' MUHAMMAD YUNUS SURAKHVI, J.--This appeal, by way of leave of the Court, has been preferred against the judgment and decree passed by the High Court on 23-5-1998, whereby the appeal filed by the appellant, herein, was dismissed.
2. The necessary facts, forming the background of the present appeal, briefly stated, are that a declaratory suit regarding the suit land was filed by one Ghulam Rasool, son of Abdul Khaliq Butt, in the Court of Sub-Judge Haitian on 28-3-1985, against defendants 1 to 13. The predecessorsin- interst of the appellant and some other persons were originally arrayed as preform defendants in the plaint, however, on their application they were transposed as plaintiffs. The suit was to the effect that plaintiffs may be declared as owners of the suit land and the revenue entries regarding the suit land in favour of defendants were inoperative on the rights of the plaintiffs. A consequential relief by way of perpetual injunction was also sought for against the defendants that they should refrain from interfering with the suit land or transferring the same to any body. After necessary proceedings, the learned trial Court at the conclusion of the trial dismissed the suit filed by the plaintiffs vide judgment and decree, dated 31-10-1996. Against the aforesaid judgment and decree an appeal was filed by the appellant herein before the District Judge, Muzaffarabad which was made over to Additional District Judge for hearing and disposal. The learned Additional District Judge summoned the defendant-respondents and sent for record of the case. On 24-5-1997, an objection was raised from the opposite side that the appeal was incompetent due to non-filing of decree sheet along with the memorandum of appeal. The said objection sustained and the appeal was dismissed, as being incompetent under Order XLI, Rule 1, C.P.C. Vide the judgment and decree of the Additional District Judge, dated 21-1-1998, on the ground that the decree sheet of the trial Court was not attached with the appeal. The second appeal taken to the High Court was also dismissed vide the impugned judgment and decree, dated 23-5-1998. Hence this appeal.
3. Arguing the case on behalf of appellant, it was vehemently contended by Syed Nazir Hussain Shah Kazmi, the learned counsel, that the High Court as well as the Courts below have fallen in error by dismissing the appeal, as being incompetent, due to non-filing of the decree sheet of the trial Court with the memorandum of appeal. The learned counsel submitted that the memorandum of appeal in the first instance was presented before the District Judge Muzaffarabad who vide order, dated 2-1-1997, entertained the appeal and made over the same to Additional District Judge Muzaffarabad for hearing and disposal. On the said date the learned Additional District Judge summoned the respondents and requisitioned the record and posted the case to 20-2-1997. On 20-2-1997, the service was not effected on respondents so previous order for their appearance was repeated and the case was posted to 9-4-1997. On 9-4-1997, the service having not been effected on respondents the previous order for their appearance was repeated once again and the case was adjourned to 24-5-1997. However on 9-4-1997, a note was appended by the Reader of Additional District Judge to the effect that decree sheet of the trial Court having not been filed along with the memorandum of appeal and also that the whereabouts of the respondents were not properly entered in the memorandum of appeal, therefore the respondents could not be served. On 24-5-1997, while taking due notice of the note made by the Reader it was ordered by the Court that if the relevant particulars are supplied by the appellant, the respondents may be summoned by 7-7-1997. Even on this date the needful was not done and the counsel for the appellant sought an adjournment from the Court to do the needful and for the said purpose the case was fixed for 11-8-1997. It was made clear to the learned counsel for the appellant on 7-7- 1997 that appeal in its present shape, was incompetent due to non-filing of the decree sheet of the trial Court and also for non-providing the relevant particulars of respondents. However the case was adjourned to 11-8-1997, on the request of the counsel for the appellant. In the note appearing in the order, dated 11-8-1997, it transpires that the Court further observed that as per directions the appellant neither entered the whereabouts of respondents in the memorandum of appeal nor appended the relevant decree sheet. Ultimately on 29-5-1997, another appeal was filed along with all the relevant documents. The learned Additional District Judge adjourned the case to 9-9-1997 observing as to whether the appeal was competent. Thereafter, the couple of adjournments were granted for arguments and ultimately the appeal was disposed of on 21-1-1998, whereby the appeal was dismissed. The learned counsel further contended that all the Courts below lost sight of the fact that issuance of process to respondents by the first appellate Court amounted to implied dispensation of the copy of the decree sheet of the Court of first instance, as such the High Court erroneously dismissed the appeal. In the alternate it was also argued by the learned counsel that a duty is cast upon the Courts to see that the appeal is accompanied by all the necessary documents, and if any, omission, making the appeal defective, on the part of appellant is not brought to his notice and the appeal is admitted for hearing it may be presumed that the learned Judge had exercised the discretion in favour of appellant in dispensing with the copy of the decree sheet to be placed along with the memo of appeal. The appeal, therefore, subsequent to the issuance of process, could not be dismissed on the ground that it was not accompanied by the relevant document because in the first instance implied dispensation of such a copy shall be presumed and secondly that the fault lies with the Court for which none-else could be condemned.
