' By an agreement of sale, dated 11-10-1971, the petitioner agreed to sell to the respondent an open plot of land bearing No. A-70, Block 'Q' measuring about 200 sq. yds. situated in North Nazimabad, Karachi for a consideration of Rs.11,000. Rs. 2,500 was paid at the time of the agreement and the balance of Rs.8,500 was agreed to be paid to the vendor at the time of registration of the sale- deed. Para-3 of the agreement provided that the vendor should obtain an Income-tax Clearance Certificate ai also secure registration of the lease-deed of the plot in his favour. The, vendee was required to complete the sale within one month from the date of the registration of lease-deed. In the event of failure, the vendee was liable to forfeit Rs.500 as penalty and to get refund of the balance of the earnest money. As the sale-deed could not be executed, the dispute arose between the parties. The respondent filed a suit being Suit No. 1203/1975 in the Court of XXII Civil Judge IInd Class, Karachi, praying for specific performance of the contract. The petitioner filed a written statement raising a plea that the lease-deed in respect of the plot was executed in his favour on 1- 11-1972 and lie had verbally intimated this fact to the respondent. According to the petitioner, the respondent failed to show his interest, therefore, the petitioner by a letter, dated 20-1-1973 repudiated the contract and returned the sum of Rs.2,500, which he had received at the time of the agreement. This repudiation was, however, contested by the respondent by her letter, dated 26-1- 1973 and the cheque of Rs.2,500 was also returned by the respondent to the petitioner.
2. On the pleadings of the parties eight issues were framed, but the main issues were Issues Nos. 4 & 5 which are to the following effect:- "(4) Was the defendant on or before 20-1-1973, ready and willing to perform his part of the contract of sale, dated 11-10-1971?
(a) Had he obtained the Income-tax Clearance Certificate etc. and produced the same to the plaintiff?
(b) Had he obtained the registration of lease deed and notified this fact to the plaintiff?
5 Who was in breach of contract of sale on 20-1-1973?"
' The learned trial Court decided Issues Nos. 4 and 5 against the plaintiff and dismissed the suit. The controversy before the learned Judge was whether the appellant/defendant had informed the respondent/plaintiff of his having obtained the lease of the plot and Income-tax Clearance Certificate as alleged by him or he had right away served the notice of rescision of contract as alleged by the plaintiff/respondent. The learned Judge seems to have taken a view that the written intimation was not necessary. On the other hand it was held that it was obligatory on the plaintiff to pursue the matter with the defendant. The relevant discussion in the judgment is as follows:- "There is word against word on record. Though burden of proof is on plaintiff and she has failed.
Even if it is taken for granted that defendant did not inform the plaintiff's husband then too, neither any witness has been examined nor any document produced to show that plaintiff approached defendant in this context. It was the defendant who first broke the deadlock and repudiated the contract, plaintiff sent letter and notified consequent to that. I do not find vigilance on part of plaintiff hence she cannot blame defendant for being negligent. Mr. Fasihuddin in this context has not even mentioned a single date or day as to when he approached defendant. Mere statements that he approached defendant does not suffice. Plaintiff had to prove that she did her best. Under these circumstances I cannot accept the word of plaintiff. Hence I decide issue in the affirmative."
3. These findings of the learned trial Judge were challenged by the plaintiff/respondent in Civil Appeal No. 2/1978. This appeal, which was heard and disposed of by 1st Addl. District Judge, Karachi, was accepted and the findings of the trial Judge were reversed. This is how the learned 1st Appellate Court disposed of Issue No. 4:- "It is an admitted position that sale-deed was to be registered within one month of the registration of lease-deed and procurement of income-tax which means that respondent was duty bound to send written intimation of having done so to the appellant but he disowns this responsibility which does not support his stand. For the first time, he disclosed it in his notice of cancellation, dated 20- 1-1973 that he registered lease on 1-11-1972. If he had the honest intention he should not have waited so long after 1-11-1972 and that too to cancel the agreement. This oral assertion of informing the appellant is not supported by any other evidence or his conduct after oral refusal of appellant.
