' This regular second appeal arises out of a suit for partition filed by the deceased respondents Nos.
1 and 2 (now represented by their L.Rs,) on 21-2-1968. The trial Court passed a preliminary decree on 26-11-1970 The appellants wanted to challenge the preliminary decree and applied for the certified copies of the judgment and decree on 26-11-1970. Copy of the judgment was delivered on 24-12-1970 with a note by the office that the decree sheet had not been drawn up. The appellants again applied for the certified copy of the decree sheet on 7-1-1971. In the meanwhile, the appellants filed an appeal before the learned Additional District Judge on 20-1-1971 without attaching the certified copy of the decree sheet. It was mentioned in para. 11 of the memorandum of appeal that the decree sheet had not been drawn up and for that reason its copy could not be placed on the record.
' On 20-3-1971, arguments on the preliminary objection regarding the maintainability of the appeal were heard. The appellants' learned counsel prayed that time be granted for placing the copy of the decree sheet on the record. The case was adjourned for 24-3-1971 for orders. On that date, the appellants filed an application requesting again for grant of time for filing the certified copy of the decree sheet. On 3-4-1971, the appeal was dismissed by the learned Additional District Judge as being incompetent.
2. The certified copy of the decree sheet was prepared by the Copying Agency on 9-4-1971 and was delivered to the appellants on 13-4-1971. The appellants filed an application for review of the judgment dated 3-4-1971 which was dismissed on 9-9-1971.
3. Learned counsel for the appellants submits that the appellants were not to be blamed because the decree sheet was not drawn up by the Court. He points out that the appellants had applied for the certified copy of the judgment and decree on 26-11-1970 and the certified copy of the decree sheet was got prepared by the office on 9-4-1971 and delivered to the appellants on 13-4-1971, therefore, the appellate Court should not have acted in haste in dismissing the appeal. Instead the appellants should have been allowed time with a direction to place the certified copy of the decree sheet on the record. In support of his contention, he places reliance on the following cases:---
(1) Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892.
(2) Messrs Manzoor Ahmad and Bros. v. Islamic Republic of Pakistan through Secretery, Ministry of Defence, Islamabad and 4 others 1990 MLD 2140.
(3) Haji Jehanzeb v. Khalid Khan and another PLD 1983 Pesh.
215.
(4) Manohar Lal v. Nanak Chand AIR 1919 Lah.
53.
(5) Mangal Singh v. Hirda Ram AIR 1919 Lah. 125(1).
' The learned counsel for the appellants also submits that the appellants have been vigilant in pursuing the matter. They initially applied for the certified copies on 26-11-1970 on which only the copy of the judgment was delivered on 24-12-1970. The decree sheet was not drawn up, therefore, the appellants applied for the copy of the decree sheet again on 7-1-1971. The copy of the decree sheet was supplied on 13-4-1971, therefore, the appellate Court should have kept the appeal pending and decided the same on merits as prayed for in the appellants' application dated 24-3- 1971. On the other hand, the respondents' learned counsel submits that the Appellate Court had rightly dismissed the appeal as being incompetent because it was not accompanied by the decree sheet. He adds that under the provisions of Order XLI, rule 1, C.P.C. the Appellate Court can dispense with a copy of the judgment but not that of the decree sheet. Further submits that after obtaining the certified copy of the decree sheet the right course for the appellants was to file another appeal as the earlier judgment could not operate as res judicata to the appeal. He submits that judgments in the case of Baseer Ahmed Siddiqui and Haji Jehanzeb were distinguishable because copies of the decree sheet were placed on the record during the pendency of the appeal.
4. It is settled law that an appeal under section 96 or 100 of the C.P.C. is filed against the decree and that the appeal is not competent unless accompanied by a decree sheet.
