1. ' This is a revision from the order of learned Additional District Judge at Bhakkar, holding that since the memorandum of appeal was not accompanied by certified copies of the decree appealed from, and, the judgment on which it was based, appeal was incompetent and dismissed it as such.
2. The point requiring decision in the revision petition would be whether his view is correct and with that I shall deal in the succeeding paragraphs.
3. ' By deed of sale registered on 9-12-1981, respondent Ahmad Bakhsh purchased 76 kanals, 17 marlas of land in Patti Balucha of mauza Bhadiani, in Tehsil Bhakkar for consideration of Rs,20,000.
4. On 25-10-1982, Tahir, his brother Allah Bakhsh alongwith Nazar Hussain Khan, as co-owners, owners of the estate, contiguous lands and no occupancy tenants claimed pre-emption in respect of the above sale and brought a pre-emption suit against the vendee respondent in the Civil Court at Bhakkar. Respondent mainly resisted the suit on the plea that 53 kanals, 1 marla of land purchased by him was comprised in his tenancy at the time of the impugned sale and to that extent his right ranked superior. The trial Court settled issues, recorded evidence and on 3-5-1984, decreed the pre-emption suit in favour of the petitioners to the extent of 23 kanals 16 marlas of land only subject to payment of specified amount in its decree and dismissed the claim in regard to the remaining land holding that in regard to it respondent's right was superior qua the petitioners.
5. ' Petitioners filed an appeal against the judgment and decree of the trial Court in the Court of learned District Judge at Bhakkar. Appeal was presented on 16-5-1984 through Syed Jahangir Alam Shah, Advocate of Bhakkar District and was marked by learned District Judge for 17-5-1984 for usual kaifiyat sarishta. On 17-5-1984, a Court official noted in vernacular in the margin that decree- sheet must bear two rupees court-fee stamp. Exact words written {{URDU TEXT}} ' Appeal alongwith the report of Sarishtadar was placed before the learned District Judge on 17-5- 1984. After noting the presence of petitioners with their counsel, record was ordered to be summoned for 4-6-1984 for a prelimina\ry hearing of the appeal. Notice on the petition for stay was directed to be issued for the date already noted and meanwhile operation of the decree was suspended. Upon receipt of records and service of respondent, the appeal was posted for hearing arguments on it and attending to a miscellaneous matter relating to appointment of a local commissioner. Till 24-3-1986, appeal remained on the file of learned District Judge but though initially it had been fixed for a preliminary hearing yet to this date, there was no formal order for admitting it to hearing. Nonetheless, the appeal was being fixed for hearing arguments from both sides. On 24-3-1986, as it was pointed out to the learned District Judge that some connected appeal was being heard by a learned Additional District Judge in that District, the appeal before him was transferred to the file of that learned Additional District Judge with a direction to the parties to appear before him on that very day. From this date to 3-2-1987, appeal was adjourned for hearing arguments when eventually those were addressed and pronouncement of judgment was postponed to 12-2-1987 by the learned Additional District Judge. However, judgment could not be pronounced till 19-2-1987 when the appeal was adjourned sine die till the decision in a Civil suit in Re:-Tahir v. Ahmad Bakhsh. Accordingly, appeal file was consigned to Record Room with a right for its revival after the final decision in the aforenoted civil suit. On 17-10-1988, respondent filed a miscellaneous petition for revival of the appeal by stating that in terms of a judgment of the Supreme Court of Pakistan in pre-emption matters, pre-emption suit would not fructify. The Court entertained the application for revival of the appeal, received reply from the petitioners and eventually by its order passed on 5-1-1989, ordered that the Appeal No,162 of 1986 in Re:-Tahir etc. v. Ahmad Bakhsh is restored and fixed for hearing of arguments on 9-1-1989. On 9-1-1989, and 18-1- 1989, appeal was adjourned at the request of the learned counsel for the parties. On 6-3-1989, appeal was further adjourned to 12-34989 for hearing of arguments. On this date, arguments were partly heard and the appeal was adjourned to 15-3-1989 for further arguments to enable the learned counsel for the parties to refer to case-law. On 15-3-1989, arguments could not be heard as the learned counsel for the petitioners had suffered a death in his family. On 22-3-1989, upon the statement of the parties learned counsel hearing of this appeal was linked with a connected appeal and adjourned to 15-4-1989 for arguments. It was then adjourned to 25-5-1989 and 7-11- 1989 for one reason or the other. On 13-11-1989, petitioners submitted a petition through their learned counsel that upon objection of the respondents counsel raised on 7-11-1989, that memordandum of appeal was not accompanied by certified copies of judgment and decree of the trial Court, it was discovered that those documents filed alongwith the appeal at the time of its initial presentation were got removed by Nazar Hussain son of the respondent in collusion with concerned staff and an inquiry into the matter was requested by them and it was further prayed that permission may be given to them to file fresh certified copies. That application