1. ' Second appeal is by the vendee-defendant in the pre-emption suit which was instituted by Mst.
2. Khurshid Bibi plaintiff-respondent to pre-empt sale of 92 kanals, 17 marlas of land by her mother Mst. Shukran, and, brother Gul Muhammad on 16-11-1972. Pre-emption suit was decreed by the trial Court on 15-9-1975, conditional upon paying Rs,3,470 as sale price of the land by the pre-emptor to the vendee within five days of the decree, failing which the suit shall be deemed to have been dismissed. The appeal was dismissed on 26-7-1977 and the decree of the trial Court maintained by the learned Additional District Judge, Bahawalnagar. Against the decree passed in appeal, vendee preferred second appeal to this Court on 22-9-1977. Memorandum of appeal aiongwith two applications-C.M.No. 3854-C/1977, C.M.No. 3855-C/1977 were placed before a learned Single Judge of this Court on 24-9-1977 who admitted the appeal, directed stay of execution of the impugned decree subject to notice and furnishing of security but passed no order on C.M. 3855-C of 1977 which contained a request for exempting the filing of certified copy of the judgment of the trial Court and prayed that "Revision petition (it should be appeal) may graciously be accepted without certified copy of the judgment of the Civil Judge dated 15-9-1975". It may be observed that a typed copy of the judgment of the trial Court was appended with the memorandum of appeal.
3. Surprisingly, though the learned Bench had not passed any order on C.M.No. 3855-C of 1977, yet the office issued notice in this C.M. Alongwith C.M.No. 3854-C of 1977 for a particular date but strangely enough did not fix the C.M. Before the Bench for an order on it. This is not all. On 30-4-1980, Sheikh Hakim Ali, Advocate who by then had been engaged as an Advocate in the appeal filed a separate petition (C.M.No. 424/C/1980/BWP) for condonation of delay and taking of certified copies of the judgment and decree of the trial Court on file. Though the office gave this C.M. a separate number yet again it did not put it up before the Bench. Learned counsel also did not care to have it placed before the Bench and heard. Yesterday, when the appeal came up before me, Sheikh Hakim Ali, Advocate himself pointed out the defect and absence of an express order on the request for exemption to file certified copy of the trial Court's judgment. Upon search of the Court file, C.M.No. 424-C/1980/BWP was not found traceable on record. Upon further inquiry, an Assistant of the Civil Branch at Bahawalpur Bench located the C.M. In the Office and produced it in Court which thereupon was placed On the file of this Court. The omission of an express order on the petition seeking exemption for production of certified copy of the judgment of the trial Court had added a new dimension to the controversy in appeal qua its effect on its competence and maintainability.
4. ' On merits, Sheikh Hakim Ali, learned counsel for the appellant urged three points:-(1) Upon admitted relationship, right of the appellant was at par with the respondent who, therefore, possessed no preference against him; (2) Respondent had waived pre-emption and was estopped to sue for pre-emption; and (3) In the event of the right of the appellant being at par with the respondent in regard to the share of the land sold by Mst. Shukran, since the sale in question was joint and indivisible, appellant could not succeed even partially.
5. ' Malik Manzoor Ahmad Bhara, Advocate, learned counsel for respondent supported the judgments impugned in appeal. Further, it was argued that failing to file certified copy of the judgment of the trial Court was fatal to further continuance and maintainability of appeal and the delay, in this behalf ought not to be condoned.
6. ' Having heard the learned counsel at quite some length and seen the original records, the appeal has merit to succeed, though partially. I shall advert to the contentions in their seriatim. There are two vendors of the land sought to be pre-empted. They are Mst. Shukran and her son Gul Muhammad. Mst. Shukran owned six shares whereas Gul Muhammad held fourteen shares, in the land old by them. Mst. Khurshid Bibi is daughter of Mst. Shukran and sister of Gul Muhammad.
