' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 23-10-1999, whereby the review petition filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that a suit was filed in the Court of Sub-Judge, Hattian, regarding suit land comprising survey No,186, measuring 1 Kanal, 10 Marlas, situate in village Kathama, Tehsil Hattian District Muzaffarabad, seeking declaration that the appellant-plaintiff had become owner on the basis of his adverse possession over the suit land. The plaint was rejected by the Sub-Judge under Order VII, Rule 11 of Civil Procedure Code. The appeal against the order of rejection of the plaint was also dismissed by the Additional District Judge on the ground that the appeal was incompetent because the same did not accompany the copy of the 'decree' of the Trial Court as required under Rule 1, Order XLI, C.P.C. An appeal was filed before the High Court which was also dismissed and the orders of the Courts below were upheld. The appellant filed a review petition in the High Court which was dismissed. Thereafter, an appeal was filed to this Court against the order of the dismissal of the review petition, which was accepted and the case was remanded to the High Court with the direction to decide the review petition afresh according to the observations made by this Court. The High Court again dismissed the review petition observing that although in the previous round of litigation Hidayatullah, the father of Abdul Aziz, appellant, herein, was not a plaintiff in any suit, yet he was 'appellant' in the appeal which culminated in decree, dated 10-1- 1990, as was apparent from the relevant file. Thus, it was observed that if the father of the appellant, herein, was not a plaintiff, that would not make any difference and the principle of res judicata would still be applicable; the learned Judge observed that the mere fact that a party was plaintiff or defendant or was appellant or respondent would not make any difference so far as the application of principle of res judicata was concerned. The learned Judge has also observed that the certificate given by the counsel for the appellant to file the review petition under Rule 43 of the High Court Procedure Rules, did not conform to the said rules and, thus, the review petition was incompetent on this sole ground. It has been further held by the High Court that as the appeal before the District Judge did not accompany the copy of the decree-sheet, the same was also incompetent. Thus, the review petition was dismissed.
3. Ch. Muhammad Ibrahim Zia, Advocate, the lamed counsel for, the appellant, has argued that the High Court has again incorrectly recorded that there was any appeal which was filed by Hidayatullah, the father on the appellant, herein. Thus, according to the learned counsel, the High Court has dismissed the review petition without applying its mind to the facts of the case. He has also contended that the High Court was also incorrect in holding that the certificate issued by the counsel for the petitioner-appellant did not conform to the requirements of the relevant rules of the High Court. He has argued that even if there is any defect in the form of the certificate, that being an irregularity would not render the review petition invalid. The learned counsel has contended that the policy of law is to decide the matters on merits instead on technical grounds.
He has referred to the following cases in support of his contentions:- ' In a case reported as Muhammad Munshi v. Mst. Rakiya Bi (1990 CLC 301), it has been held that non-compliance of Rules 14 and 15 of Order VI, C.P.C., by omitting to sign the pleadings does not render the pleadings invalid; the omissions are procedural defects which are only irregularities and do not adversely affect the institution of the original cause.
' In a case reported as Mst. Aziza Begum v. Muhammad Hussain Khan (1995 CLC 1578), it has been observed that an appeal can be treated as a revision and vice versa. It was also observed that the policy of law is to adjudicate the matters on merits instead on the basis of technicalities.
' The learned counsel for the appellant has further submitted that the High Court was also incorrect in holding that as the memorandum of appeal filed in the Court of District Judge did not accompany the copy of the decree-sheet, the same was not properly constituted. The learned counsel has referred to a case reported as Muhamamd Sharif v. Muhammad Sharif (1992 SCM R 1129), wherein it was held that the rejection of plaint under Rule 11 of Order VII, C.P.C., is appealable as a decree. Thus, according to the learned counsel for the appellant, it was not necessary for the appellant to file the copy of the decree-sheet along with the memorandum of appeal filed in the Court of District Judge, especially so when it was not issued to him because the same had not yet been prepared when the copy of the judgment was issued to the appellant.
