' This petition for leave to appeal has been directed against the judgment and decree passed by the High Court on 30-6-2001, whereby the appeal filed by the petitioner herein was dismissed.
2. The necessary facts, giving rise to the present petition for leave to appeal, are that the plaintiff- respondent brought a suit for possession of land measuring 22 Kanals and 10 Marlas, out of land measuring 326 Kanals and 11 Marlas, comprising Survey No,136, Khata No,536, Khewat No,57, situate in village Lehri, Tehsil and District Mirpur, in the Court of Additional Sub-Judge, Mirpur, on 8-12-1993, claiming therein that he was owner of the said land which he had purchased from other owners. He further stated that mutation was sanctioned in his favour but due to carelessness of Revenue Department no entry was made in the Revenue Record. The defendants-petitioners got their names incorporated in the cultivation column of "Jamabandi" and they trespassed the land and forcibly occupied the same. The defendants-petitioners wanted to create plots and construct road.
After the trial of the suit, the trial Court dismissed the suit vide its judgment and decree dated 30- 5-1998. The plaintiff-respondent filed an appeal before the District Judge who accepted the same vide his order, dated 26-9-1998. The defendants-petitioners aggrieved by the judgment and decree of the District Judge filed an appeal in the High Court on 3-12-1998 but the same was dismissed by the High Court vide its impugned judgment, dated 30-6-2001. It is the aforesaid judgment of the High Court which is the subject-matter of present petition for leave to appeal.
3. Ch. Lal Hussain, the learned counsel for the petitioners, contended that at the time of filing of appeal in the High Court inadvertently instead of copy of judgment of trial Court dated 30-5-1998 entitled Ch. Muhammad Salim v. Chairman, M.D.A. And another the judgment under dispute, certified copy of judgment titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another was attached with the memorandum of appeal before the High Court. The petitioners were confronted with the defect of wrongly annexed copy of trial Court's judgment on 14-4-2001 and they immediately procured the copies of required documents and n ied an application under section 151 read with Order XLII, Rule, 2 of C.P.C., for dispensation of copy of judgment of the trial Coun and also prayed alternatively for inclusion of the copy of trial Court's judgment with the memorandum of appeal. I ne learned counsel contended that the pm loners applied for supply of copy of judgment titled Ch. Muhammad Salim v. Chairman, M.D.A. And another and never applied for copy of judgment titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another. The copy branch inadvertently supplied the copy of judgment passed in a case titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another because both the files of the trial Court were attached with the file of appeal in the District Court. The learned counsel also contended that the office of High Court also reported that the appeal was accompanying the requisite copies and no defect was pointed out otherwise it could have been rectified forthwith. However, the High Court, as stated earlier, vide its impugned judgment dated 30-6-2001 dismissed the appeal mainly on the ground that the memorandum of appeal was not accompanied by the copy of the judgment of the trial Court. The learned counsel for the petitioners in support of his contentions relied upon Muhammad Iqbal etc. v. Khan Muhammad etc. (PLD 1999 SC 35), Mst. Safia Begum v. Taj Din and 2 others (1993 SCM R 882) and Muhammad Baksh etc. v. Ghulam Yasin and others (2000 M LD 466) and contended that the defect by not attaching the copy of the judgment of the trial Court with the memorandum of appeal was a mistake which was excusable and the High Court wrongly dismissed the appeal on the sole ground of non-filing of trial Court's judgment alongwith the memorandum of appeal in the High Court.
4. Controverting the arguments raised by Ch. Lal Hussain, the learned counsel for the petitioners, Ch. Muhammad Azam Khan, the learned counsel for the caveator respondent, strenuously argued that the petitioners did not file the copy of the judgment of trial Court alongwith the memorandum of appeal which was a necessary requirement under the law. Instead the petitioners alongwith the memorandum of appeal filed before the High Court appended only the judgment and decree under appeal and intentionally or through negligence did not file the copy of judgment of the trial Court recorded in the case titled Ch. Muhammad Salim v. Chairman, M.D.A. And another. On the other hand, they attached the copy of judgment passed in a case titled Ch.Muhammad Aslam and others v. Chairman, M.D.A. And another. The learned counsel also contended that the petitioners and their counsel should have been vigilant enough to file alongwith the other documents the copy of judgment of trial Court passed in a case titled Ch. Muhammad Salim v. Chairman, M.D.A.
And another, but they slept over the matter and had been guilty of contumacious negligence which cannot be excused as the provisions of Order XLI, Rule 1 and Order XLII, Rule 2 of C.P.C. Are mandatory provisions of law. The learned counsel contended that of course the High Court was competent to dispense with the copy of judgment of trial Court but in the circumstances of the case it did not deem it fit to dispense with the copy of the judgment of the Court of first instance.
