' MAMOON KAZI, J.---Mst. Tajjan, who is now represented by the respondents, filed a civil suit for declaration that she was owner in possession of land measuring 240 Kanals situated in Village Vedad, Tehsil Alipur, District Muzaffargarh. The appellants contested the suit but it was ultimately decreed. Vide judgment dated 22-1-1976 and it was held that Mst. Tajjan had become full owner of the land on payment of its price in terms of Central Government's notification dated 28-12-1959.
The appellants filed appeal before the District Judge, Muzaffargarh, but the same was dismissed vide judgment dated 19-4-1977. The appellants then filed a second appeal before the Lahore High Court on 12-5-1977.
2. With the appeal, a miscellaneous application was filed seeking exemption from filing copy of the judgment of the trial Court as required by O.XLII, R.2. C.P.C. On 1-6-1977 the appeal was admitted for regular hearing and on the miscellaneous application notice was ordered to be issued to the respondents, but thereafter, the case was not posted before the Court for further orders.
Subsequently, on 6-6-1982, when the appeal came up for regular hearing, an application under section 151, C.P.C was moved on behalf of the appellants wherein it was claimed that copy of the judgment of the trial Court had been handed over to the counsel in May, 1977, but the same was not placed on record. Permission was therefore sought to place such copy on record of the case.
The said application was granted by the learned judge in Chambers on 1-11-1982, subject however, to all just exceptions.
3. During regular hearing of the appeal, a preliminary objection was raised on behalf of the respondents that the appeal was defective as it had been filed without a certified copy of the judgment of the trial Court. Although such copy had been placed on record by the Court subsequently, vide order dated 1-11-1982, but by then the appeal already had become time-barred.
The objection was upheld by the learned Judge as it was held that the appellants had taken contradictory stands as earlier, their contention was that the copy of the judgment of the trial Court was still under process. The appeal was, therefore, dismissed along with the miscellaneous application, seeking exemption.
4. Leave was granted by this Court to examine whether under the circumstances of the case, the learned Judge in Chambers was justified in dismissing the second appeal as time-barred.
5. Mr.M. Khalid Alvi, learned counsel for the appellants has argued that even if the appeal was initially filed without a certified copy of the judgment of the trial Court as required by Order XLII, R.2, C.P.0 the deficiency if any, being made up in terms of the order dated 1-11-1982, the appeal could not be dismissed as incompetent. Mr. A.R. Shaukat, learned counsel for the respondents, on the other hand, has fully supported the impugned judgment.
6. Order XLII, R.1 provides that, the rules of Order 41 shall apply, so far as may be, to appeals from appllate decrees. Order XLI, R.1 C.P.0 requires that a memorandum of appeal must be accompanied by a copy of the decree appealed from and unless the Appellate Court dispenses therewith, by the judgment on which it is founded. Rule 2 which was added to Order XLII by the Lahore High Court provides as under:- "2. In addition to the copies specified in Order XLI, Rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance unless the Appellate Court dispenses therewith."
The provisions noted above therefore, leave no doubt that in case of a second appeal, besides the copies specified in Order XLI, R.1 C.P.C. The memorandum of appeal must be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses with the same.
7. Learned counsel for the respondents has pointed out that the view consistently followed by the Lahore High Court has been that the requirements of Order XLII, R.2, C.P.C. Are mandatory, unless dispensed with by the Appellate Court. Reference has been made in this regard to Lakhmi Das v.
Mehar Chand (AIR 1923 Lah. 144 (1)), Mathra v. Ram Singh (AIR 1927 Lah. 747) and Moj Malu v. Sri Ram (AIR 1921 Lah. 73). In these cases, it was held that, in a second appeal, where copy of the judgment of the Court of first instance is not filed with the memorandum of appeal, until after expiry of the period of limitation prescribed for filing such appeal, the appeal should ordinarily be rejected as time-barred.