7. Muhammad Amin vendee is brother of Mst. Shukran and maternal-uncle of Gul Muhammad. As regards sale of land by Mst. Shukran vendee's right is at par with the pre-emptor because in order of succession, both shall succeed simultaneously and neither shall exclude the other. On this score, the pre-emptor had no preference over the vendee. As regards the share of land sold by Gul Muhammad vendee as his distant kindred could not successfully compete with the pre-emptor who stood at a higher level in the order of priority because in the event of notional death of the vendor, she would exclude the vendee from inheriting his estate. To this extent, her preference was clear and unambiguous and even the learned counsel for respondent entered no caveat on it. To sum up on respective preferences, the appellant enjoyed parity in regard to the sale by Mst.
8. Shukran, and, was clearly of inferior status with regard to the sale by Gul Muhammad. Therefore, the appellant had good case on merits to partially succeed to the extent of land sold by Mst.
9. Shukran. This naturally brings me to another limb of the argument about indivisibility of the sale and its possible adverse effects on the right of the pre-emptor in the pre-emption suit. Upon close scrutiny of the argument, I think it has no real merits in it. Vendors held distinct and defined shares in the land sold by them. Merely that they chose to join together to sell their shares in the land by a single deed against payment of lump sum price is insufficient to deprive the pre-emptor of her right to pre-empt part of the transaction to which her right extended. To that extent appellant could not save his sale on the argument that the sale was joint and indivisible. That argument could be applied to a case of more than one vendee. Here the case is reverse. As for waiver or estoppel, there is no writing to support them. Evidence to establish an offer and its refusal was neither convincing nor sufficient. Courts below examined the evidence but preferred to disbelieve it. Essentially, finding on question of waiver being an agreed finding on a question of fact is not susceptible to a further review for a third time in this Court on a plea of its fallacious appreciation which the appellant had failed to point out and I have also been unable to discover any. Upon correct reading of the record, it could not be successfully said that the Courts below either misread it or not considered it properly. Merely that a concurrently concluded finding on a question of fact is not liked by the appellant is hardly a ground for upsetting it. True, that the learned Judge below did not refer to each and every item of evidence for holding waiver not proved but that shall not be sufficient for observing that he had not considered the evidence. Oral statement of few interested persons could not be taken as sufficient material to strip off the pre-emptor of her valuable right, which undoubtedly the right of pre-emption is. In my opinion, therefore, the appellant did not effectively discharge the burden of proof that lay upon him to establish estoppel or waiver and the evidence led by him in this behalf was both meagre and unreliable. I shall, therefore, agree with the Courts below on this point.
10. ' Having dealt with the question of inter se preferences and the plea of waiver/estoppel, I shall now attend to the effect of an absence of order for dispensing with the filing of certified copy of the judgment of the trial Court and its possible legal effect on the appeal. Circumstances leading to absence of an express order on the applications submitted for seeking exemption from filing certified copy of the judgment of the trial Court have already been partly numerated in the preceding paragraph. The question that immediately comes to the fore, would be whether the Court in admitting the appeal for its hearing on merits shall be presumed or deemed to have dispensed with the filing of certified copy of the judgment of the trial Court. Order 42 rule 2 C.P.C.
11. Added by the Lahore High Court requires that in addition to a certified copy of the judgment and decree of the Appellate Court, second appeal shall be accompanied by a certified copy of the judgment of the Court of first instance also but the added rule gave power to the Court to dispense with its filing. Ordinarily, when the required copies are not filed with the memorandum of appeal within the requisite period of limitation, the appeal is liable to rejection as suffering from want of a valid presentation. However, the Court entertaining the appeal is authorized to either expressly or impliedly condone the omission and dispense with the filing of certified copy of the judgment of the trial Court. As for the decree, the Court has no power to dispense with it. There is no doubt that unless filing of the certified copy of the judgment of the trial Court is dispensed with expressly or empliedly, the omission will render the presentation of the memorandum of appeal invalid.