The learned counsel in support of his contentions cited reported cases Ali Haider Shah v. Ghulam Muhammad NLR 1980 SCJ 519 and Maung Po Hlaing v. Ma Phee and others AIR 1930 Rang. 235
4. On behalf of respondents 1, 2 and 4 to 16 it was argued by Ch. Abdul Aziz, the learned counsel, that for a valid appeal before the District Judge the memorandum of appeal must be accompanied by a copy of the judgment and decree sought to be appealed from and it was enjoined upon the plaintiff-appellant to be vigilant enough to see that he presented a valid appeal accompanied by all the relevant documents. The learned counsel submitted that the provisions of Order XLI, Rule 1, C.P.C., being mandatory in nature, should have been strictly complied with and the memorandum of appeal must have been accompanied by the copies of the relevant documents.
It was elaborated that appellant under law was required to append with his memorandum of appeal two documents i,e, copy of decree appealed from and the copy of judgment upon which the decree is founded. The learned counsel argued that the appellant, while assailing the judgment of the trial Court preferred an appeal before the District Judge merely against the judgment of the trial Court and not against the decree, whereas the appeal was competent only against the decree and not the judgment. The subsequent appeal, having been filed after a considerable delay, was barred by time and the same was rightly ignored by the first as well as the subsequent appellate Courts. The learned counsel pressed into service the submission that the counsel for the appellant relied on those authorities which have no relevancy to the facts and circumstances of the instant case as in both the cases referred to by the learned counsel for the appellant the appellate Court either dispensed with the filing of the judgment of the trial Court expressly by by necessary implication as a valid discretion stood vested in the appellate Courts but the present case having distinct facts could not have been tested on the touchstone of the principle enunciated therein.
While concluding his contentions the learned counsel maintained that in so far as the filing of the decree of the trial Court sought to be appealed is concerned, the Court had no discretion whatsoever to dispense with or to entertain the appeal along with the relevant documents at the time when the same had become barred by limitation. The learned counsel in support of his contentions cited reported cases titled Muhammad Amin Shah v. Mehtab Din and another 1995 SCR 390, Mst. Khursheed Bibi v. Ahmad and 2 others PLD 1979 Lah. 846, Faquir Muhammad awl 48 others v. Province of Punjab through Collector/Deputy Commissioner and 4 others PLD 1993 Lah.
439 and Rana Allah Ditta v. Muhammad Shafi and others 1990 MLD 2094.
5.. Raja Muhammad Hanif Khan, the learned counsel for respondent No,20, submitted that even otherwise the appeal filed by the appellant against his client was incompetent due to non- impleading him in the line of respondents, fully knowing the fact that the decree had been passed in favour of other respondents as well as respondent No,20 by the trial Court, but all the same he was 'hot impleaded in the line of respondents in the Court of District Judge. However in the High Court his client was arrayed as one of the respondents as such the omission on the part of the appellant amounted to an illegality which was not curable. The learned. Counsel in support of his above contentions' relied on Mst. Maqbool Begum etc. v. Gullan and other PLD 1982 SC 46, Murad Begum etc. v. Muhammad Rafique etc. PLD 1974 SC 322 and an unreported case of this Court titled Jafar Ali Shah v. Mazhar Ali Shah and others (Civil Appeal No,8 of 1985 decided on 14-10-1985).
6. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. It is indeed correct that under Order XLI, Rule 1, C.P.C. The appellant is required to append with the memorandum of appeal two documents i,e, copy of decree appealed from and a copy of judgment upon which decree is founded. The appellate Court has power to dispense with the copy of the judgment but has no such power to dispense with the copy of the decree. It is absolutely essential that the memorandum of appeal should be accompanied by a copy of decree appealed from. The Court has no power to dispense with the provision regarding the presentation of the copy of the decree. Therefore, an appeal presented without copy of decree is not a valid appeal and this is so even if decree has not yet been prepared or the appellant is under the erroneous impression that it has not yet been prepared.