8. The same view appears to have been followed by the Courts in Pakistan after partition of the Indian Sub-Continent. In Suleman Khan v. Abdur Rahman (PLD 1959 Azad J & K 31), the High Court of Azad J&K declined to accede to the appellant's request to treat an appeal as cross- objection as it was not accompanied by copies of decree-sheet and judgment of the lower Appellate Court. But the Court was considering the requirements of Order XLI, R.1, C.P.C. However, this Court while dealing with a similar situation in S. Muhammad Ali v. Muhammad Sharif (1983 SCM R 299) upheld the judgment of the High Court, holding a second appeal as time-barred where the appellant had failed to supply a certified copy of the judgment of the trial Court within extended time granted by the High Court.
9.It is, however, pertinent to notice that, although, strict compliance with the provisions of Order XLII, R.2 has been made mandatory but, as is further indicated by the said provisions, the Court hearing the appeal has been empowered at the same time to dispense with filing of a copy of the judgment of the Court of first instance. This in contrast to the provisions of Order XLI, Rule 1, C.P.C.
Where, although, the appellant can be exempted from filing a copy of the judgment on which the appeal is founded but the Court cannot dispense with the filing of a copy of the decree. However, where permission is granted by the Court the same may either be granted by a formal order or it may proceed to hear the appeal without the aid of such copy. In Noor Muhammad v. Ghulam Muhammad (PLD 1978 Lah. 819), the High Court of Lahore while examining the import of the words "dispense with" has observed that such words used in Order XLI, R.I. C.P.C. In general sense would mean either to permit the want of certain thing or to do without it. It was further observed that the Court can either through an order dispense with such thing or it may exercise such power by hearing the appeal without the help of the certified copy. Thus, both the modes of exercise of power are permissible.
10. In the case of Akbar Khan v. Muhammad Razzaq (PLD 1979 SC 830), this Court while examining the provisions of Order XLII, Rule 2, C.P.0 has observed that although the provisions of the said rule are obligatory and the requirement is mandatory, nevertheless, the High Court has power to dispense with the same in its discretion. This question was once again examined by this Court in Mst. Safia Begum v. Taj Din (1993 SCM R 882) and the plea raised on behalf of the appellant was that although, certified copy of the judgment of the trial Court. As required by the said rule, was not filed but the appellant had tiled a miscellaneous application for dispensing with such requirement which had been left pending by the High. Court. Consequently, it was argued that the appellant could not be penalised by the omission of the Court. It was held by this Court that the prayer of the appellant should have been allowed and discretion should have been exercised in her favour.
11. The various judgments referred to by us indicate that although, under Order XLII, Rule 2, C.P.C. It is incumbent on the appellant to file certified copy of the judgment of the trial Court, but the rule is not inflexible as the Appellate Court has been empowered with discretion to dispense with such requirement. In the present case, no doubt, such permission was declined by the learned Judge in Chambers, but the application filed in this regard was kept pending before the High Court and was rejected only when the case had been finally disposed of. Earlier, the appeal was admitted without a certified copy of the judgment of the trail Court being placed on record. Subsequently. Such copy was filed by the appellants which was placed on record by the Court. No doubt, when such copy was filed, the period of limitation prescribed for filing such appeal had already expired, but since the Court had already permitted placing of such copy on record, it ought to have extended the time for filing such copy. When the Court is vested with power to exempt a party from performing a legal obligation, but such request is declined, and in the meanwhile the Court has permitted the period of limitation prescribed for performance of such obligation to expire, time must be extended by the Court to enable the party to perform such obligation, because no one can be made to suffer by any act of the Court. However, the learned Judge in the High Court appears to have completely overlooked this important factor. Therefore, in our view, the appeal was erroneously dismissed as time-barred.
12. In the result, the appeal is allowed and the judgment of the High Court is set aside. The appeal is remanded to the High Court for disposal on merits.
' There will, however, be no order as to costs in view of the questions involved in this case.