' MUHAMMAD YUNUS SURAKHVI, J.--This appeal, with the leave of the Court, has been directed against an order recorded by the High Court on April 13,1995, whereby the appeal filed by the appellant, herein, against the judgment and decree passed by Additional District Judge Kahuta (Havaili), District Bagh, dated September 2, 1992, was dismissed, as being incompetent.
2. The brief facts, forming the background of this appeal, are that respondents instituted a suit in the Court of Sub-Judge, Kahuta (Havaili) for specific performance of contract which was decreed by the trial Court vide order dated February 28, 1989. An appeal filed by the appellant, herein, before the Additional District Judge, Kahuta (Havaili) was dismissed vide his order dated September 2, 1992. The appellant went up in second appeal before the High Court but the same was also dismissed vide the impugned order on the ground that memorandum of appeal did not accompany the copy of the judgment of the trial Court, as envisaged under the relevant provisions of law. A learned Judge in the High Court, however, did not advert to the merits of the case, as the appeal was dismissed on a preliminary objection raised by the respondents.
3. Syed Nazir Hussain Shah Kazmi, the learned counsel appearing on behalf of appellant, vehemently contended that the High Court has overlooked the fact that it is mentioned in the memo. Of appeal itself that the copy of the judgment of the trial Court shall be filed later on. Thus, according to the learned counsel for the appellant, the appeal was not only instituted but the 4ame was admitted for regular hearing and notices were issued to respondents by applying judicial mind. This aspect, in view of the learned counsel for the appellant, would tantamount to dispense with the copy of the judgment of the trial Court. The learned counsel also submitted with vehemence that it was for the official concerned or the Registrar of the High Court to refuse to accept the institution of the appeal without the copy of the judgment of the trial Court in which case the appellant could have done the needful before instituting the appeal. On the aforesaid premises the learned counsel for the appellant maintained that it was enjoined upon the High.
Court to dispense with the copy of the judgment of the trial Court and to hear the appeal on merits, but a learned Judge in the High Court failed to do so by dismissing the appeal, as being incompetent. The learned counsel emphasized that in view of .The peculiar circumstances of the case the impugned judgment is not sustainable. The learned counsel for the appellant relied on the reported cases All Haider Shah v. Ghulam Muhammad 1981 CLC 359 and Maung Po Hlaing v. Ma Phe and others AIR 1930 Rangoon 235.
4. On the other hand Mr. M.Tabassum Aftab Alvi, the learned counsel for respondents, strenuously contended that the impugned order recorded by the High Court was perfectly valid and based on sound judicial reasons. The learned counsel submitted that under Order XLI, Rule 1, C.P.C., it was mandatory for the appellant to file along with the memorandum of appeal, the copies of impugned judgment and decree appealed from and the copy of the judgment of the Court of first instance, unles dispensed with by the Court, but the appellant failed to do so entailing the dismissal of his appeal as being incompetent. The learned counsel argued that the appellant, despite the fact that he averred in the memo. Of appeal that the copy of the judgment of the Court of first instance shall be furnished later on, slept over the matter and the Court was not obliged to dispense with the copy of the judgment of the trial Court for the reason of his indolence and carelessness. The learned counsel impressed upon that in the circumstances of the case there was no escape except to follow the provisions of law as postulated under Order XLI, Rule 1, Civil Procedure Code. In this view of the matter the learned counsel for the respondents-submitted that the impugned order recorded by the High Court was open to no exception. In support of his contentions, the learned counsel for the respondents, relied on Ali Zaman-v. Qasam Jan and 3 others PLD 1984 Azad J&K 61 and Sideman Khan v. Abdul Rehman and others PLD 1959 Azad J&K 31.
5. We have heard the respective contentions raised by the learned counsel for the parties and perused the record made available with care.
6. To begin with it may be stated that on the preliminary objection raised by the learned counsel for the respondents that the memo. Of appeal before the High Court was not accompanied by the judgment and decree of the "Court of Sub-Judge, Kahuta, a learned Judge in the High Court vide his impugned judgment dismissed the appeal as being incompetent. Neither Order XLI, Rule 1 nor Order XLII, Rule 1 stipulates that the memo. Of appeal must necessarily be accompanied both by the judgment and decree of the trial Court. The requirement of law, as we understand, is that memo. Of appeal in the High Court must be accompanied by three documents viz. Copy of the judgment and decree appealed from and copy of the judgment of the Court of first instance; however a discretion is vested in the Court to dispense with the copy of the judgment of either the trial Court or the appellate Court, keeping in view the facts and circumstances of each case. So far as the copy of decree appealed from is concerned, it cannot be dispensed with for the simple reason that an appeal is basically preferred against a decree and not against a judgment, unless of course the judgment itself amounts in a decree.
7. In the case reported as All Haider Shah v. Ghulam Muhammad 1981 CLC [SC (AJK)] 359 relied by the learned counsel for the appellant lays down the principle of law at page 360 in the following manner:-- "It is practically settled law that under Order XLI, Rule 1, C.P.C. The appeal filed in the High Court must also necessarily be accompanied by a copy of the judgment of the Court of first instance, if the discretion is not exercised in dispensing with such a copy."