Similarly an appeal which is filed with a copy of judgment alone and without copy of decree cannot be deemed to have been validly presented. It must be rejected if copy is not filed within the prescribed limitation period. If the appellant does not file a copy of decree sheet even after objection by the Court and after an undertaking was given by his counsel that it would be done the appeal must be dismissed. In Mst. Khursheed Bibi v. Ahmad and 2 others PLD 1979 Lah. 846 it was observed:-- "The non-filing of a certified copy of the decree sheet along with the appeal filed before the lower Appellate Court especially even after the objection had been raised by the office and the counsel for the respondents (appellants in the lower Appellate Court) had undertaken to file the same manifestly established the contumacious neglect to comply with the mandatory provisions of Order XLI, Rule 1, C.P.C. There is no lack of authority on the point that an appeal under 'section 96, C.P.C. Is only competent when accompanied by a certified copy of the impugned decree.
Reference may be made in this regard to the authorities cited on behalf of the appellants. It may be pertinently pointed out here that appeal before the lower Appellate Court was therefore clearly incompetent.'
7. In a case reported as Faquir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commissioner and 4 others PLD 1993 Lah. 439 it was observed at page 442 in a following manner:-- "The learned counsel for the respondents has rightly canvassed at the Bar that while presenting memorandum of appeal, copy of judgment can be dispensed with by the Court but not the decree.
And the appeal non-accompanied by the decree sheet cannot be entertained and if subsequently the same is allowed by the Court that would be subject to mischief of Limitation Act."
' While concluding it was further observed as under:-- "The ratio of the cited authorities is that the appellate Court is empowered to dispense with the copy of the judgment and the requirement that a copy of the decree should be filed alongwith the memorandum of appeal was mandatory and that in absence of copy of such decree, the appeal' would be incompetent."
8. In another case reported as Rana Allah Ditta v. Muhammad Shafi and others 1990 MLD 2094 Mr. Justice Khalid Paul Khawaja observed at page 2096 of the report in the following manner:- "A simple question which requires determination is as to whether the omission on the part of the petitioner to mention in the memorandum of appeal that the appeal was actually directed against the decree was the result of inadvertence and thus a bona fide mistake or it was a case of carelessness and negligence bordering on mala fides. A bare reading of the memorandum of appeal would show that the petitioner was fully conscious of the fact that a decree had been passed against him. Despite that nowhere in the said memorandum he brought the said decree under challenge. Not a word was uttered to question the validity of the said decree. On the contrary, the grounds enumerated in the appeal clearly show that the vires of the 'order, dated 14- 2-1989' were being assailed and the petitioner was praying for setting aside the said order and not the decree. That is why he had appended with the appeal an uncertified copy of the order/ judgment. The memorandum of appeal was drafted by a considerably senior Advocate who knew or was supposed to know the implications and repercussions of such omission and therefore, it is not difficult to say that appeal was prepared in a perfunctory and haphazard manner which clearly amounted to negligence. A negligent act has never been and should never be considered to be a bona fide act. Consequently I am constrained to hold that the omission in question is not a bona fide mistake and as the appeal was not directed against the decree passed by the trial Court, it was rightly dismissed by the learned lower appellate Court as being not maintainable."
9. In a case reported as Muhammad Amin Shah v. Mehtab Din and another 1995 SCR 390 it was observed by this Court at page 392 as under:-- "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 to a decree."
10. Raja Muhammad Hanif Khan, the learned counsel for respondent No,20, as said earlier, submitted that the appeal filed by the appellant, herein, should have been dismissed for non- impleading the necessary parties in whose favour the decree had been passed by the trial Court.
According to the learned counsel the appellant was so much negligent that at the time of filing the memo of appeal he did not bother to look into the names of respondents in whose favour the decree had been passed, as such the appellant himself and none-else was responsible for filing the incompetent appeal. Since the aforesaid point has not been resolved by the High Court, therefore irrespective of the merits of the contention raised by Raja Muhammad Hand Khan, we refrain from dismissing the appeal on the aforesaid ground as the appeal is liable to be dismissed in consequence of our finding recorded in the earlier part of the judgment.
11. The net-result of the above discussion is that the High Court committed no illegality in dismissing the appeal as being incompetent. The appeal, being devoid of any force, stands dismissed with costs.