The appellant reached promptly to the notice of cancellation as is clear from her letters Exh. 1-H and 1-J. On the basis of this evidence I have no hesitation to reach conclusion that respondent had no intention to honour the agreement and that he suppressed the availability of the documents procured by him and within his knowledge and control."
4. In my opinion, the view taken by the 1st Appellate Court is unassailable. It was the seller/petitioner, who was enjoined with the duty of proving the Income-tax Certificate and the registration of the lease-deed as condition precedent to the execution of the sale-deed. It was he, who had this information whether and when he had obtained the certificate and secured registration of the plot in his favour. The burden is on him to show that having fulfilled these requirements he had informed the purchaser that he was in a position to execute the sale-deed.
There is nothing to show that the petitioner discharged this obligation and ever called upon the plaintiff/purchaser to take the documents. On the other hand the petitioner straightaway sent a notice on 1-11-1972 rescinding the contract.
5. Faced with this situation, the learned counsel for the petitioner has raised a technical objection.
His contention is that the appeal filed by the respondent before the 1st Appellate Count was hit by provisions of Order XLI, rule 1, C.P.C. inasmuch as copy of the decree was not appended to the memo of appeal. In order to appreciate this argument mention of certain dates would be necessary. The judgment dismissing the suit was announced on 22-12-1977. An application for copies of judgment and decree was moved by the respondent the same day. Another application for supply of a copy of the judgment urgently was moved on 27-12-1977. Copy of the judgment was supplied on 1-1-1978. The appeal was filed on 2-1-1978. The judgment accompanied the memo of appeal. The office seems to have raised an objection regarding the non-supply of copy of decree- sheet. But as the decree was not yet ready, the appeal was entertained without copy of the decree-sheet. Before the appeal was fixed for hearing, the petitioner moved an application under Order XLI, rule 1 read with section 151, C.P.C. praying that the appeal be dismissed on account of the failure of the appellant for non-compliance of provisions of Order XLI rule 1, C.P.C. inasmuch as a copy of the decree was not filed with the memo of appeal. To this application objections were filed by the respondent and it was averred that the respondent had applied for a copy, of the judgment and decree on 22-12-1978 and on urgent motion a copy of the judgment was supplied to him, but as the decree was not prepared till then, it was not filed alongwith the memo of appeal. That there was no negligence on the part of the respondent/appellant in not filing the decree. It was prayed that the delay in furnishing the decree-sheet may be condoned. In addition to the objections on the application under Order XLI, rule 1, the respondent also moved an application under sections 5 and 12 of the Limitation Act with a supporting affidavit of Mr. Fasihuddin, husband of the respondent. In this affidavit it was averred on behalf of the respondent that application for copy of the judgment and decree was moved on 22-12-1977, that the copying agency estimated the cost of the judgment and decree which were paid by the respondent. It was further averred that a copy of the judgment was supplied and as the decree was not yet drawn up it was not supplied by the office. That the respondent made several attempts to obtain a copy of the decree but was told that the decree was not ready. This affidavit offers detailed explanation for non-supply of the decree alongwith the memo of appeal. It appears that on perusal of this affidavit the learned 1st Appellate Court was satisfied with the explanation offered. As a matter of fact, learned counsel for the respondent has categorically urged that this objection was never pressed before the learned 1st Addl. District Judge and there is no discussion in the judgment regarding this controversy. This, according to the learned counsel for the respondent, is indicative of the fact that the applicant had abandoned this objection. In support of his contention, the learned counsel for the respondent has relied on two cases reported in 1984 SCMR 262 and 1984 SCMR 1234, in which the observations are that if a point has not been discussed in the judgment, it may be presumed that it was not urged before the Court and/or was abandoned by the party concerned.
6. Assuming for the sake of argument that the point was raised or half-heartedly pressed, the question remains whether mere failure to furnish a copy of the decree sheet with the memo of appeal would be fatal to the maintainability of the appeal even if the decree is filed at a later stage.
