akbar Khan v. Abdul Aziz Khan
(3) at p. 116, Abdul Latif v. Fazed Ellahi (4), Muhammad Rafique v. Mst. Surta Bi (5) and Sree Meenakshi Mills Ltd., Madurahi v Commissioner of Income-tax, Madras (6) were referred to and relied upon. Khadim Hussain and others v. Lal and others (7) ; Abdul Rehntan and others v. Fateh and others (8); Muhammad Ishaq Khan and others v. Khan Bahadur Khan and others (9) and Sarwa Begum v. All Muhammad and others (10) the same view was confirmed and followed.
68. ' Under these circumstances, I dismiss this appeal with costs. {{FOOT NOTE}}
(1) 1981 CLC 353 (2)PLD1981SC(AJ&K)45
(3) PLD 1981 SC (A J& K) 115 (4) 1981 CLC 36
(5) 1981 CLC 208 (6) PLD 1957 SC 188
(7) P D 1981 Azad J & K 25 (8) PLD 1981 Azad J & K 42
(9) PLD 1981 Azad .1 & K 61 (10) PLD 1981 SC(AJ & K) 1 {{FOOT NOTE}}