' The judgment and decree in this case was passed by the learned trial Court on 27-5-1972 dismissing the suit of the appellant for grant of permanent injunction. The appeal filed before the learned District Judge, Multan was not accompanied by certified copies of the judgment and decree passed by the learned trial Court. An application was, however, filed along with the appeal to dispense with the filing of the copies thereof on the ground that the same had not been supplied as yet by the copying agency. This application was submitted on 29th of May 1972, when the appeal was filed. The record, however, shows, as found by the learned lower appellate Court that necessary application for supply of copy of the judgment as well as of the decree was made on 14- 9-1972 which was supplied to the appellant on 11-10-1972. It means, that at the time when the appeal was filed and the application, as referred to above, was submitted, no application whatsoever for supply of certified copies of the judgment and decree had been made.
2. The learned Additional District Judge by his order dated 15-1-1975 has dismissed the appeal being incompetent not being accompanied by copies of the judgment and decree. It has been argued on behalf of the appellant that since notice in this appeal was issued to the respondents, therefore, admission of a defective memorandum of appeal would operate as a decision and bar a later objection. Reliance in this respect has been placed upon Mst. Fazl-unNissa v. Didar Hussain
(1) and Khair Muhammad Nizamani v. Abdul Qudus (2). The appeal before the learned District Judge, as mentioned above, was filed on 29-5-1972 against the judgment and decree passed by the learned trial Court on 27-5-1972. It was presented before the learned District Judge,
(1) AIR 1927 Lah. 451 (2) P L 1) 1965 Kara 367 Multan on the same date who called the original record for preliminary arguments, for 3-e-1972. He specifically mentioned in his order that since the copies of the judgment and decree had not been filed, therefore, the same should be appended along with the memorandum of appeal on the said date. He also issued notice in the stay application for the same date. He further passed order transferring the case to the Court of the Additional District Judge, Multan for disposal. The record of the case had not been received nor the respondents had been served upon in the stay application for 3-6-1972. The case was, therefore, adjourned to 11-7-1972 with a notice to the respondents in the stay application. The case was thereafter adjourned to 13-10-1972 for arguments on the stay application after the record had been received. Thereafter the case was adjourned to 15-1-1973, on the request made by the counsel for the parties. As mentioned above: since copies of the judgment and decree passed by the learned trial Court were delivered to the appellant on 12-10- 1972, therefore, the same were submitted before the learned lower appellate Court on 13-10-1972, after the limitation period had elapsed.
' The facts of the first case relied upon by the learned counsel for the appellant are that defective memorandum of appeal was filed before the High Court being not accompanied by copy of the order passed on the preliminary issues. Two preliminary issues in that ease were struck as to the frame of the suit and the valuation, and were decided by the first subordinate Judge who handled the case. The final judgment was written by his successor with no reference to the order of his Predecessor on the said two issues. The decree was consequently Passed in favour of the plaintiff.
The defendant who was appellant before the High Court had taken exception to the order passed by the first subordinate Judge on the two preliminary issues referred to above in his memorandum of appeal. The respondent in the appeal before the High Court raised objection that the appeal being incompetent was liable to be dismissed as it was not accompanied by the copy of the Order on the preliminary issues though the said order had been attacked in the memorandum of appeal.
The appeal as such was dismissed after having found to be incompetent. During the arguments the leaved counsel for the appellant referred to certain cases particularly Mst. Kausilla Kuer V. Mt.
Sukhlei and another (I) dealing with the question as to whether question of defective memorandum of appeal can operate as decision and bar a later objection. In those cases no copy of the judgment had been attached with the memorandum of appeal. It was observed that where the admitting Judge could not have failed to realize the situation by admission of appeal must be held to have exercised his discretion under Order XLI, rule 1 dispensing with the production of certified copy of the judgment. The second case, PLD 1965 Kar. Deals with non-production of certified copy of the Controller's order before the lower appellate Court. It was found that production of copy of such order in appeal filed under section 15 of the West Pakistan (urban Rent Restriction) Ordinance, 1959 was not fatal, 3 Both the authorities referred to above and relied upon by the learned counsel for tee appellant do not help him. It was never found in Al R 1927 Lah. That production of certified copy of the decree could be dispensed with as provided in Order XLI, rule 1, only copy of the judgment can be dispensed with while that of the decree has to be appended with the memorandum of appeal and its production cannot be dispensed ;with. In AIR 1927 Lab. It was only copy of the order and not
(1) AIR 1923 Ail. 579 that of the decree whose production was considered to have been dispensed with after appeal had been admitted to regular hearing.
