' The second appeal is addressed against the order of the learned District Judge, Kotli, passed on June 27, 1987, whereby the appeal preferred against the order and decree of Sub-Judge, Kotli, passed on November 30, 1982, was dismissed.
2. Kala Khan brought a suit for possession in respect of land measuring 4 kanals 5 marlas out of 15 kanals 19 marlas, comprising survey number 236/48, situated in village Narali, Tehsil Kotli, against Faiz Muhammad and others, in the Court of Sub-Judge, Kotli. It was averred- that the plaintiff had purchased land measuring 19 kanals 15 marlas vide registered sale-deed executed on Jeth 14, 1994 Bk. Out of the land purchased by the plaintiff, the suit land remained in possession of the defendants on account of relationship. On demand of possession, the defendants repudiated the claim of the plaintiff, as such he felt constrained to bring action against them. The suit was instituted on February 4, 1971. The defendants resisted the suit, among others, on the ground of adverse possession as well. On April 19, 1980, Saida, Muhammad Iqbal, Rehmat Jan, Said Bi and Karamat Bi instituted a counter-suit for declaration on the basis of title in respect of land comprising survey numbers 115/1, 113, 118 and 119, situate in village Narali, against Kala and others. It was averred that the suit land was in the ownership and possession of the plaintiffs but during the recent settlement, by collusion, Kala defendant acquired entries of ownership in the settlement record in his favour, to the detriment of the plaintiffs. Kala resisted the suit by denying all the averments made by the plaintiffs. Both the suits were consolidated and disposed of together. The suit of Kala was decreed whereas the counter-suit was dismissed for want of proof. Saida and others went in appeal before the District Judge, wherein the decision of the Sub-Judge on both counts was assailed. The learned District Judge dismissed the appeal in respect of decree passed in the suit of Kala against Faiz Muhammad and others as the memorandum of appeal was unaccompanied by the decree sheet in the light of provisions of Order 41, Rule 1, Civil Procedure Code. On second count, the appeal was dismissed for want of sufficient evidence. These orders are assailed in the present appeal.
3. Mr. Aleem-ud-Din has raised a preliminary objection that the second appeal is not entertainable as the memorandum of first appeal was unaccompanied by copy of the decree passed by the trial Court. As the first appeal was not competent, the second appeal, obviously, was entertainable.
Malik Muhammad Yusuf, the learned Counsel for the appellants controverted the aforesaid objection. It was emphasised that both the suits were tried and disposed of together, as such a single copy of the decree was to be appended with the memorandum of appeal. The learned counsel made reference to AIR 1940 Pat. 176, AIR 1953 SC India 419, AIR 1927 Lah. 289, AIR 1922 Lah. 390, PLD 1986 AJ&K 73 and 1986 CLC (Lah.) 1033.
4. The immediate proposition inviting attention of the Court pertains to the effect of failure to append copy of the decree appealed against in the Court of District Judge. The proposition is to be resolved in the purview of Rule 1 of Order 41, Civil Procedure Code.
5. Rule 1 postulates that every appeal shall be preferred in the form of a memorandum signed bythe appellant or his pleader. Such memorandum shall be accompanied by a copy of the decree appealed from and copy of the judgment on which the decree is founded unless it is dispensed with by the appellate Court. The language used in the Rule reflects that this provision is mandatory.
However, the rule is not absolute as the Court is empowered to dispense with copy of the decree and judgment for sufficient cause.
6. It is imperative that on presentation of memorandum of appeal, the officer entrusted with receiving the memorandum is enjoined upon to ensure that the appeal was validly presented. On finding any defect at the time of presentation of the memorandum, it was desirable that such defect may be brought to the notice of the appellant so that it was removed in due course of time.
Once an appeal was admitted for regular hearing and notice was issued and subsequently it was discovered that the appeal was defective for being not accompanied by the decree-sheet, the proper and equitable course, firstly, was to allow the filing of copy of the decree-sheet. In presence of satisfactory explanation for omission to file copy of the decree, the Court could condone the delay on filing the copy thereafter. In an identical situation, the Supreme Court of India in Jagat Dhish Bhargava's case AIR 1961 SC 832, observed: "The requirement that certified copy of 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.
' No hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under 0.41, R.1. Appropriate orders will have to he 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. 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. 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 he open to the High Court, and 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."
' In Haji Jehanzab's case, PLD 1983 Peshawar 215, it was held: "Reverting to the facts of the case one finds that the office of the District Judge had been negligent in handling the appeal as it was found to be in order when checked on 2-2-1977 and later the same day heard in limine and admitted to regular hearing by the appellate Court too. The learned counsel for the petitioner is not far wrong to contend that had the office pointed out that the appeal was not accompanied by the copy of the decree sheet and returned it to the appellant, the error would have been rectified as there was still time available for filing of the appeal till 13-21977.
