' This revision petition is directed against the judgment and decree dated 27-2-1990 whereby Ch. Muhammad Nawaz, Additional District Judge, Lahore, dismissed the petitioner's appeal against the order, dated 14-2-1989 by which Mr. Zawar Ahmad, Civil Judge, Lahore had decreed the suit of respondent No,1 against him and respondent No,2.
2. Briefly, the relevant facts which gave rise to the present revision petition are that on 18-10-1981 Muhammad Shafi respondent No,1 instituted a suit against Allah Ditta petitioner and Muhammad Siddique respondent No,2 for the possession of Quarter No,125-8/B-1 situate in Township Scheme, Lahore on the basis of title. The suit was contested and on the pleadings of the parties as many as nine issues were framed. The parties led their evidence on the said issues and the learned trial Judge after considering the said evidence decreed the suit against the petitioner and respondent No,2 vide judgment and decree, dated 14-2-1989. Feeling aggrieved the petitioner instituted an appeal against "the order, dated 14-2-1989". The said appeal was admitted to regular hearing and notice was issued to the respondents. On 27-2-1990 the learned lower appellate Court dismissed the appeal by means of the following judgment: "This is an appeal against the order, dated 14-2-1989,. Passed by Mr. Zawar Ahmad, Civil Judge, Lahore, whereby the Ld. Civil Judge, decreed the suit filed by the respondent No,1 against appellant and respondent No,2.
' Under section 96 of C.P.C. Appellant was required to file appeal against the decree, dated 14-2- 1989 but instead of that appeal has been preferred against the order. Certified copy of judgment and decree has also not been appended with the memorandum of appeal, decree has also not been challenged, therefore, instant appeal is dismissed as being not maintainable. There is no order as to costs."
3. Feeling dissatisfied, the petitioner has called in question the- validity of the impugned judgments and decrees of the Courts below, through the present revision petition.
4. I have heard the parties' counsel and have also gone through the record.
5. Perusal of the record of the lower appellate Court reveals and it is admitted by the petitioner that his appeal before the learned Additional District Judge was directed against the "order, dated 14-2- 1989" and that only an unattested copy of the impugned judgment of the trial Court was appended with the said appeal. No copy, certified or uncertified, of the impugned decree was ever filed. It is also established from the record and not denied by the petitioner that he had applied for the certified copies of the impugned judgment and decree of the trial Court on 21-2-1989, that the copies were prepared and ready for delivery on 26-2-1989, but he had actually obtained the said copies on 14-3-1990 i,e, after the dismissal of his appeal. (The said copies were placed on the record of the present revision petition during arguments). It is also an admitted fact that the petitioner had not moved any application before the learned Additional District Judge for the dispensation of the said copies or the grant of time to file such copies. Keeping in view this background of the case, I now proceed to examine the contentions raised by the learned counsel for the petitioner to urge that the impugned judgment/decision of the learned Additional District Judge was not sustainable in law.
6. Learned counsel has assailed the judgment of the learned lower appellate Court by contending that instead of throwing out the petitioner's appeal on the basis of a mere technicality the learned Additional District Judge should have decided the same on merits by dispensing with the copy of the decree or should have granted time to enable him to file the said certified copy, for it is now an established principle of law that, so far as possible, technicalities should not be allowed to defeat substantial justice. Learned counsel further contended that in fact the appeal was directed against the judgment and decree, dated 14-2-1989 but due to inadvertence the word decree had been omitted from the memorandum of appeal and as the omission was the result of a 'bona fide typographical mistake' the petitioner should have been allowed to amend the said memorandum.
He urged that the appeal be remanded to the learned lower appellate Court for decision on merits.
7. Learned counsel for respondent No,1, who was also heard at the preadmission stage, vehemently opposed the admission of the revision to regular hearing and controverted the pleas raised by the opposite counsel.