4. We have given due consideration to the matter. So far as the finding of the High Court that the said certificate issued by the counsel for the appellant does not conform to the relevant rules is concerned, we are of the view that in the instant case, the review petition could not be dismissed on the said ground; after closely perusing the contents of the certificate which was issued by the counsel for the appellant, it can be safely said that although the certificate issued was not strictly according to the requirements of the relevant rules, yet at the same time the inadequate phraseology employed in the certificate is merely an irregularity which does not render the certificate as invalid. It may be observed that the total absence of the certificate to the effect that the judgment or order is fit for filing a review petition is altogether a different thing from a certificate in which somewhat inadequate language has been used or it is not strictly according to prescribed 'form'. Thus, we hold that in the instant case the certificate for filing the review petition was sufficient enough for the valid institution of the review petition.
5. The moot point in the case is as to whether the memorandum of appeal filed in the Court of District Judge did not accompany the copy of the decree-sheet, and, thus, the same was not validly instituted. It may be observed that under Rule 1 of Order XLI, C.P.C., it is mandatory for the appellant to file a copy of the decree-sheet along with the memorandum of appeal, non-filing of the copy cannot be condoned by the Court. The case of the appellant in his appeal, before the High Court was that he had applied for the issuance of the copy of the judgment and the decree but the copy of the decree-sheet could not be issued because the same had not been prepared as yet. If at all it was so, the proper course for the appellant was to have waited for the preparation of the copy of the decree and, thereafter, to file appeal; in that eventuality, he was entitled to the condo nation of delay, if any. However, in the instant case, it was recorded by the District Judge in his interim order, dated 10-11-1996 that the memorandum of appeal did not accompany the copy of the decree-sheet; two adjournments were given but needful was not done and the memorandum of appeal was rejected by him on 18-2-1997, inter alia, on the ground that the copy of the decree was not filed. Thereafter, the copy of the decree was filed after 147 days of the order of the Trial Court. Evidently, the aforesaid belated filing of copy of decree-sheet would not render the institution of the appeal before the District Judge as valid.
6. 'So far as the contention of the learned counsel for the appellant that the order of rejection of plaint under Rule 11 of Order VII, C.P.C., is appealable as a 'decree' is concerned, that would not help his case. After giving due consideration to his contention and considering the case reported as Muhammad Sharif v. Muhammad Sharif (1992 SCM R 1129), relied upon by him, we are of the view that the principle laid down in the aforesaid authority goes against the contention of the learned counsel for the appellant rather than supports him; because, if the order of rejection of plaint is appealable as a 'decree', it was all the more obligatory on the appellant to have filed the copy of the decree-sheet as was required under Rule 1, Order XLI, C.P.C. A reference may be made to the cases reported as Imam Gull v. Mst. Begum Ji (1980 CLC 530) and Rana Allah Ditta v. Muhammad Shafi (1990 M LD 2094), in support of the view that an appeal without following the decree-sheet is incompetent and entailed rejection on this sole ground. It may also be stated that according to the definition of word 'decree' under section 2(2) of C.P.C., the word 'decree includes an order of rejection of the plaint under Rule 11, Order VII, C.P.C. Obviously, the said definition does not mean that if the aforesaid order is appealable as a 'decree', the filing of copy of decree under Rule 1 of Order XLI, C.P.C., is not necessary. The authority cited by the learned counsel for the appellant did not say so, rather the same refers to the definition of the word 'decree'. It may be observed that if an order is not appealable as a decree but all the same it is appealable as an order, only one appeal is competent under section 104(2), C.P.C. However, if an order is appealable as a decree, more than one appeals are competent, subject to other provisions of the said Code. Thus, it was mandatory to file The copy of the decree along with memorandum of appeal filed in the Court of District Judge. It follows from this that the High Court could-dismiss the appeal filed by the appellant on this sole ground instead of adverting to other merits of the same. As there was no properly instituted appeal before the District Judge, the appeal before the High Court was incompetent. Therefore, the finding given by the High Court on the points other than the question of failure of the appellant to file the copy of decree-sheet need not be gone into by this Court, i,e,, as to whether the High Court was correct in applying the principle of res judicata in the instant case or the effect of the amendment in section 28 of the Limitation Act.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to 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.