' SAJJAD ALI SHAH, J.--- This appeal with leave is directed against judgment, dated 3-12-1989 of Lahore High Court, Lahore whereby R.SA. No,237 of 1982 filed by appellant is dismissed as incompetent under Order 42, rule 2, C.P.C. On the ground that certified copy of the judgment impugned therein was not filed. Leave is granted by this Court to consider whether appeal could be dismissed on such technical ground..
2. It is not necessary to go into the facts except a very brief mention that Taj Din and Muhammad Yaqoob (respondents Nos.1 and 2) filed suit for specific performance against Rehmat Ali respondent No,3, who took plea that he sold the house in dispute to Mst. Safia (appellant) and she was also impleaded in the suit as defendant No,3. Suit was decreed but against that appeal was allowed and the case was remanded. On the second occasion, trial Court refused specific performance and decreed the suit for recovery of Rs,10,000. Two appeals were filed and learned A.D.J. Dismissed appeal of Rehmat Ali and allowed appeal of Taj Din and Yaqoob and granted relief of specific performance of agreement. Feeling aggrieved, Mst. Safia Begum approached High Court and filed Regular Second Appeal.
3. In the High Court when objection was taken that certified copy of the impugned judgment was not filed, plea was raised on behalf of the appellant that she had filed application under section 151, C.P.C. (C.M. No,4248-C of 1982) for dispensing with production of certified copy but no order was passed on it by the Court as such she should not be penalised by the act or omission of the Court.
High Court has held that production of certified copy of the impugned judgment is a mandatory requirement and in the instant case appeal cannot be said to be properly constituted as the requirement was not dispensed with. Learned counsel for the opposite-party produced a chit showing that after applying for certified copy, appeallant visited copying agency for the last time on 27-7-1982 and on that basis High Court held that on her own showing, appellant made no effort to obtain certified copy after applying. .
4. It is submitted before us that certified copy could not be obtained for the reasons that after filing of R.S.A. In the High Court, record was summoned and was produced in the High Court. Secondly, it was incumbent upon the Court to have passed order on application filed to dispense with certified copy under section 151, C.P.C. It appears that Order 41 relates to appeals from original decrees and rule 2 thereof envisages that except by the leave of the Court, appellant shall not urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Order 42 provides that rules of Order 41 shall apply, so far as may be to appeals from appellate decrees.
Copy of application praying for dispensing with production of certified copy of judgment is in the paper book (page 66) which mentions undertaking of appellant to produce certified copy on the record as soon as the same is made available and in the meantime uncertified copy was placed on the record. Application was supported by affidavit of appellant. Learned counsel for the appellant before us submitted that uncertified copy of the impugned judgment was in fact a photostat copy and since original record was available in the High Court, comparison could have been made and if counsel for the other side was satisfied, production of certified copy should have been dispensed with or in any case some order should have been passed on the application of appellant. We see sufficient merit in the contention of the learned counsel for the appellant.
5. Record shows that in the High Court second appeal was filed on 14-9-1982 and on 20-9-1982 record was summoned to reach the Court within a forthnight. Order sheet of the record of the High Court further shows that on 23-5-1983 Sardar Muhammad Akram, Advocate sought adjournment on the ground that he had not inspected the record. On 15-6-1983 appeal was admitted and order of status quo was passed. Judgment impugned in the appeal before us was passed on 3-12-1988 and on that day the record was available in the High Court. If certified copy is not produced on the ground that the record has been requisitioned by the appellate Court, then the concerned party cannot be blamed for being unable to produce certified copy. In the instant case application of appellant for dispensing with production of certified copy should have been allowed for the reason that record was available in the High Court or should have been dismissed with direction to the.
Appellant to apply for certified copy from the record in the High Court. In the absence of any order on the application of appellant, question of filing application under section 5 of the Limitation Act for condonation of delay does not arise.
6. In the case of Akbar Khan v. Muhammad Razzaq PLD 1979 SC 830 this Court has held that under Order 42, Rule 2, C.P.C. In second appeal before the High Court, it is obligatory to file order of the trial Court and the requirement is mandatory but nevertheless the High Court has power to dispense with same in its discretion.