12. Ordinarily, the power to dispense with the judgment should be exercised at the first hearing for leaving none in lurch but the omission to dispense with the judgment expressly at that stage is no bar for the Court to presume implied dispensing with the filing of that document. In reported cases that course has been taken by the Courts. In G.I.P. Railway Co. v. Radhakisan Jaikisan and another AIR 1926 Nagpur 57, the defect about the non-filing of the certified copy of the judgment was taken to be a matter between the Court and the appellant. In that reported case, the memorandum of appeal had stated that the copy of the judgment would be given afterwards and since the appeal was admitted and notice of it was issued to the respondent, the Court was taken to have dispensed with the copy of the judgment. Similar views were expressed in Sarat Chandra Nag v.
13. Rali Kanta Polley and others AIR 1939 Calcutta 711, Brojendra Lal Saha and others v. Jana Mondal and others AIR 1947 Calcutta 67 C.N.
20. In Ali Haider Shah v. Ghulam Muhammad 1981 CLC 359 (SC Azad J&K) relying on a case reported as Maung Po Hlaing v. Ma Phee and others AIR 1930 Rang. 235 the Supreme Court of Azad J&K found in almost identical circumstances that the filing of the copy of the judgment of the trial Court with the memorandum of appeal was impliedly dispensed with. In para 8 of the report, the Supreme Court said that "had the Court made the appellant aware of the defect in the appeal for want of a copy of the judgment of the trial Court it could well, as said earlier, be rectified in time as the period for filing the appeal still subsisted. The defect was brought to the notice of the Judge by the Reader and it may be presumed that the learned Judge well aware of this defect proceeded to issue the process and thereby impliedly dispensed with the copy of the judgment. The defect in the appeal though originated from the appellant's side could be removed if the Court had been cautious enough to bring it to the notice of the appellant. How the appellant can be allowed to suffer for the fault of the Court. In the circumstances of this case it may be said that the Court had contributed towards the negligence, for which the appellant cannot be allowed to suffer." Above view was reiterated by the same Court in Swar Khan and 2 others v. Noor Alam and another 1985 CLC 1082 (SC Azad J&K). In the available circumstances I am also inclined to take that view, to prevent the appellant from suffering by an act or omission of the Court, which ought not to cause prejudice to a litigant. It is transparent from the record that neither the office nor the respondent pointed out the defect in the form of appeal though number of intermediate orders were passed meanwhile. Everyone including the Court felt satisfied and complacent till the appeal came up for final hearing yesterday. Had the office whose duty it was to check the appeal noted the omission and pointed out the defect, it could have been soon remedied. There was no plausible explanation to observe the long silence for screening the defect. Though, no reference to the omission for filing of the certified copy of the judgment of the trial Court was available in the memorandum of appeal yet it was accompanied by a petition for that purpose and the same was supported by an affidavit also. Attested typed copy of the judgment of the trial Court was filed with the memorandum of appeal. Original record from the trial Court presumably in pursuance to the requirement of Order 41, rule 13, C.P.C. Was also available in Court.
14. ' In the above circumstances, absence of an order on the applications seeking dispensing with the judgment of the trial Court must not be fatal to the maintainability of the second appeal. Rather, it favoured implied dispensing with the judgment of the trial Court. That view shall be conducive to advancement of the cause of justice also for it shall clearly assist giving every one his right due.
15. Further, it would wholly unfair to knock out the appellant on a defect in form of the appeal only.
16. Therefore, even if there is some infirmity in holding the view that the Court shall be deemed to have dispensed with the judgment of the trial Court, I am inclined to condone the default and the delay both in filing of the certified copy of the judgment of the trial Court. No other point was urged.
17. ' In view of the foregoing discussion, second appeal succeeds partially. Impugned judgments and decrees are modified and pre-emption suit is decreed in favour of the respondent to the extent of land (14 shares) sold by Gul Muhammad on payment of Rs,2,429 as its proportionate sale price which if the respondent has not already deposited shall deposit in Court within a month from today. If the amount already deposited in Court is in excess of the decretal amount, it shall be refunded to the appellant. In case, decretal amount is not deposited within the specified period, pre-emption suit shall be deemed to have been dismissed with costs. As for the costs of this second appeal in this Court, parties shall bear them as incurred.
18. Records be returned.