8. As already pointed out the petitioner's appeal before the learned Additional District Judge was directed against the order, dated 14-2-1989 only. A simple question which requires determination is as to whether the omission on the part of the petitioner to mention in the memorandum of appeal that the appeal was actually directed against the decree was the result of inadvertence and thus a bona fide mistake or it was a case of carelessness and negligence bordering on mala fides. A bare reading of the memorandum of appeal would show that the petitioner was fully conscious of the fact that a decree had been passed against him. Despite that nowhere in the said memorandum he brought the said decree under challenge. Not a word was uttered to question the validity of the said decree. On the contrary, the grounds enumerated in the appeal clearly show that the vires of the 'order, dated 14-2-1989' were being assailed and the petitioner was praying for setting aside the said order and not the decree. That is why he had appended with the appeal an uncertified copy of the order/judgment. The memorandum of appeal was drafted by a considerably senior Advocate who knew or was supposed to know the implications and repercussions of such omission and therefore, it is not difficult to say that appeal was prepared in a perfunctory and haphazard manner which clearly amounted to negligence. A negligent act has never been and should never be considered to be a bona fide act. Consequently I am constrained to hold that the omission in question is not a bona fide mistake and as the appeal was not directed against the decree passed by the trial Court, it was rightly dismissed, by the learned lower appellate Court as being not maintainable.
9. This brings us to the next question as to whether the learned lower Appellate Court could dispense with the copies of the impugned judgment and decree and whether the appeal could be dismissed on the ground of the non-filing of the certified copy of the decree appealed from.
Another question which would also require examination is as to whether, in the circumstances of the case, the petitioner was entitled to the grant of time to enable him to file the requisite copy of the decree and whether the delay in filing the requisite copy could be condoned. In this connection, perusal of rule 1 of Order XLI, C.P.C. Would be beneficial, which is reproduced as under: "1. Form of appeal. What to accompany memorandum.---(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 herewith) of the judgment on which it is founded.
Contents of memorandum.---(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection arguments or narrative; and such grounds shall be numbered consecutively."
10. Sub-rule (1) of rule 1 makes it unambiguously clear that it is obligatory for an appellant to append with the memorandum of appeal two documents i,e, copy of the decree appealed from and a copy of judgment on which the said decree is founded. It is also very clear from this provision of law that an appellate Court has the power to dispense with the copy of judgment but has no such power with regard to the copy of decree. This Court is of the consistent view that omission to file copy of decree is fatal and renders the appeal unentertainable and not maintainable.
Reference to a few decisions in this regard would be appropriate. In Noor Din v. Secretary of State AIR 1927 Lah. 49 their Lordships of a Division Bench of this Court have laid down that it is within the powers of an appellate Court to dispense with the copy of a judgment but not with a copy of decree. It was further laid down that an appeal filed without a copy of decree was liable to be dismissed. In Muhammad Anwar etc. v. Mst. Soma 1981 CLC 1479 Lah. It was held that the hearing of an appeal in which memorandum of appeal was not accompanied by a copy of decree, was without any legal sanction. In another decision by this Court in Muhammad Amin v. Muhammad Abdullah 1986 MLD 2717 it was held that omission to file copy of decree alongwith memorandum of appeal was fatal, irrespective of the fact that the appeal had been admitted to regular hearing.
This view was reiterated in Abdul Sattar and others v. Khuda-i-Dad (PLD 1986 Quetta 11). So, in view of these authorities it is held that the petitioner was bound under the law to append with the memorandum of his appeal copies of the impugned judgment and decree and his failure to file the copy of the decree rendered his appeal to be incompetent and unentertainable. It is further held that the appellate Court had no power to dispense with the copy of decree. The learned lower appellate Court, in the circumstances of the case, therefore, had the power to dismiss the appeal.
11. Rule 1 (1) of Order XLI, C.P.C. Also lays down that a proper appeal must be accompanied by a copy of the judgment on which the decree appealed from is founded. The appellate Court, however, is empowered to dispense with the said copy. Non-filing of the copy of judgment, unless dispensed with by the Court, would also be fatal and render the appeal incompetent. In the present case the petitioner had appended with the memorandum of appeal only an unattested copy of the impugned judgment. Admittedly, the appellate Court had not dispensed with the copy of judgment nor did the petitioner request for such dispensation. Such a copy is no copy in the eye of law. The word copy used in the rule means a certified copy. As such the petitioner had committed another violation of the rule and, therefore, his appeal was liable to be dismissed on this account also.