' The learned counsel for the respondent has contended that the provisions of Order XLI, rule 1, C.P.C. are not mandatory. The contention of the learned counsel is that had it been a mandatory requirement, the rule should have provided for the penal consequences of non-compliance of the rule. As there is no such provision in the rule, the rule is merely directive. The learned counsel equates this rule with the amended Order XLIII, rule 3 in which there is a provision of service of a notice of filing of the appeal. The learned counsel relies on the case of Mrs. Dino Manekji Chinoy and others v. Muhammad Malin reported in PLD 1983 SC 693. The Supreme Court was dealing with a case in which no such notice was given by the appellant. But at the time of the hearing of the appeal the respondents happened to, be present and before any order could be passed they had full opportunity of arguing the appeal. It was observed by Dr. Naseem Hasan Shah, J. as follows:- "19. in the instant case, we observe that the learned Division Bench had issued a pre-admission notice to Advocate of the respondent (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present on pre-admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in limine. No grievance furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal had not been supplied to him or that he was otherwise taken by surprise. Thus, in this case, all the objects for which rule 3 was inserted in Order XLIII of the C.P.C. were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilised as 'stepping stones' rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact been complied with."
'There is no doubt, the observations made in the case of Dino Manekji Chinoy provide a guideline for all such situations where trappings of practice and procedure seek to fatally hurt the substantive rights of the parties and sometimes result in causing grave injustice for minor procedural lapses committed by parties or even their counsels or clerks. This becomes further painful when overlooking or rectifying the procedural mistake committed by a party does not even cause any injustice or prejudice to the adversary. Such is the situation in this case. Respondents inability or failure to file the decree sheet alongwith the memo of appeal may have offended the rule. But has it caused any prejudice to the appellant; was the decree-sheet an indispensible document in this appeal; could the judgment not suffice for purposes of appreciating the intricacies of the dispute or rights of the parties without reference to the decree-sheet? There is no such assertion. All that is urged is that every thing that has happened should be set aside because the rule was not followed with all its rigour and regidity. Fortunately, I am not called upon to say more on this approach brought to hear by the learned counsel in this case because in the present case the rule was substantially complied with. Enough to say that on 9-1-1978, the entire file of the case, including the original decree sheet was summoned to the appellate Court and had become a part of the record alongwith the memo of appeal. The appeal, even if it is deemed to have been filed on 9-1-1978, would not run out of limitation.
' Now reverting to the controversy whether the filing of the certified copy of the decree on 2-1-1978 would result in automatic dismissal of the appeal. The learned counsel for the petitioner has relied on the case of Mst. Khurshid Bibi and another v. Ahmad and 2 others PLD 1979 Lah.
846. I am afraid the observations made in this case would not be relevant for the purpose of this revision. In that case inspite of objections raised by the respondent, the copy of the decree was not furnished- by the appellant and it was held as follows:- "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 lised 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 provision 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."
'In the present case the decree has been filed and it was before the Court when the case matured and was heard by the Court. The explanation for not filing the decree was offered and there is no element of contumacious negligence as was found in that case.
7. Another case cited by the learned counsel for the petitioner is 'Government of West Pakistan and others v. Niaz Mohammad PLD 1967 SC 271. The discussion in this case shows that their Lordships were considering the question of limitation for filing an appeal and it was held that the time for filing the appeal should run from the date of the decree. It is not on the interpretation of Order XLI, rule 1, C.P.C. and as such is not relevant for the purposes of the present case.
8. In reply to the above contention, the learned counsel for the respondent has relied on PLD 1969 Dacca 82. This case is very close to the facts of the present case and after reviewing a chain of case law the following observations were made:- "Although it is a preliminary requirement I cannot hold that filing of a decree in an appeal from an order rejecting a plaint is sine qua non. The appeal however was heard and the both parties appeared before the appellate Court. If the appellate Court could not entertain the appeal for want of the copy of the decree, the appellate Court was acting without jurisdiction but the parties having submitted to the said jurisdiction it will not be open for them to challenge the said fact in second appeal.
Mr. Rehman says that he did point out the fact of the absence of the decree to the appellate Court.