' Though in the above case, in its peculiar circumstances, it was observed by the learned Judges that the copy of the judgment of the Court of first instance, shall be deemed to have been dispensed with; but we will be adverting to the facts of this case in the latter part of this judgment.
In the case reported as Muhammad Shall v. Mst. Jamila Bi and 9 others 1980 CLC [SC (AJK)] 1130, it was opined by this Court at page 1132 that: "Under Order XLII, Rule 1, Civil Procedure Code, as applicable in Azad Kashmir, the memorandum of second appeal before the High Court must be accompanied by three documents, namely, copies of the judgment and decree appealed from and unless the appellate Court dispenses with, the copy of the judgment of the Court of first instance. In the aforesaid case the copy of the judgment of the trial Court was filed at a later stage and it was prayed by the petitioner therein that the copy of judgment was delivered to him on July 3, 1977, when the time for filing the appeal had already expired. It was opined by the learned Judges that the application for obtaining the copy of the judgment must be made before the period of appeal expires and exclusion of time under section 12 of the Limitation Act can be claimed only if the application for copy is made at a time when the right of appeal subsists. Resultantly, on account of non-filing of the copy of the judgment of the trial Court with the memo. Of appeal before the High Court, the petition for leave to appeal was dismissed. In the case reported as Suleman v. Abdul Rehman PLD 1959 Azad J&K 31 it was observed as under:-- "The appeal filed by Abdul Rehman cannot be considered as cross-objections in the appeal filed by Suleman and since it is not accompanied by the copies of the decree sheet and the judgment of the lower appellate Court, as required by Order XLI, Rule 1, Civil Procedure Code, it is not a valid appeal."
' In the case reported as Mst. Sandal Begum v. Bassan Muhammad PLD 1991 Azad J&K 14 a learned Judge in the High Court opined at page 16 that "This is a second appeal. The Rules of Procedure applicable to second appeal under Order XLI, Rule 1, C.P.C. Are the same as are a imissible in case of first appeal contemplated under Order XLI, Rule 1 of thk. Code. The presentation of memorandum of second appeal is deemed valid when the memorandum is accompanied by copy of the judgment and decree appealed from and the judgment of the Court of first instance. These three documents should essentially accompany the memorandum of second appeal. However, it is mandatory that the memorandum of second appeal be accompanied by the decree appealed from as well as the judgment unless the Appellate Court dispenses with the copy of the judgment appealed from and the copy of the judgment of the Court of first instance. In the precedent case the required documents, namely, the decree, the judgment appealed from and the judgment of the trial Court, accompanied the memorandum of second appeal, the presentation of appeal was therefore, not defective as suggested by the learned counsel for the respondents".
8. From the survey of the case-law stated above it becomes clear like crystal that the memorandum of second appeal must be accompanied by the copy of the decree and judgment appealed from and the copy of the judgment of the Court of first instance unless the copy of the judgment of the Court of first instance or the judgment appealed from is dispensed with by the Court, either expressly, or by necessary implication.
9. In the instant case the main stay of the case of the appellant is that at the time of institution of appeal, the appellant categorically stated in the memo. Of appeal that the copy of the judgment of the Court of first instance shall be filed later on but despite the fact that the memo. Of appeal was not accompanied by the copy of the judgment of the trial Court, the Registrar of the High Court did not raise any objection to this effect and instead issued process to respondents. According to the learned counsel for the appellant this act of the Registrar tantamounts to dispensation of the copy of the judgment. We regret that we cannot subscribe to the view of learned counsel for the appellant for the following reasons:--
(i) The appellant himself stated in the memo of appeal that the copy of the judgment of the Court of first instance shall be filed at a later stage; meaning thereby, that he was well aware of the fact that filing the copy of judgment of Court of first instance was a prerequisite. According to our estimation, on the basis of the above clear averment made by the appellant that the copy of the judgment shall be filed later on, he created an impression in the mind of learned Registrar of High Court not to raise any objection at the time of institution of appeal most probably under the impression that the appellant will do the needful as the appeal was filed a few days after the pronouncement of the judgment of first appellate Court and the time for filing the appeal was still subsisting.
(iii) Even at the time of objection raised by the learned counsel for the respondents before the High Court the appellant neither made a verbal request before the learned Judge in the High Court nor moved any application requesting for dispensation of the copy of the judgment of the trial Court.
We therefore, cannot put a premium on the carelessness, contumacious, neglect and failure on the part of either the appellant or the learned counsel for the appellant, not to file the copy of the judgment of the trial Court.
10. In our considered view the appellant by stating that he would file the copy of the judgment of the Court of first instance later on when the time for filing the appeal was still subsisting, committed himself to do the needful and his act made the Registrar High Court to believe that the copy of the judgment of the trial Court shall be filed later on, so he did not raise any objection with regard to the incompetence of the appeal. We have also perused the interim orders recorded by the Registrar of the High Court and the learned Judge in the High, Court and found that at no stage any one of them passed an order for dispensation of the copy of the judgment of the trial Court.