12. The next question which requires adjudication is as to whether, in the circumstances of the case, it was a fit case for condonation of delay and the petitioner was entitled to the grant of time to enable him to file the requisite copies of judgment and decree in question. In appropriate cases Courts have the powers to condone delay under section 5 of the Limitation Act, if the appellant succeeds in satisfying the Court that he had sufficient cause for not filing the requisite copies within the prescribed time of limitation. Perusal of the record reveals that the petitioner had not explained as to why the certified copy of the decree could not be appended with the memorandum of appeal. During arguments, however, the learned counsel for the petitioner maintained that the requisite copy could not be placed on record because of inadvertence and urged that delay should be condoned and the petitioner be afforded an opportunity to file on record the certified copies of the judgment and decree in question. In support of his contention he relied upon Basheer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892 and Haji Jahanzeb v. Khalid Khan and another PLD 1983 Pesh.
215. In both these cases delay in filing the requisite copies was condoned but the facts of both these cases are totally different from the facts of the present case and, therefore, in my humble opinion, they are not of much help to the petitioner. In the former case Mst. Shama Afroz respondent instituted a suit for specific performance of a contract against Basheer Ahmad Siddiqui petitioner which was dismissed by the trial Court on 22-12-1977. She lodged an appeal before the learned District Judge on 2-1-1978 against the judgment and decree of the trial Court without filing the copy of the decree, as it was not drawn up at that time. The appellate Court summoned the record, admitted the appeal to regular hearing and issued notice to the petitioner.
On 23-5-1978, after putting in appearance, the petitioner objected to the non-filing of the copy of decree and maintained that the appeal had become time-barred. The respondent pointed out that copy could not be supplied to her because the record had been sent to the appellate Court.
She applied for the copy of the decree in the said (appellate) Court, which was supplied to her. She filed the said copy in the appellate Court on 23-1-1978 with an application for condonation of delay.
The learned Additional District Judge, who was seized of the appeal, allowed the appeal on merits and without adverting to the question of limitation and without disposing of the applications moved by the parties. Petitioner's revision before the High Court was also dismissed. Before the Supreme Court objections which the petitioner had raised before the Courts below were reiterated but their Lordships of the Supreme Court in the circumstances of the case did not feel that it was necessary to determine the said questions of law raised by the learned counsel, as their Lordships did not consider it a fit case to determine the said questions. However, it was held that the respondent had a good case for condonation of delay. It would be seen that in the cited case the respondent (appellant) had applied for the supply of the copy of the decree which could not be supplied to her as the same at that time had not been drawn up by the trial Court and thereafter, the record was requisitioned by the appellate Court. In the present case the petitioner had applied for the copies of the impugned judgment and decree on 21-2-1989 and the same were prepared on 26-2-1989 and were ready for delivery but he did not care to take delivery of the said copies until 14-3-1990, long after the dismissal of his appeal. Further, the petitioner in the present case E had never applied before the lower appellate Court for the condonation of delay or for grant of time to file the requisite copies. The respondent in the cited case had acted in a diligent manner and could not be considered to be guilty of indolence but the same cannot be said about the present petitioner.
13. As regards the Peshawar case in view of the judicial pronouncements of this Court, most respectfully I am not inclined to follow it. I also feel that the facts of this case are not identical with the present case and, therefore, the conclusion drawn in the said case could not be applied to the facts of the present case. In the cited case the appellant had made an application for condonation of delay under section 5 of the Limitation Act which feature is conspicuously missing in the present case. Resultantly I am of the view that this is not a fit case for condonation of delay and the petitioner is not entitled to the grant of time for filing the requisite copies of the judgment and decree of the trial Court.
14. Omission to file copy of the decree under Order XLI, Rule 1, C.P.C. Is not breach of mere technicality. It is a breach of a mandatory provision of law which is fatal and, as consistently held by this Court, renders the appeal unentertainable and liable to be dismissed. Learned lower Court had rightly dismissed the petitioner's appeal and I have no plausible reason to interfere with the impugned judgment. The revision petition therefore, is dismissed in limine with costs.