1. This Civil Revision application is directed against the judgment dated 20--84987 passed by the District Judge (West) Karachi, dismissing the appeal filed by the applicant against the judgment and decree dated 27-7-1987 passed by the IIIrd Senior Civil Judge (West) Karachi, dismissing the suit filed by the applicant.
2. The facts leading to the filing of the above revision are that the applicant filed suit for possession and mesne profits totalling Rs. 21,800 against the respondent. It is alleged in the plaint, that the applicant is allottee of plot of land bearing No. 84/4 (No. SJ-94) measuring 120 Sq., yards situated in Baldia Town, Karachi allotted by K.DA. Vide Survey Slip No. Book 253, Serial No. 73 dated 26-10- 1951, presently valuing about As. 15,000. The case as set out in the plaint is that the respondent is a trespasser having illegal possession of the above plot since October, 1980, and he is prosecuted in the Criminal Court. It is alleged that the respondent is a trespasser being in unlawful possession of the said plot and is liable to vacate and hand over peaceful possession thereof to the applicant.
3. The respondent is liable to pay mesne profits at Rs. 200 per month. The applicant prayed for possession and mesne profits. The respondent resisted the suit. The trial Court framed as many as five issues in this case but ultimately decided issues 1, 2 and 4 against the applicant and came to the conclusion from oral and documentary evidence adduced in the suit that respondent is not a trespasser as regards the applicant. As such he is not liable for dispossession. The applicant went in appeal before the District Judge. The appeal was dismissed. The applicant being aggrieved filed the present revision.
4. I have heard Mr. Muzzammil Siddiqui, Advocate for the applicant and Mr. Sh. Ejaz Ahmed, Advocate for the respondent.
5. It is not in dispute that the judgment was pronounced on 27-7-1986. It is also not in dispute that the first appeal was presented on 6-11-1986. The applicant applied for certified copy of judgment on 31- 7-1986. The copy was delivered on 13-8-1986. The applicant filed First Appeal being No. 131 of 1986 on 2-7-1988. This First Appeal was dismissed on 4-9-1986 as the same was not accompanied with certified copy of decree and the learned counsel refused to file certified copy of decree. The applicant again applied for certified copy on 7-9-1986. The certified copy of decree was delivered to him on 6-10-1986. -It is pertinent to note that the decree was ready on 23-7-1986, stamps were supplied on 6-10-1986. Certified copy was delivered on 6-10-1986. The Memo. Of appeal was filed on 6--11-1986. The appeal was filed without certified copy of judgment and decree. The certified copies of judgment and decree were filed on 19-11-1986.
6. The learned District Judge found that the appeal was presented on 102nd day of the decree and copies of judgment and decree were filed on 19-11---1986, i.e., 115th day of the decree. The learned District Judge held that the appeal was barred by 14 days and the applicant has not explained the delay.
7. The learned counsel for the applicant contended that on the facts and circumstances of the case the learned appellate Court ought to have condoned the delay. The grounds for condonation mentioned in the affidavit of Khalil-ur---Rahman attorney of the applicant before the first appellate Court are that the application for certified copy was filed on 7-9-1986 and the cost wag estimated on 25-5-1986 which was deposited on the same date. He made several attempts to find out as to whether the certified copy was ready and ultimately on 6-10-1986 he learnt that the copy was made ready on 30-9-1986. Stamps were supplied on 6-10-1986 and obtained the copy on the same day and filed the appeal on 6-11--1986. It is asserted that the delay caused was not intentional or deliberate but due to the circumstances beyond his control. The objection was raised that certified copy of judgment and decree were not annexed to the Memo of Appeal. The certified copy of judgment and decree were supplied on 19-11-1986.
8. It is, however, significant to notice that in the affidavit just mentioned it is not stated as to why the Memo of Appeal was filed on 6-11-1986 and as to why the certified copies of judgment and decree were not annexed to Memo of appeal. It is also not mentioned as to why the counsel or his clerk could not file the certified copy before the first appellate Court on 6-11-1986 when it had been obtained particularly when certified copy was still available with the counsel as to why it was not possible to file it soon thereafter. It is also not mentioned as to why it was not possible to file the Memo of Appeal within time. The application and the affidavit are conveniently vague on these material aspects. The appellate Court in the impugned judgment has not believed the reasons given in application and found them to be not satisfactory and it, therefore, declined to condone the delay.
9. The condonation of delay was essentially a matter in the discretion of the appellate Court.
10. I have given my earnest consideration to the submissions made by the learned counsel for the parties and I am of the opinion that the impugned order is correct and cannot be interfered with.
11. The provisions of Order 41, Rule 1(1) of the Code of Civil Procedure are imperative and it is essential that the memorandum of appeal should be accompanied by a copy of the decree appealed B from. If a copy of decree appealed from is not filed with the memorandum of appeal, the appeal is, defective, incomplete and cannot be treated as validly presented. I am fortified in this view by a , decision of the Supreme Court in Government of West Pakistan v. Niaz Muhammad (PLD 1967 SC 271) wherein their Lordships held that Order XLI, Rule 1 renders it possible for an: appellate Court to dispense with the copy of judgment, but not of the copy of the decree, for the due presentation of a Memorandum of appeal. In the present case there was no default on the part of the trial Court or its office and the decree appears to have been drawn up before 6-10-1986 on which date a copy of the same was supplied to the applicant.
12. Bearing in mind the provisions of Order 41, Rule 1, of the Code of Civil C Procedure I am clearly of the opinion that the appeal presented by the applicant before the first appellate Court on 6-11-1986 was defective and incomplete.
13. The next question for consideration is whether the extension of time for filing a copy of decree appealed from can be granted under section 5 of Limitation Act and if so, whether sufficient reasons for exercise of discretion in favour of the applicant has been made out in the present case.
14. The appeal before the appellate Court appears to have been presented by Mr. Dilawar Hussain. He should have been aware that a copy of decree has to accompany the memorandum of appeal. He has not given any cogent explanation for delay, in filing the appeal and omission to file a copy of the decree alongwith the memorandum of appeal or its non production within the period of limitation prescribed for filing an appeal. In the circumstances, the delay cannot be excused. The first appellate Court was, therefore, right in dismissing the appeal as time---barred.
15. The condonation of delay was essentially a matter in the discretion of the first appellate Court. It was justified in not placing reliance on the facts mentioned in the affidavit in support of the application and I do not find any legal infirmity in the exercise of discretion by the first appellate Court refusing to condone the delay.
16. This revision; therefore, fails and is hereby dismissed but in the circumstances of the. Case without any order as to costs.