The learned counsel contended that by now the law stands settled that the requirement of law is that an appeal before the High Court must be accompanied by three documents, viz.---(i) the copy of judgment; (ii) the copy of decree sought to be appealed from; and (iii) the copy of the judgment of the trial Court, unless the same is dispensed with by the Court. Thus the appeal being incompetent in the eye of law was rightly dismissed by the High Court. The learned counsel for respondent in support of his contentions placed reliance on unreported cases of this Court titled Liaqat Ali v. Chairman, Municipal Corporation and others (Civil Appeal No,5 of 1997 decided on 3-7- 1997), Muhammad Ozair v. Nasreen Akhter and others (Civil Appeal No,80 of 1999, decided on 4-12- 1999) and Razia Begum and others v. Muhammad Zaman and others (Civil P.L.A. No,93 of 2000, decided on 26-10-2000) and a reported case of this Court titled Muhammad Amin Shah v. Mehtab Din PLD 1996 SC (AJ&K) 11) and contended that by now it is practically settled law that under Order XLI, rule 1, C.P.C., the appeal filed in the High Court must also necessarily be accompanied by the copy of judgment of the Court of first instance if the discretion is not exercised in dispensing with such a copy. The learned counsel thus contended that the judgment of the High Court suffered from no illegality of infirmity as pointed out by the learned counsel for the petitioners.
5. I have given my due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record carefully. The main thrust of the arguments advanced by the learned counsel for the petitioners is that the petitioners applied for supply of copy of judgment of Additional Sub-Judge, Mirpur titled Ch. Muhammad Salim v. Chairman, M.D.A. And another and never applied for the copy of judgment titled Ch. Muhammad Aslam and others v. Chairman, M.D.A.
And another, decided on 30-5-1998. The copying branch through inadvertence and under a bona fide mistake supplied the copy of judgment passed in a case titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another. Thus this being an excusable mistake, it was enjoined upon the High Court either to order for dispensation of copy of judgment of trial Court or to allow the same to be included alongwith the memo. Of appeal which was supplied later on before the High Court. I, for my own satisfaction, before passing an appropriate order on the petition for leave to appeal deemed it appropriate to call for the copying register, record-keeper and copying clerk, namely, Muhammad Iqbal and Nisar Ahmed, for getting their statements recorded vide my order dated 25-9-2001. The statements of Muhammad Iqbal, Record-Keeper, District and Sessions Court, Mirpur, and Nisar Ahmed, Copying Clerk, Record Room of District and Sessions Court Mirpur, were recorded. It was stated in his statement by Muhammad Iqbal, Record-Keeper, that in the original register in Column No,4 the name of the Court is to be entered of whose judgment is required by an applicant and in Column No,3 of the register the name of applicant who applies for getting a copy of judgment is mentioned. In Column No,3 the name of Chairman, M.D.A. Is entered, whereas in Column No,4 the name of Court whose judgment is required is entered as District and Sessions Judge and the title of case is entered as Ch. Muhammad Salim v. M.D.A. And another. In Column No,7 the date of decision originally is entered as 26-9-1998 and afterwards an overwriting was made and the same was shown as 30-5-1998 which is abundantly clear. The copy of this judgment was prepared on 28-11-1998 but the same was not found to have been delivered to anybody, whereas alongwith the file of the High Court the judgment titled Chairman, M.D.A. v. Ch. Muhammad Salim decided by District Judge on 26-9-1998 was delivered to M.D.A. On 2-11-1998. In the relevant register no application for supplying the copy of case titled Ch. Muhammad Salim v.
Chairman, M.D.A. And another, the judgment of Additional Sub-Judge passed on 30-5-1998, is found to have been given nor the same is registered in the register brought by him, whereas there is an entry of supplying the copy of case titled Ch.Muhammad Salim v. Chairman, M.D.A. And another, decided by the District Judge, Mirpur and its entry is present in the register. The copy of judgment in a case titled Muhammad Aslam and others v. Chairman, M.D.A. And another decided by Additional Sub-Judge Mirpur was issued to M.D.A. On 30-11-1998 under No,2937 which appears to be doubtful. On cross-examination by Ch. Lal Hussain, the learned counsel for the petitioners, the witness stated that the copy of the judgment titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another, decided by Additional Sub-Judge was issued under No, 2937 which was decided on 30-5-1998. The witness also stated that the name of the Court whose judgment is required by the appellant is entered in the register.
6. The witness Nisar Ahmed, Copying Clerk, has also deposed in the Court that in the attested copy of the judgment of the case titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another, decided by the Additional Sub-Judge, Mirpur on 30-5-1998, Exh."CA", all the other entries have been made by him except the signature of Muhammad Iqbal and the number which is shown as 2937. The witness also stated that number 2937 appears to be doubtful which is not of his hand, whereas according to register, Exh."CB", the Entry No,2937 is not shown in the register in the case titled Ch.Muhammad Aslam and others v. Chairman, M.D.A. And another. Under No,2937 the title of the case is entered as Muhammad Salim v. Chairman, M.D.A. And another and the date of judgment is shown as 26-9-1998, but it was interpolated and entered as 30-5-1998 which seems to be an addition.
