' Facts giving rise to this civil revision are that respondent No, 1, Syed Mushtaq Ahmad, brought a suit, against the petitioner, Manzoor Ahmad and respondent No, 2, Lahore Municipal Corporation, through its Mayor, for a permanent injunction restraining the petitioner and respondent No, 2 from demolishing a part of the house of respondent No, 1 which was being used as a garage. Alongwith the suit, respondent No, 1, hereinafter referred to as the respondent, filed an application for grant of temporary injunction to the above effect. While refusing the temporary injunction, the Civil Judge, who was seized of the suit, rejected the plaint also, under Order VII, rule 11 of the Code of Civil Procedure. The respondent went in appeal before an Additional District Judge who accepted the appeal and remanded the suit to the trial Court for fresh decision. Feeling aggrieved by the order of remand, the petitioner has come up in revision to this Court.
2. It was contended by learned counsel for the petitioner that the appeal was not properly constituted inasmuch as it was not accompanied by certified copies of the judgment and decree passed by the learned trial Court. In reply, it was submitted by learned counsel for the respondent that since it was a case of rejection of plaint, the respondent was not obliged to file copy of the decree. As for certified copy of the judgment, passsed by the learned trial Court, his plea was that filing of the same was dispensed with by the learned appellate Court while admitting the appeal to a regular hearing. It was submitted by him that when the appeal was placed before the learned Additional District Judge for the first time, it was represented by him that although he had applied for copy of the judgment yet the same had not been supplied to him. Argument proceeds that appreciating this difficulty of the respondent, learned appellate Court did not wait for a minute in admitting the appeal to regular hearing and also granting ad interim stay order. In support of the proposition that the filing of certified copy of judgment had thus been impliedly dispensed with by the learned appellate Court, learned counsel for the respondent placed reliance on Ali Haider Shah v. Ghulam Muhammad 1981 CLC 359 and Maung Po Hlaing v. Ma Phee and others AIR 1930 Rangoon 235. He relied on Zahid Bashir v. Mst. Mumtaz Begum 1985 M LD 933, to support his plea that certified copy of the decree was not required to be filed before the learned appellate Court while assailing the rejection of plaint.
3. In reply, it was argued by learned counsel for the respondent that it was necessary for the petitioner to file certified copies of the judgment and decree alongwith the memorandum of appeal and as this was not done by him neither the appeal could proceed nor the impugned order could be passed therein. He did not cite any authority for the proposition that even in a case of rejection of plaint, it was necessary to append certified copy of the decree alongwith the memorandum of appeal.
4. In this case plaint was rejected on 4th October, 1980 and the appeal was presented on 7th October, 1980. Copy of the judgment was applied for on 4th October, 1980 but it was actually delivered to the petitioner on 15th January, 1981. When the appeal was filed in the office on 7th October, 1980, it was pointed out by the office that the memorandum of appeal was not accompanied by certified copy of the decree. It is not known whether the official who recorded note in the matter had then in mind the copy of the judgment or that of decree. On 7th October, 1980, the appeal was placed before the learned Additional District Judge who passed the following order:- "Stated that certified copy has not been made available as yet and it will be made available on 17- 10-1980. Further stated that the property of the appellant is going to be demolished by respondent No, 2 on the application of respondent No, 1; that the property was actually evacuee and as such no map could be produced in the Court below but the learned lower Court could not appreciate this fact.
' Admitted for hearing. Notice and record for 19-10-1980. Status quo till then."
5. It was frankly conceded by learned counsel for the respondents that no application for dispensing with the filing of certified copy of the judgment was made by him. According to him, what he had submitted before the learned Additional District Judge, regarding non-availability of the certified copy, virtually amounted to verbal request for dispensation which was impliedly allowed by him by admitting the appeal to a regular hearing and also by granting the ad interim relief. In the case of Ali Haider Shah, cited by learned counsel for the respondent, which was a second appeal before the High Court of Azad Jammu and Kashmir, process was issued by the High Court before copy of the judgment was filed. In view of this development, it was held by the Supreme Court of Azad Jammu and Kashmir that while issuing the process, the High Court had dispensed with the requirement of filing certified copy of the judgment. In case of Maung Po Hlaing, which was also relied upon by learned counsel for the petitioner, it was observed that where an appeal is filed without a copy of the decree and the Court admits the appeal, it cannot subsequently dismiss the appeal on the ground that it had not been filed in time, and that the appellant should not suffer for fault of the Court. As stated above, no case laying down a different law was cited by learned counsel for the petitioner. I, therefore, agree with learned counsel for the respondent that while admitting the appeal to a regular hearing and granting ad interim relief also the learned Additional District Judge had impliedly A dispensed with the requirement of filing certified copy of judgment alongwith the memorandum of appeal.
6. As for certified copy of the decree, the case of Zahid Bashir, relied upon by learned counsel for the respondent, is very clear on the point that in a case of rejection of plaint, it is not necessary to file certified copy of the decree alongwith B the memorandum of appeal directed against such rejection. This view is based on Feroz Shah v. Kalu Ram and another AIR 1936 Peshawar 155 referred to in the case of Zahid Bashir. Since no authority to the contrary has been relied upon by learned counsel for the petitioner, I, with respect, follow the view taken in the cases of Zahid Bashir and Feroz Shah and hold that the respondent was not obliged to file certified copy of decree alongwith the memorandum of appeal.
7. In view of the above discussion, I am unable to agree with learned counsel for the petitioner that the appeal was not properly constituted and as such the impugned order could not be passed therein. This civil revision, accordingly, fails and is dismissed with no order as to costs.