In the present case copy of the judgment as well as decree was never appended with the memorandum of appeal. It was averred in the application filed along with the appeal that since the said copies had not been supplied by the copying agency, therefore, they would be filed as soon as they are made 4vatiab1e, while as a matter of fan no such application for supply of the said copies had been made on the date when the appeal as well as the application was filed. As mentioned above, application for supply of meshed said copies was made after 3} months of filing of the appeal and it is obvious that by the time when the application was filed limitation period had elapsed. According to law certified copy of the decree has to be appended alongwith memorandum of appeal. If an application is made for supply of such copy and the same is not made available within time as prescribed by law for filing appeal then appeal can be filed even thereafter on the supply of such copy and the period spent in obtaining the copy of the decree would be accounted for while computing the period of limitation. If application has been made for supply of copy of judgment and the same has not been made available at the time of presentation of appeal then the same can be filed even in its absence seeking dispensation of the same on the ground that the Same not been supplied so far by the copying agency. It does not, however, mean that memorandum of appeal can be filed in the absence of copy of the judgment and decree having not been even applied for. Production of copy of judgment by the appellate Court can be dispensed with only in case application for supply of copy thereof has been made or there is yet time to make application therefor. This view gains strength from Nur Din v, Secretary of State Girdhari La v. Rattan Chand (2), Sh. Abdullah v. Behari Lai and others (3) and Chetanlal Purshottarn Singh Daoo v. Dan G. S. Gupta and others (4). It has been found in all these cases referred to above that omission to attach copy of the decree is fatal to appeal and omission to attach copy of the judgment which Court has not dispensed with makes the appeal incompetent.
4. The learned counsel has also relied upon G. I. P. Railway Co. v. Radhakisan Jaikisan and another
(5) in order to show that where copy of the judgment has not been filed along with the appeal and the Court has admitted the appeal in its absence then such order should be considered to have dispensed with the copy of the judgment, The principle of law as laid down in the judgment relied upon by the learn counsel for the appellant may not be disputed but the facts of that case are quite different from the-present one.
' In the present case copy of the decree which cannot be dispensed with under the law was never filed along with memorandum of appeal within time. Even otherwise I don't find any order from the record maintained by the lower appellate Court that notice was ever issued in appeal to the respondents, it was only issued in the application for grant of temporary injunction. If for arguments sake it is accepted that notice in the stay application should be deemed to have been issued in appeal as a ell then the order passed in this behalf by the lower appellate Court would be deemed to have dispensed with,
(1) A 1 R 1927 Lah. 49 (2) AIR 1936 Lah. 293
(3) AIR 1926 Lab. 638 (a) AIR 1938 Nag. 233
(5) AIR 1926 Nag. 57 the copy of the judgment and not copy of the decree which was submitted in the Court after lapse of time prescribed by law.
5. So far as the case reported in PLD 1965 Kai.. Is concerned the same is not applicable to the facts of the present case. Appeal in that case was preferred under section i5 of the West Pakistan (urban Rent Restriction) Ordinance an under that provision it is not necessary to append certified copy of the Controller's order along with the memorandum of appeal as held in Muhammad Dodd v. Abbas All (1). The very provision as contained in section 15 (3) of the Rent Restriction Ordinance makes it obligatory for the appellate Court to call for record before deciding this appeal and also in the absence of any provision requiring appellant to file copy of the impugned order, non-production of such. Copy would not be fatal.
6. As a result of the above discussion, 1 doesn't feel inclined to interfere with the order passed by the learned lower appellate Court dismissing the first appeal being incompetent. The second appeal having no force is hereby dismissed with costs.
(1) PLD 1975 Lab. 699