But it appears the appellate Court took no notice of the fact. The defect could have been remedied if the appellate Court had so directed as the order of the appellate Court was passed on 19th July 1967 when the decree had already been prepared by the trial Court."
' Another case cited at the Bar is from Supreme Court of India AIR 1961 SC 832. In this case an appeal was filed and was entertained by the Registry on appellants statement to the effect that the judgment and Memo of Costs annexed with the memo of appeal should be treated as sufficient compliance of rule 1 of Order XLI, C.P.C. It was also stated that the decree was not yet drawn up by the trial Court and thus it was not possible for the appellant to file the decree with the memo of appeal. The appeal was put up in Court and was admitted to regular hearing. Record was summoned from the trial Court before the decree was drawn up. When the appeal matured for hearing the respondent raised this preliminary objection and prayed for dismissal of the appeal.
The appellate Court after hearing the parties on the preliminary objection declined to dismiss the appeal and instead allowed one month's time to the appellant "for the purpose of getting a decree drawn up in the proper form by the lower Court and obtaining a copy thereof". The record was consequently sent back to the trial Court to enable it to draw up the decree. The respondent challenged the validity of this order by filing an appeal against it to the Supreme Court. There is rich discussion on Order XLI, rule 1, C.P.C. in the judgment of Gajendragadkar J. The Court held the view that "there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent. That, however, cannot finally dispose of the point raised by the appellant before us". After narrating facts of the case in details, the discussion was summed up in the following paras of the judgment:- "(14) Let us then consider the technical point raised by the appellant challenging the validity or the propriety of the order under appeal. The argument is that Order XLI, rule 1 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 that 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 an 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 as 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: Gele Ram v. Ganga Ram I L R 1 Lah. 223; AIR 1920 Lah. 395; Municipal Committee, Chiniot v. Bashi Ram AIR 1922 Lah. 170, Mubarak Ali Shah v.
Secretary of State AIR 1925 Lah. 438; Nur Din v. Secretary of State AIR 1927 Lah. 49; Hakam Beg v.
Rahim Shah AIR 1927 Lah. 912; Fazal Karim v. Des Raj 35 Pun L R 471 and Banwari Lal v. Amrit Sagar AIR 1949 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 enable the appellant to obtain a certified copy of the decree and produce it before the appellate Court (vide: Manoharlal v. Nanak Chand AIR 1919 Lah. 53; Mt. Jeewni v. Mt. Misri AIR 1919 Lah. 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 had been resolved by a Full Bench of the said High Court but that does not appear to have been done 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."
9. The learned counsel for the appellant wanted to argue that the date of filing the decree should be treated to be date of filing the appeal. On these premises, according to counsel, the appeal should be held to be time barred. I am afraid this argument is not sound because' factually the appeal has not only been registered but was put up in Court for hearing and was admitted to regular hearing without any objection. The record was summoned from the lower Court and had reached the appellate Court on 9-1-1978. It included a properly drawn D up and signed decree. As a matter of fact the delay in filing a certified copy occurred because the copying branch of the trial Court could not prepare the copy as the file had been summoned by the appellate Court after the appeal had been admitted. The contention has no merit and is, therefore, rejected.
10. The upshot of the whole discussion is that in this case there has been a substantial compliance of Order XLI, rule 1, C.P.C. Although no decree-sheet was filed alongwith the memo of appeal, the same was furnished with a little delay subsequently and was very much before the Court at the time of hearing of the appeal. The reason advanced for not filing the decree-sheet alongwith the memo of appeal is that the decree was not drawn up and was not signed at the time when the copy of the judgment was supplied to the appellant on his urgent motion application, dated 27-12- 1977. The appeal was heard and admitted to regular hearing. The record was summoned and was received by the appellate Court on 9-1-1978 with a properly drawn and duly signed decree.
11. It is doubtful whether, in spite of the fact that the original decree-sheet was already a part of the record, it was still necessary for the appellant to obtain and file a separate certified copy of the original decree. But even this has been done.
' The result is that this revision should be dismissed with costs.