1. This is an application under section 115 of Civil. Procedure Code to revise a decree of the lower Appellate Court dated 16-12-1980 dismissing the appeal filed before it as barred by limitation. The facts may be shortly stated as follows:-- Rasool Butt brought a suit for declaration of ownership rights in respect of a property situated at Kot Mangal Sen Khewra in Tehsil Pind Dadan Khan, and, in the alternative for its pre-emption.
2. Muhammad Shafi owned a house at Kot Mangal Sen. He sold it to lmdad Hussain. Plaintiff claimed that sale included a Baithak of his house which Muhammad Shafi was not authorised to sell. He claimed that he was in possession of the Baithak and his possession could not be interfered with by alienee of the house from Muhammad Shafi. In respect of the Baithak plaintiff claimed declaration of his rights and as far the house, he asserted pre-emption in respect of its sale.
3. Muhammad Shafi and lmdad Hussain contested the suit, and, averments in the plaint were controverted by them. During the currency of the trial, plaintiff was dispossessed of the Baithak by lmdad Hussain. Thereupon, plaint was amended for claiming relief of possession of the Baithak from lmdad Hussain. Lmdad Hussain died on 25-6-1974. His legal representatives were substituted on record for him. Amended plaint after their impleadment was filed in Court. Trial Court framed appropriate issues arising for decision by it. Thereafter, it took evidence from the parties and upon reviewing it, vide its judgment dated 7-10-1976 decreed the suit for possession in respect of Baithak and dismissed the same with regard to pre-emption relating to sale of the house.
4. Plaintiff did not die an appeal against the decree of the trial Court. Legal representatives of Imdad Hussain along with Muhammad Shafi came up in appeal to learned District Judge, Jhelum on 14- 10-1976. Certified copy of the judgment of the trial Court was annexed to the memorandum of appeal. As for certified copy of the decree-sheet, it was not filed. After para-7 of the grounds of appeal, a note was appended that since decree-sheet was not prepared, it shall be filed upon receipt of its certified copy. Reader to the Court of learned District Judge noted that appeal was in time, and the court --fee paid on memorandum of appeal was correct. Appeal was placed before learned District Judge on 15-10-1976. It was admitted to hearing and a notice issued to respondent for 24-11-1976. Record from the trial Court was requisitioned for a day preceding the date fixed for hearing, and, till then status quo was ordered to be observed. Upon service of the respondent in appeal and receipt of records from the trial Court, the appeal was posted for hearing arguments on merits. Thereupon, it was adjourned for hearing arguments on number of dates till 25-4-1978, when the learned counsel for respondent in appeal objected to its maintainability on the ground that it was not accompanied by copy of the decree-sheet. Above objection having been raised, learned lower Appellate Court adjourned the appeal for hearing arguments on merits of the objection and postponed it to 13-7-1978. A day before, appellants submitted an application along with the decree-sheet for taking it on record. Further, an application under section 5 read with section 12 of the Limitation Act supported by an affidavit was put in for seeking condonation of delay caused in filing the decree-sheet. On the adjourned date of hearing lower Appellate Court directed for delivery of copies of the applications to the other side and put off the hearing to 18-9- 1978 for their reply and arguments on the aforesaid applications. Respondent gave his replies.
5. Thereafter, the appeal was adjourned for several dates of hearing, and , eventually dismissed as barred by limitation on 16-12-11980. Defendants to the suit in the trial Court and appellants in the lower Appellate Court have come up in revision for assailing the aforesaid judgment and decree of the lower Appellate Court. On the strength of a Ruling in F.I.R. 1926 Nagpur 57, civil revision was admitted to hearing on 14-1-1981. Seen from the above, it would be evident that the appeal was dismissed solely on point of limitation and its merits were not touched. So the only point for determination in revision would be whether the appeal was barred by limitation, and, the delay in the circumstances could or ought to have been condoned for its decision on merits. For the decision of the above point reference to some dates and events shall be necessary. Trial Court gave judgment on 7-10-1976. Appellant/petitioners applied to the Copying Agency for certified copies of judgment and decree of the trial Court on 9-10-1976 Certified copy of the judgment was prepared and delivered to them on the same date. However, certified copy of the decree was not supplied by the Copying Agency on the ground that it was not prepared as yet. Upon receiving certified copy of the judgment, applicants/petitioners preferred an appealthe District Court and annexed copy of the judgment with memorandum appeal and appended afore said note about the absence of the decree-sheet. Upon the defect being pointed out by the respondent for the first time on 25-4-1978, the petitioners applied afresh for certified copy of the decree-sheet on 26-4- 1978. Copy was prepared on 27-4-1978 and delivered on 29-4-1978. On the file of lower Appellate Court. There is an application for obtaining certified copies of the judgment and decree of the trial Court, which bears the date of 9-10-1978 by a Naqal-Nawees. That has not been looked into for its relevance by the lower Appellate Court; whether it was the original application or an application riled subsequently for the certified copies. Upon investigation of the recorded dates on the back of the certified copy of the decree-sheet, lower Appellate Court found.
