' In this appeal Muhammad Habib plaintiff/appellant assails the judgment and decree, dated 21-6- 1997 passed by the learned Additional District Judge, Khanewal, who dismissed the appeal brought against the judgment and decree, dated 28-9-1996 (taking it to have been pronounced on 7-3- 1997) whereby the suit for specific performance of contract brought by the appellant against Khairo predecessor-in-interest of respondents Nos. 1 to 5, has been dismsised.
2. Brief facts leading to the institution of the present appeal are that appellant/plaintiff brought the suit for specific performance of contract in respect of land measuring 22 Kanals situated at Chak No, 11/A-H, Tehsil and District Khanewal on the basis of oral agreement to sell, dated 21-4-1990 arrived at between Khairo predecessor-in-interest of respondents Nos. 1 to 5 (defendants) and appellant/plaintiff, according to which former was to transfer the land to the appellant/plaintiff by 19-10-1990. The oral agreement to sell was made before the Civil Judge, Kabirwala in a civil suit pending before him. Subsequently, as Khairo refused to transfer the land to the appellant, the present suit was instituted. However, Khairo also brought a suit for declaration that the oral agreement to sell was illegal, void and result of fraud. Both the suits for some period remained consolidated and later on those were separated and the proceedings were taken up independently. However, vide order, dated 11-4-1996, it was ordered that the present suit be decided after the decision of the suit for declaration. On 28-9-1996, the suit for declaration was decreed in favour of the legal heirs of Khairo. Resultantly, the present suit for specific performance was also taken up and vide the judgment and decree, dated 28-9-1996 was dismissed. In the present appeal Appellate Court dismissed the appeal on technical grounds viz. Being time-barred, the certified copy of the judgment, dated 28-9-1996 not supplied and court-fee having not been provided properly and the same being deficient.
3. Learned counsel for the appellant has contended that the appeal could not be filed before the learned lower Appellate Court against the judgment and decree of the trial Court in time, because on coming to know that the suit had been dismissed vide the judgment, dated 28-9-1996, they also came to know that the decree-sheet had not been prepared, for which they moved the application and the decree-sheet was prepared on 7-5-1997; and, therefore, the time spent for getting copies thereof would be available to the appellant for extending the same and as such the appeal which was instituted on 8-5-199' was instituted within time. He has referred to Jagat Dhish Bhargava, Appellant v. Jawahar Lal Bhargava and others, Respondents AIR 1961 Supreme Court 832 (V 48 C 134) wherein it is observed as follows:--- "Where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and the decree before the decree drawn up, as he has done all that he could and has made a proper application for obtaining the necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the cetified copy of the decree but also for the drawing up a decree itself. The time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree."
' In the instant case, the appellants admittedly did not make any application for obtaining certified copies of the judgment and decree just after 28-9-1996, when those were passed by the lower Court. Rather, they have taken up the plea that they came to know about this fact on 5-7-1997 and it was then that on their application the decree-sheet was prepared and they obtained the certified copies and tiled the appeal. There is no explanation as to why they did not apply for even the copy of the judgment, dated 28-9-1996 during that period. The copy of the memo. Of appeal filed before the Appellate Court shows that the judgment and decree was challenged therein was shown to be passed on 7-5-1997. This speaks of glare negligence on the part of appellant taking any effort to proceed against the aforementioned judgment and decree, challenging the same before the High Court. They obtained the certified copies of the judgment and decree, dated 28-9- 1996 in the other connected suits and filed the appeal in time, and, therefore, it seems unplausible that they were not in the knowledge of passing of the decree and judgment in the instant case. The aforementioned authority is not applicable. Only in cases where the decree-sheet is not prepared by the Court and the parties are not at fault for the same, it can be said that they are entitled to the extension of time and that position could only be maintained when the application for obtaining certified copy of the judgment, at least, would have been made in time.
4. From the above discussion, it is clear that the appeal against the judgment and decree of the trial Court was not filed within time. It is also an establihsed fact that even the certified copy of the judgment was not filed with the appeal instituted before the learned Appellate Court and on that account also the appeal becomes not maintainable in view of the provisions contained in Order XLI, Rule 1, C.P.C.
5. The Appellate Court also dismissed the appeal against the appellant on the ground that the proper court-fee had not been provided. An application by appellant was made to the Appellate Court for allowing extension in time to make good deficiency of the court-fee and another application praying that the court-fee already deposited in the treasury on 9-5-1997 by the appellant be treated to have been paid within time. Both these applications were separately disposed of by the Appellate Court vide order dated 21-6-1997 and it refused to accept both these applications. While disposing of the appeal, it was found that the court-fee was deficient and the appeal was also not maintainable on that score. In the circumstances of case, the same finding holds good. As held above, the appeal has been found time-barred; and, therefore, the submissin of application for extension of time and the application praying to consider the court-fee already deposited by that time to have been paid in time, becomes immaterial. However, as the appeal was filed belatedly and the appellant had sufficient time to depsoit the court-fee, he paid the court-fee of Rs,5 on the memorandum of appeal showing it to be exempt from court-fee, whereas he had, no doubt, as to what was the court-fee to be paid. The ground for not paying the proper court-fee was advanced to the effect that it was inadvertently done. The same is not apparently tenable. The conduct of the appellant had been contumacious leaving no reason for the Court to show any indulgence to extend the time. Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others (1997 SCM R 919) has been rightly relied upon. It is observed therein as rightly follows:-- "9. In the present case, the petitioner had filed first appeal against a money decree. There does not exist any doubt as to the question of payment of court-fee, as it is to be paid ad valorem on the decretal amount. But the petitioner, in spite of the above clear legal position, opted to file the appeal with Rs,10 court-fee. Even after the objection was raised by respondents Nos.1 and 2, the petitioner in the above-quoted para. 7 of the rejoinder, took the plea that no court-fee was payable though after the expiry of more than one month, he paid the deficit court-fee as a measure of abundant caution. In our view, the learned Judge in Chamber was justified in concluding that the petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend the time. We do not find any infirmity in the impugned judgment.
Leave is, accordingly, refused."
6. In view of the above discussion, the provision of law on the point stands unchallenged and I uphold the findings of the Appellate Court in this behalf.
' Consequentially, the appeal is found to be not maintainable and the same is dismissed in limine.