was supported by an affidavit sworn by Tahir petitioner. Respondent denied the allegations. Without any inquiry, the Judge below dismissed the appeal on the objection that the appeal was not accompanied by certified copies of the judgment and decree of the trial Court. It would be a little useful to observe that respondent was initially represented by Mr. Fazal Hussain Khan Haideri, Advocate who held a power of attorney from him directly. On 25-4-1989, his son Nazar Hussain as his general attorney gave power of attorney on his behalf to Malik Muhammad Aslam, Advocate. Presumably, the new Advocate substituted the learned Advocate who was already appearing in appeal on behalf of the respondent. It was after this stage that the defect in the form of appeal came to be noticed and pointed out to the Court. None before, not even the Court official whose duty it was to check the appeal had noticed the fundamental omission. There is no doubt or dispute that in terms of mandatory provision in Order XLI rule 1 Civil P.C., memorandum of appeal must be accompanied by a certified copy of the decree and when it is not so accompanied by that document, the presentation of appeal is invalid because though the Court is empowered to dispense with the copy of the judgment but it is not competent to dispense with the copy of the decree. Its production is an absolute necessity because the appeal lies from the decree only.
6. ' On behalf of the petitioners, it is submitted that certified copies of the judgment and decree which were basics for a valid presentation of appeal were annexed to the memorandum of appeal filed in the District Court and a noting in the hand of Sarishtadar about deficiency in court-fee stamps on the decree-sheet was strongly indicative and supportive of that statement. Therefore, the learned Judge below was obliged to hold an inquiry into the removal of these documents from the judicial file to reach the hands which were responsible for it and deal with them in accordance with the requirements of forms of law. Without such a probe, petitioners' appeal could not have been dismissed. Learned counsel for the respondent supported the impugned order and submitted that omission was deliberate and could not have been condoned.
7. ' I have myself very carefully looked into and critically scrutinized and scanned the whole record of first appeal. It is really enigmatic that in absence of certified copies of the judgment and decree of the trial Court, appeal could have been entertained, heard on merits also and yet none, either from the officials of the Court, the Court itself, and the respondent's counsel raising of finger to the fundamental omission which could have proved mortally fatal to the appeal obviating the necessity of hearing lengthy arguments on merits. My own experience at the Bar as a parctising Advocate in the mofussil shows that a first appeal is ordinarily constituted of few documents i.e, memorandum of appeal, Power of Attorney, if need be, copies of judgment and decree appealed from and the stay petition, if any required in a case. It has not much bulk. Yet no human eye could catch or discover the omission for almost five years till after various important steps were taken, such as hearing of arguments more than once. It is painful to observe, that in more recent times, sanctity of judicial record has not been free from interference by foul hands and may be this has happened in this case also to run an easy victory. Value of land is soaring high and so is love for it.
8. As I proposed to remand the case for a proper probe into the whole matter, I would not proceed further to express my views, lest it may prejudice the future course of litigation. But at the same time, I cannot help observing that a party is entitled to a hearing on his complaint by the Court and that right the law gave to him. It is not a mere concession from the Court. Rather, the Court is, by the nature of its very existence, clearly obliged to afford hearing and decide on the grievance judicially. When I look at the record from that angle, I regret to note that the learned Judge below had conveniently forgot to perform his judicial duty. There is not a word in his judgment touching the application filed by the petitioner about removal of documents from the Court-file. Allegation that Nazar Hussain son of the respondent was attached to the Court of a learned Additional District Judge as its Naib-Court was not denied. In course of hearing of the appeal, he was present in this Court. In reply to a question, he admitted that he remained posted as Naib-Court but denied the allegations that he had a hand in removal of the documents from the judicial file. As the petitioner asserted that the memorandum of appeal was accompanied by certified copies of judgment and decree and those were removed subsequently, which allegation the respondent controverted, an inquiry was necessary to be held to discover the real truth and without that dismissal of the appeal could not be upheld. In this view, I would accept the Revision Petition, set aside the impugned order and decree of the learned Judge below, and, direct an inquiry into the matter by the learned District Judge, Bhakkar, himself to whom the case is being remitted for deciding of it afresh in accordance with law. As the matter has already suffered delay, learned District Judge shall make endeavour to decide the appeal preferably within three months from the date of receipt of records by him.