' However, where the decree has not been drawn up by the Court and an appeal is filed by attaching the impugned judgment and the Appellate Court is A informed that an application had been filed for obtaining a certified copy of the decree, the proper course to be followed by the Appellate Court is that the appeal be kept pending and time allowed to the appellant to obtain a certified copy of the decree sheet and place it on the record. No litigant could be made to suffer on account of the fault of the Court or the Court official. It is the duty of the Court to see to it that a decree sheet is drawn up in accordance with the judgment passed in the case. Ordinarily a litigant can presume that a decree sheet must have been drawn up in the light of the judgment and can hope to obtain its copy alongwith the copy of the judgment. The trial Court had passed a preliminary decree in a partition case on 26-11-1970. The appellants promptly applied for certified copies of the judgment and decree on the same day. However, only a copy of the judgment was supplied to them on 24-12-1970 but the copy of the decree sheet was not provided because it had not been drawn up. The appellants waited for some time and filed another application on 7-1-1971 for obtaining a copy of the decree sheet. However, the same was not yet supplied to them when on 20-1-1971 they filed an appeal before the learned District Judge. In para. 11 of the memo. of appeal it was mentioned that the decree sheet had not been prepared and that an application for obtaining a certified copy of the decree had been filed. The appeal was entertained by the Court and notice was issued to the respondents for 20-3 1971. On the said date an objection was raised on behalf of the respondents that the appeal was not properly constituted as it was not accompanied by the decree sheet. The appellants explained the above facts and prayed that the case be adjourned to enable the appellants to obtain the certified copy of the decree sheet and place the same on the record. The Court adjourned the hearing of the appeal for 24-3-1971. On the said date the appellants filed a written application stating therein that the copy of the decree had not been supplied to them. They prayed that they may be allowed more time for producing the decree sheet. The case was adjourned for 3-4-1971 and the Court proceeded to dismiss it as being insufficiently stamped and not validly instituted.
5. The certified copy of the decree sheet was prepared on 9-4-1971 and actually supplied to the appellants on 13-4-1971. The appellants filed a review petition before the learned District Judge on 4-5-1971 for recalling the order dated 3-4-1971 but the same was dismissed vide the order dated 9- 9-1971. The above narration of facts clearly shows that the appellants were not to be blamed for not attaching the copy of the decree sheet with the memorandum of appeal. Perhaps due to the misapprehension that their appeal would become time-barred, they hastened to institute the appeal on 20-1-1971. Till then the decree sheet had not been drawn up. This fact was duly mentioned in para. 11 of the memo. of appeal. Subsequently the Appellate Court was duly informed that the appellants had filed two applications for obtaining the certified copy of the decree sheet.
Under these circumstances, the Appellate Court should not have taken the hypertechnical view and proceeded to dismiss the appeal without giving more time to the appellants to produce a copy of the decree sheet. By virtue of the provision of section 151 of the C.P.C. the Court had inherent power to allow more time to the appellants in the interest of justice to produce the copy of the decree sheet. Till the date of decision of the appeal, the copy of the decree sheet had not been prepared and obviously the appeal had not become time-barred. Had the appellants been negligent and not applied for a certified copy of the decree sheet then the appeal could have been dismissed as being incompetent without any hesitation. However, in the facts and circumstances of the present case the Appellate Court ought to have exercised its inherent powers to secure the ends of justice by allowing time to the appellants to place the decree sheet on the record. A Court of law always lays in favour of adjudication of causes on merits and not on mere technicalities. As held in the case of Mrs. Dino Manekji Chinoy and others v. Muhammad Matin PLD 1983 SC 693 the technicalities of law should not be allowed to become a stumbling block 'in the path of justice'. It was emphasised that proper place of procedure was to help and not thwart obtaining of justice...
6. The matters relating to fate of appeals filed without decree sheets have been often coming up before the Courts. In the case of Baseer Ahmad Siddiqui an appeal was filed against the judgment of the Civil Court without a copy of the decree sheet as it had not been prepared by the Court. The Appellate Court issued notice to the respondent who entered appearance and raised a preliminary objection about the competence of the appeal. The record of the trial Court had been called by the Appellate Court, therefore, they obtained a certified copy of the decree sheet from the Appellate Court and placed it on the record with an application for condonation of delay on 23-7-1978. The Appellate Court did not formally decide the said application but allowed the appeal on merits. The appellate judgment was attacked by way of a revision petition which was dismissed by the High Court. In the above factual background the Hon'ble Supreme Court was pleased to hold as under: "The other aspect of the case is that if the respondent had actually made an application for copy of the decree before the trial Court, there is nothing on the record to indicate whether this copy was prepared and notice given to the respondent that the same is ready for delivery. All these circumstances seem to justify the conclusion of the High Court that respondent was not at fault for not obtaining a copy of the decree from the trial Court."
' In the above precedent case, the appeal before the learned Additional District Judge remained pending and the appellant had sufficient time to obtain a decree sheet and place it on the record.