6. "The time would start running from 29-4-1978, if a lenient and liberal view of the matter is taken. The appellant did not file the same and kept it with him for no obvious reason. It was filed in the Court on 12-7-1978. The appeal shall be deemed to have been filed on that date. There is no explanation on the record regarding the reason and the circumstances which had prevented the appellant from not filing the certified copy of the decree-sheet immediately on obtaining the same. The appellant kept with him the certified copy of the decree-sheet for a period of more than three months. The appeal on that. Plane is barred by time and there is no justification to condone that delay, which is a clear manifestation of the gross negligence on the part of the appellant."
7. There is no dispute that initially the decree was not prepared by the trial Court. Only a judgment was delivered by it. As provided in section 33 of the Civil Procedure Code, decree follows the judgment and bears the same date as that of the judgment of the Court. Section 96, C.P.C. Provides that an appeal lies against the decree. Order XLI, Rule 1, C.P.C. Clearly mandated filing of certified copy of the decree along with memorandum of appeal. Without its annexation, appeal could not be competently filed. Though certified copy of the judgment also required to be filed along with memo of appeal could be dispensed with in its discretion by the Appellate Court, but the procedural law gave no power to the Court to waive or dispense with production of certified copy of the decree-sheet. Among the Courts, there is consensus on this view, and, Rule 1 of Order XLI, C.P.C. Has been interpreted by them in that manner. Summoning of records containing presence of decree on it would not tantamount to filing of the decree with memorandum of appeal by the appellant for waiving its actual production by the Appellate Court. From the date of pronouncement of the judgment by the trial Court on 7-10-1976 to 27-4-1978, when the decree- sheet was actually prepared and signed by it, limitation prescribed for preferring appeal did not commence to run. Judgment of the Supreme court reported in PLD 1907 SC 271 supported this view.
8. Even the learned counsel for respondent conceded the correctness of this view. Real dispute starts from the period commencing 29-4-1978 to 12-7-1978, when the certified copy of the decree-sheet was filed in the lower Appellate Court. On the date of riling of the appeal in the lower Appellate Court on 14-10-1976, the decree appealed from was not in existence. It was actually prepared much later on 27-4-1978 and its certified copy was made available to the petitioners on 29-4-1978. Lower Appellate Court had entertained the appeal without the decree accompanying the memorandum of appeal. Even, it admitted the appeal for its hearing on merits. It also requisitioned the records of lower Court which contained on it the decree-sheet prepared on 27-4-1978. Neither the lower Appellate Court nor the respondent ever objected to the maintainability of the appeal without decree till 25-4-1978, when for the first time, an objection was raised that appeal without decree could not proceed. Meanwhile, an impression was allowed to be gained that the appeal could proceed without decree of the trial Court being on record. This impression was further re-inforced by absence of a clear direction from the Appellate Court for filing of the decree-sheet by the appellants/petitioners. Emboldened by the above circumstance and a hope created by the act of the Court, appellants may have entertained an idea for riling of the certified copy of the decree in Court, when called upon to do so by it. In nursing such a thought, the appellants may not be far wrong. In the circumstances, a question arose, whether in exercise of discretion vested in Court delayed filing of decree-sheet could have been condoned for saving limitation and promoting decision of appeal on merits. In Baseer Ahmad Siddiqui. v. Shama Afroze 1985 CLC 1711 and M/s. Manzoor Ahmad and Brothers v. Islamic Republic of Pakistan, through Secretary, Ministry of Defence, Islamabad and 4 others 1990 M LD 2140 in Karachi and Quetta jurisdictions respectively in somewhat similar circumstances, delay was condoned and matters were heard on merits. Case of Baseer Ahmad Siddiqui was taken up in Petition for Special Leave to Appeal before' the Supreme Court, but their Lordships left open the question, that copy of the decree received by the Appellate Court along with- record of the suit was a sufficient compliance with requirement of law in Order XLI, Rule 1, C.P.C. Act of the Court must not prejudice hearing of the cause and its decision on merits. In Islam, approach of the Court and its discretion in a cause for decision before it must be regulated and nurtured in the Islamic Philosophy of administration of justice, wherein technicalities are not allowed to trip the litigants and obstruct fair course of justice.
9. With the above object in the forefront, to my mind, delayed filing of the copy of the decree-sheet.
10. Ought to have been condoned for hearing of the appeal on its merits for distributing their rightful due to each party. The view of the lower Appellate Court is, therefore, incorrect. Revision is, accordingly, allowed and the case is resent to the lower-Appellate Court for re-consideration and decision afresh of the appeal before it on merits. Costs to be borne as incurred.
11. Records be returned.
12. A.A./Z-36/L