7. In the case of Muhammad Ali and others v. Muhammad Sharif and others 1983 SCM R 299, considering question of limitation of appeal in view of Order 41, Rule 2 and section 151, C.P.C. This Court has held that order passed by the High Court dismissing appeal. As not properly constituted and time-barred was justified as appellant failed to supply certified copy of the trial Court's judgment within extended tithe granted by the High Court. In the instant case no order was passed by the High Court on the application which was pending with prayer fir dispensation of production of certified copy.
8. On this subject in similar circumstances question came up for consideration before this Court in the case of Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCM R 892. Before A.D.J. First appeal was filed with copy of judgment but not copy of the decree. Appeal wa& admitted to regular hearing after which opposite-party raised objection that appeal was not in proper form as copy of the decree was not attached and was accordingly barred by limitation. Appellant in this case took plea that application was filed for obtaining certified copy of the decree but before the same could be issued record was summoned, by the appellate Court. It was held by the Court that there was nothing on the record to indicate whether the copy was prepared and notice was given to the party that the same was ready for delivery. The circumstances seemed to justify the conclusion of the High Court that the respondent was not at fault for not obtaining the copy of the decree from the trial Court. No exception was taken by this Court to the action of the High Court of condoning the delay in submitting the decree sheet by the respondent after the filing of appeal.
9. . In the case of Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859, while considering question of conversion of revision into appeal in view of Order 41, Rule 1, C.P.C. As amended by Lahore High Court, this Court has held that non-supply or late supply of the copies of lower Courts judgments and decrees and the so-called late refiling of revision after removing objections, being that of procedural nature would not create any substantive bar. It was further held that objection to the. Effect that amendment in Order 41, Rule 1, C.P.C. Dealt with only first appeal was hypertechnical which in a procedural matter cannot be allowed to trap a litigant as Order 42 of C.P.C. Provides that rules of Order 41 shall apply mutatis mutandis while processing the second appeals filed.In the High Court.
10. The proposition mentioned above, has been dealt with effectively by the Lahore High Court in the case of Noor Muhammad v. Ch. Ghulam Muhammad and others PLD 1978 Lah. 819 while interpreting Order 41, Rule 1, C.P.C. And the portion from the relevant paragraph is reproduced as under:--
11. "The language used in rule 1 is such that it does not exclude the possibility of the Court dispensing with the copy through an act of Court or otherwise by implication. The word 'dispense with' has been used in the rule in a general sense which means either 'permit the want of of a certain thing or 'do without' it. Thus, both the modes of exercise of the power under rule 1 are permissible. The Court can founally, through an order of permission, dispense with; as also, by act of hearing the appeal without the help of the certified copy, exercise this power. It may also be observed that the power is wide enough to include those cases of urgency also where even unattested copies are not available. If that is so, the intention of the Legislature could not be other than the provision being salutary has to be applied liberally and in a pragmatic manner."
' We endorse and approve the reasoning in the said decision of the High Court.
12. Learned counsel for the respondents submitted before us that conduct of appellant is not bona fide for the reason that she did not fulfil the undertaking given by .Her in her application filed in the High COurt under section 151, C.P.C. In which she stated that she would file certified copy as soon as the same was available and receipt produced by her (page 79 of paper book) shows that Rehmat Ali had applied for certified copy and not her. There is no substance in the contention for the reason that her undertaking was that she would produce the certified copy which does not necessarily mean that she must apply in her own name. She had purchased land from Rehmat Ali and we see absolutely no harm if she wanted to produce certified copy in the High Court applied for by Rehmat Ali. Keeping in view facts and circumstances of this case as stated above, we are of the view that High Court should have passed order on the application of appellant for dispensing with production of certified copy of the judgment and since the record was available in the High Court, prayer in the application should have been allowed and discretion should have been exercised in favour of appellant. If High Court wanted to reject the application, permission should have been granted to the appellant to apply for certified copy from the High Court to produce the same. We, therefore, set aside the impugned judgment, allow the appeal and remand the case to the High Court for decision on merits. There will be no order as to costs.