The Appellate Court had adopted the right course in not dismissing the appeal as being incompetent on the preliminary objection raised by the respondent regarding incompetence of the appeal and waited till the appellant obtained the copy and placed it on the record. In M/s. Manzoor Ahmad and Brothers' case first appeal was filed in the High Court without a copy of the decree sheet and was placed on the record after the expiry of period of limitation. The Court overruled the objection relating to non-filing of decree sheet, entertained the appeal and condoned the delay in filing the decree-sheet. In the case of Haji Jehanzeb an appeal without a decree sheet was entertained and admitted for regular hearing. The Court was pleased to observe that an appeal should be carefully scrutinized at an initial stage to remedy the defects. However, where it had passed the said stage and was admitted for hearing then the fair and rational course was to adjourn the hearing and direct the appellant to get and file a copy of the decree sheet as soon as it was obtained. In Manohar Lal's case an appeal was filed under section 96 of the C.P.0 without a decree sheet as the decree had not been drawn up. The appeal was not dismissed as being incompetent despite the preliminary objection regarding the incompetence of the appeal which was overruled by the Court and the appellant was directed to apply to the lower Court within one month for drawing up a formal decree and to attach the same with memo. of appeal as soon as obtained.. A similar view was expressed in Mangal Singh's case, the appeal filed without a decree sheet was dismissed by the first Appellate Court. The subsequent application for review filed alongwith the decree sheet was also dismissed by the Appellate Court. The matter came up before the High Court on revisional side which was accepted and the case remanded for disposal of the appeal on merits. It was held: "The decree sheet should obviously have been prepared at the time of the judgment. The Senior Subordinate Judge, considering the circumstances of the case, should also not have rejected the appeal but should have adjourned the case until a copy of the decree was forthcoming. Order 41, Rule 1, Civil P.C. can have no application in a case in which the original Court has carelessly omitted to frame a decree, and the Senior Subordinate Judge should have taken immediate steps to have the omission remedied."
' The appellants' learned counsel has also drawn my attention to a judgment from Indian jurisdiction in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others AIR 1961 SC 832, it was held that no hard and fast rule of general application could be laid down for dealing with appeals defectively filed under Order 41, Rule 1 of the C.P.C. It was also observed that such defective appeals could be carefully scrutinized at the initial stage soon after they are filed and the appellants required to remedy the defects. It was held that if at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellants have not applied for it in time, it would be a clear case justifying dismissal of appeal as being incompetent.
However, if the decree sheet was not drawn up then in such a case the appeal filed is premature.
On discovering the defect the appeal may be returned to the appellant for presentation with the certified copy of the decree sheet. However, if appeal has passed through oversight of the office then only fair and rational course to be adopted is to adjourn the hearing of the appeal with a direction to the appellant to produce certified copy of the decree as soon as it was supplied to him.
7. In the present case, as noted above the decree sheet had not been drawn up at the time when the appeal was filed before the District Judge. The appellants had stated in the memo. of appeal that the decree sheet had not been prepared and they had already applied for a certified copy of the same. The appeal was not returned by the office and was rather entertained and thereafter admitted for regular hearing. During the course of hearing the Appellate Court was apprised of the fact that the decree sheet was not annexed to the memo. of appeal and a request was made for adjourning the hearing of the appeal to enable the appellants to obtain certified copy of the decree sheet and to place the same on the record. The Appellate Court granted two short adjournments and then proceeded to dismiss the appeal holding it incompetent on the twin grounds of deficiency of court-fee and the absence of the decree sheet. The view taken by the first Appellate Court has caused serious prejudice to the appellants and resulted in defeating the ends of justice.
8. So far as the question of court-fee is concerned it is settled law that on noticing deficiency in payment of court-fee the Court ought to have allowed an opportunity to the appellants to make good the deficiency. Moreover, the decision on the question of court-fee ought to have been deferred till the appellants had placed a copy of the decree sheet on the record. Since the appeal was filed at a stage when the decree sheet had not been drawn up it was merely premature and not incompetent. The exact date when the decree sheet was drawn up in the present case is not ascertainable. However, the certified copy was prepared by the copying agency on 9-4-1971 and delivered to the appellants on 13-4-1971. Prior to that the Appellate Court dismissed the appeal on 3-4-1971, the course adopted by the first Appellate Court appears to be rather arbitrary and hasty and contrary to the law laid down by the superior Courts in the above-referred judgments and precedents.
9. Therefore, I accept this appeal and set aside impugned judgment and decree dated 3-4-1971 as well as the order dated 9-9-1971 whereby the review application filed by the appellants was dismissed. The Appellate Court should decide the appeal on merits in accordance with the law, preferably within a period of six months after the receipt of the order. Since an intricate law point was involved, the parties are left to bear their own costs.