Even no implied impression for such dispensation can be gathered. The appeal before the Registrar High Court was filed on September 29, 1992, whereby he issued summons to respondents and called for the record. The file for the first time was placed before the learned Judge in the High Court on October 4, 1993. Thereafter the case was adjourned from time to time at the request of either the counsel for the appellant or the respondents and finally the arguments were heard on April 13, 1995. The interim orders had been reproduced just to show that there exists no order on the file suggesting that the copy of the judgment of trial Court was ever dispensed with either by the Registrar or the learned Judge in the High Court. So keeping in view the above state of affairs it can safely be concluded that the present case appears to be that of a gross negligence on the part of the appellant.
' The authority relied upon by the learned counsel for the appellant 1981 CLC page 359 has distinct facts and features, so in our opinion it has no relevancy in the instant case. In the precedent case the facts precisely were that "Ali Haider appellant assailed the judgment of the learned District Judge in second appeal before the High Court. A learned Single Judge of the High Court sitting in Chamber, vide order dated June 28, 1978, without going to the merits of the case returned the memo. Of appeal solely on the ground that the appeal being filed without the copy of the judgment of the trial Court was incompetent. The appeal was presented before the Registrar of the High Court at Muzaffarabad on October 3, 1977, when the Court was not functioning thereat. The Registrar fixed the date October 5, 1977, for proper orders. On this date the reader made a note on the appeal that memo. Of appeal is not accompanied by the copy of the judgment of the Sub- Judge. The file thereafter was placed before the learned Chief Justice who issued notice to the respondents; requisitioned the record and the case was fixed for October 16, 1977. However, on February 19, 1978, an application, before the Court was moved by the appellant that at the time of institution of the appeal the copies of the decree and the judgment of the Sub-Judge were not available, the same may be allowed to be placed on record. The learned Chief Justice on this application passed the order 'Copy of the judgment and decree presented today'. In this view of the matter it was opined by the learned Judges that "It required consideration whether in the circumstances of this case it can be said that the Court had impliedly dispensed with the copy of the judgment of the trial Court. On October 5, 1977, a note was appended by the Reader that the appeal is not accompanied by the copy of the judgment of the trial Court. At that time 28 days were still to go towards limitation for filing the appeal and if the appellant would have been asked by the Court to file the copy of the judgment of the trial Court, it could be done within time. In this view of the matter the Court and not the appellant was at fault and for that reason implied dispensation of copy of the judgment of the trial Court will be presumed and even otherwise too the appellant cannot be allowed to suffer for the fault of the Court.
12. Almost the same principle was enunciated in AIR 1930 Rangoon 235 relied by the learned counsel for the appellant.
13. There is yet another reported case of this Court titled Sawar Khan and 2 others v. Noor Alam and another 1985 CLC 1082 wherein my lord Sardar Said Muhammad Khan, J. (as he then was) speaking on behalf of the Court observed at page 1084 para. No,6 in the following way:- "We are of the opinion that the principle laid down in the All Haider Shah v. Ghulam Muhammad 1981 CLC 359 is fully applicable to the facts of the present case, because in the present case too, despite the note of the Reader to the effect that copy of the judgment of the trial Court was not filed with the appeal, the Court issued the notice to the opposite-party. This implies that the High Court dispensed with the copy of the judgment of the trial Court. It may be further stated that it depends upon the circumstances of each case as to whether the Court impliedly dispensed with the copy of the judgment of the trial Court or not. Where despite the note of the Reader to the effect that the memo. Of appeal was not accompanied by the copy of the judgment of the trial Court, the Court chooses to issue notice to the opposite-party. It would be deemed that the Court condoned the defect, which, of course, it has the power to do under Order XLI, Rule 1 of the C.P.C."
14. In the above-cited case the facts precisely were that a note was made by the Reader that the memo. Of appeal was not accompanied by the copy of the judgment of the trial Court; but despite that notices were issued to the respondents by the Court which meant that the Court impliedly dispensed with the copy of the judgment of the trial Court. If, despite being conscious of the absence of the copy of the judgment of the trial Court, the appellate Court issues the notices to respondents; it will be deemed that the defect of non-filing of the copy of the judgment of the trial Court was condoned. But in the case before us no such eventuality, as said earlier exists. So the above authority has also no relevancy to the facts of the present case.
15 . In the case reported as Ali Zaman v. Qasim Jan and 3 others PLD 1984 Azad J&K 61 cited and relied by the learned counsel for the respondents has also no relevancy to the facts for the present case. In the above case the proposition that came to be considered by the High Court was precisely this that what would be the effect of non-filing of certified copy of decree-sheet along with the appeal before the High Court and in this connection it was held by the learned Judge in the High Court that memorandum of appeal ought to be accompanied by a copy of decree and the rule is imperative and the Court could not dispense with it.
16. In view of the above discussion in our view the High Court committed no illegality in dismissing the appeal filed by the appellant as being incompetent. The appeal, therefore, merits dismissal and the same stands dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.