This revision petition is directed against the order dated 8-8-1975 whereby Majlis-e-Shoora, Kalat returned the petitioner's appeal for amendment and presentation alongwith the decree-sheet.
2. Briefly narrated the foots of the case are that a suit foe partition of land and water was filed in the Court of Nazim, Turbat, which was forwarded to the learned Qazi for decision. On 16-12-1974, the Qazi of Turbot (District Makran) passed a decree in favour of the respondent partitioning the property. He also ordered that the possession of half share of the property should be handed over to the respondent.
The appellant feeling aggrieved by the decree of the learned Qazi pre--feered an appeal to Majlis- e-Shoora which was within time. However, the memo. Of appeal was not accompanied with a copy of the decree-sheet. The Majlis-e-Shoora therefore returned the appeal to the petitioner within the meaning of Order XLI, rule 3, C. P. C. And directed that the same should be amended and refiled within 90 daps alongwith a copy of the decree---sheet.
4. The contention of the learned counsel for the petitioner is that the order of the Majlis-e-Shoora whereby the appeal was returned and it was ordered that it should be amended was illegal and that Majlis-e-Shoora should have kept the appeal pending and asked the learned Qazi to prepare the decree-sheet and supply its copy to the petitioner so that he could file the same alongwith the appeal. According to him the provisions of Order XLI, rule 3, C. P. C. Had been misinterpreted by the learned Qaai. In support of his contention he has relied upon jegot Dhish Bhargava v. Jawahar Lal Bhargava and others (A I S 1961 SC 833), which is a case having somewhat similar facts. In this case it was held that where a decree was not drawn up immediately after the judgment was pronounced and a litigant feeling aggrieved by the decision applied for the certified copy of the judgment and the dome before the decree was drawn up the time spent in obtaining the copies most necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree 'itself. The time thus taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy after the judgment was pronounced would be treated as a part of the time spent in obtaining the certified copy of the said decree. In this ruling it has also bean held that keeping in view the provision of Order XLI, rule 1, C. P. C. The memorandum of appeal was necessarily to be accompanied with a certified copy of decree. Placing reliance on this ruling in which the discussion is on a point which is not directly and substantially involved in this case, Mr. Basharat Ullah, the learned counsel for the petitioner argued that the learned Majlis-e-Shoora should have ordered the learned Qazi to prepare the decree- shoot which could be filed alongwith the memo. Of appeal but memo. Of appeal Itself could not be returned to the petitioner as there was no question of any amendment because the memo. Of appeal had been drawn up properly. While, discussing the above judgment he also invited my attention to the judgment of the High Court passed in the same case from which the above appeal to Supreme Court had emanated. The High Court of Punjab in his judgment reported in AIR 1960 Ph. 247 had held that in such cases where the decree-shoot had not been filed along--with the memo. Of appeal the proper course was to give a litigant desirous to file appeal time to apply to the lower Court to prepare the proper decree sheet so that a copy of the same could be obtained and filed alongwith the appeal. I do not think that learned Qazi has deviated from the ,principle.
However he directed the petitioner to refile appeal after due amend--ment which was not done in the above-cited case. In m' opinion he had agood reason for mating such a direction and I shall be presently dealing with II.
The factual position is that under Order XLI, rule 1, C. P. C. It is in--cumbent upon the appellant to file a copy of the decree appealed against alongwith the memo. Of appeal and in case it is not so accompanied the memo. Of appeal would not be considered having been properly drawn up.
Where the memorandum of appeal is not properly drawn up the provisions of Order XLI, rule 3, C. P.
C. Are attracted and there are two courses open to the appellate Court. The first course is that the appeal way be rejected while the second course is that the appeal may be returned for refining after amendment within the time to be fixed by tile Court. In the instant case since the appeal had been filed only against the judgment and not against the decree which had not been drawn up u a consequence of the judgment therefore the words "appeal against the judgment and decree" bad not been inserted in the memo. Of appeal The Majlis-e-Shoora was therefore justified in holding that the memo. Of appeal had not been properly drawn up as required under Order XLI, rule 1, C. P.
C as firstly the words "appeal against decree and judgment did not occur in the memo. Of appeal and secondly because the memo. Of appeal was not accompanied by the decree-sheet. The Majlis-e-Shoora was therefore justified in ordering amendment of the appeal and its presentation after amendment within 90 days.
4. While ordering amendment and presentation of the appeal within DO days the Majlis-e-Shoora also imposed a cost of Re. 300 on the petitioner considering that the respondent had to travel all the way from Turbat to Mastung which is very expensive and difficult journey. He also had to engage a counsel to conduct the case but he could not achieve any tangible results due to the return of appeal. The learned counsel for the petitioner also feels aggrieved by the order imposing costs. According to him it was fault of Qazi that he did not prepare the decree-sheet, and therefore his client should not have been burdened with costs. In my opinion the argu--ment of the learned counsel is fallacious. In case the learned Qazi had not drawn up the decree-sheet by the time the appeal was filed the petitioner should have either waited till the decree-sheet had been drawn up and in case learned Qasi has inadvertently omitted to draw up the decree an application could be made to him in this connection. The petitioner showed undue haste and impatience. Instead of inviting the attention of the learned Qasi to prepare a decree-sheet and give him a copy thereof, he preferred an appeal only impugning the judgment which was apparently incompetent, and was therefore rightly returned keeping in view the provisions of Order XLI, rule 3, C. P. C. Which were undisputedly applicable to the case.
5. For the foregoing reasons. I do not find any substance in this petition which is hereby dismissed with costs.