The requirement of Order XL!, rule 1, C.P.C. That certified copy of the decree is to he filed along with the memorandum of appeal is mandatory and in the absence of the decree the appeal would be incomplete, defective and incompetent, but then the most important step that is to be taken in case of defective presentation of the appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant he directed to remedy the defects. After the appeal has passed through the stage of admission through oversight of the office then the fair and rational course to adopt was to adjourn the hearing of the appeal with the direction that the appellant should produce the certified copy of the decree as soon as it is obtained. If it was not so done the litigant deserved to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. As the office of the District Judge was equally negligent in not pointing out that the appeal was defective being not accompanied by a decree sheet, with the result that it was admitted to regular hearing, the proper and equitable course for the District Judge was to have passed an order condoning the delay in filing the copy of the decree sheet and thereafter decided the appeal on merits."
' The other course open to the Court is that on finding the appeal defective for its being unaccompanied by a copy of the decree, it can dismiss the appeal on account of that defect. This view was expressed in Suleman Khan's case PLD 1959 AJ&K 31; Ali Zaman's case, PLD 1984 AJ&K 61 and Imam Gul's case, 1980 CLC (SC AJ&K) 530.
7. In present case, an explanation is advanced in the memorandum of appeal presented in this Court wherein it is stated that the appellants secured the copies of the separate decrees of the trial Court and delivered the same to their Counsel who unfortunately failed to append the same with the memorandum of appeal, as such the defect, if any, was not due to omission on the part of the appellants. The learned Counsel who represented the appellants before the District Judge, has died, as such an assurance in the form of an affidavit from him could not be secured. This explanation finds support from the record of the trial Court as in his application of December 6, 1982, the appellant applied for issue of copies of judgments and decrees passed in both the suits.
The copies are shown to have been issued to the clerk of the counsel. Thereafter, it is not known as to why the copy of the decree in the counter-suit was not appended with the memorandum of appeal. Be that as it may, the fact remains that the memorandum was unaccompanied by the copy of the decree passed in the second suit.
8. An important distinct aspect of the proposition is that suits instituted by both the parties are of quite different and independent character. The parties partly are the same in both the suits but the property is different. For, in the suit of Kala, the dispute pertains to land measuring 4 kanals 5 marlas out of 15 kanals 19 marlas; the suit land comprised survey number 236/48 whereas in the counter-suit, Saida and others alleged their claim in respect of land comprising survey numbers 115/1, 113, 118 and 119. These survey numbers were neither part of survey number 236/48 nor, in any manner, the claim of the plaintiffs in the counter-suit was identical with the counter-claim of Kala.
The suits, therefore, should not have been consolidated, rather decided independently. Thus, consolidation of the suits on February 24, 1981 and framing of additional issues in fact created a confusion vis-a-vis the respective rights of the parties. Such a state of confusion is supported by the fact that the memorandum of appeal before the District Judge was accompanied by the copy of the decree prepared in the suit of Saida and others against Kala and others and the judgment passed in the suit of Kala against Faiz Muhammad and others. Thus, the order of consolidation of suits, was the cause of the whole mischief.
9. Next, it is noticed that the learned District Judge misdirected himself by dismissing the appeal, as a whole, on both counts. Once it was satisfied that the memorandum of appeal was accompanied by a copy of the decree prepared in the case "Saida and others v. Kala and others", the learned District Judge should have decided the appeal to that extent on merits. This has not been done.
The order of the learned District Judge is, therefore, patently defective, as such unsustainable.
10. One of the objections raised against the order of the trial Court before District Judge was that the decree passed in the suit of Kala was defective. It was emphasised that Kala brought the suit for possession of land measuring 4 kanals 5 marlas out of 15 kanals 19 marlas. His claim was that out of the land purchased by him, land measuring 4 kanals 5 marlas remained in possession of the defendants. The evidence led by the parties discloses a different position. The sale-deed by virtue of which Kala acquired title in the suit land described that the area of survey number 48 was 49 kanals 19 marlas, out of which 15 kanals 19 marlas was purchased by Kala from Boota. On this premises, the learned Sub-Judge should have passed decree for joint possession and not for exclusvie possession. The learned district Judge over-ruled the objection as in his view this proposition could have been resovled by the executing Court. This is not correct. The fact of the matter is that the executing Court is to execute a decree strictly in accordance with the terms and conditions of the decree passed by a competent Court. Therefore, the decree being of exclusive possession was absolutely not executable. It was manifestly anincorrect decree.
11. The propositions listed above are to be resolved in exercise of revisional jurisdiction. For the first appeal being defective, this second appeal is also incompetent. In order to eliminate the effect of the mischief resulting in injustice, revisional jurisdiction vested in this Court is invokable in this case.
Therefore, in exercise of the powers of revision contemplated under section 115 of the Code of Civil Procedure read with section 35 of the Courts and Laws Code, 1949, both the orders are hereby set aside and the cases are remanded to the Court of Sub-Judge, Kotli for their separate trials and decision on merits.