7. From the statement of both the witnesses it becomes clear that the application which was moved by the petitioners for obtaining the copy of judgment was with regard to the judgment which was passed by the District Judge on 26-9-1998 and not by the Additional Sub-Judge which was passed on 30-5-1998. Therefore, the argument advanced by the learned counsel for the petitioners that the petitioners applied for supply of copy of the judgment of Additional Sub-Judge in a case titled Ch. Muhammad Saleem and others v. Chairman, M.D.A. And another and they wre inadvertently supplied with the copy of case titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another stood negated by the documentary evidence as well as by the statements of Muhammad Iqbal, Record-Keeper, and Nisar Ahmed, copying clerk. In my opinion, if the petitioners could establish that they duly applied for the supply of copy of the judgment in the case titled Ch. Muhammad Salim v. Chairman, M.D.A. And another but they were inadvertently and through a bona fide mistake of the copying agency supplied the copy of judgment of case titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another and the same was attacked with the memo. Of appeal in the High Court, then certainly it would have been a good cause for dispensing with the copy of judgment of the trial Court but, as stated earlier, the petitioners applied for the copy of judgment of District Judge in a case titled Chairman,M.D.A. v. Ch. Muhammad Salim, decided on 26-9-1998 and later on manipulated the date and interpolated the same as 30-5-1998 which is that of the Additional Sub-Judge, Mirpur, but in the column wherein the name of Court is entered whose judgment is required is positively shown as the District Judge and not Additional Sub-Judge. Therefore, in my view the petitioners failed to be vigilant enough and careful to attach the copy of the judgment of trial Court alongwith the judgment and decree sought to be appealed from and as such they filed an incompetent appeal which was rightly dismissed by the High Court.
It now stands settled by various judgments of this Court that Order XLI, rule 1, C.P.C., the appeal filed in the High Court must also necessarily be accompanied by a copy of judgment of Court of first instance, if the discretion is not exercised indispensing with such a copy alongwith the copy of judgment and decree sought to be appealed from. The requirement of law is that the memo. Of appeal in the High Court must be accompanied by three documents viz.: the 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 judgment of either the trial Court or the Appellate Court keeping in view the facts and circumstances of each case.
8. The contention raised by the learned counsel for the petitioners that when the appeal was filed before the High Court, the office also reported that the appeal was complete in every respect and the same was placed before the Court which admitted the same for regular hearing and thus it would be deemed that the copy of the judgment of trial Court was dispensed with, merits no consideration for the simple reason that at the time of presentation of appeal on 13-12-1998 it was observed by the Reader of the High Court that the appeal has been presented which has been filed against the judgment of District Judge dated 26-9-1998. Copies of judgments and decrees have been attached. The appeal is filed within limitation and that there was also an application for ad interim relief filed by the petitioners on which the Court took cognizance on 7-12-1998 by issuing notice to respondents and calling for the record. From this, it could not be inferred that the copy of judgment of the trial Court was dispensed with. Moreover probably the objection was not raised by the office for the reason that the petitioners in the memo. Of appeal before the High Court in para. No,1 specifically stated that the copy of judgment of Additional Sub-Judge, Mirpur dated 30-51998 relating to land in dispute is attached with the memo. Of appeal. This averment !Night have created some confusion in the mind of office which did not report as to whether the. Copy of the judgment of trial Court in the ease titled Ch. Muhammad Salim v. Chairman, M.D.A. And another was attached with the memo. Of appeal or not but all the same no inference could be drawn that the same was dispensed with by the High Court.
9. Now I may advert to the case-law cited by the learned counsel for the parties. In a case reported as Muhammad Baksh etc. v. Ghulam Yasin etc. (2000 M LD 466) it was observed by the Court that the parties in both suits filed by plaintiffs against defendants were the same, however, disputed property was different. Plaintiffs on dismissal of both suits, wrongly placed judgments and decrees on two separate memos of appeals. Both appeals were dismissed. The Appellate Court in a slipshod manner without holding inquiry rejected memo of appeal under Order XLI, Rule 3, C.P.C.
Which was admitted for regular hearing by it. It was also observed that the Court was bound to see whether the party had obtained the copy of judgment and decree and placed the same on the file within the period of limitation or whether the appeal was filed incompetently. It was also observed that placing of wrong judgment and decree with memo of appeal appeared to be a bona fide mistake and the Court has inherent power to do justice and to redress wrong instead of trying to dispose of the case on mere technicalities.
' In a case reported as Muhammad lqbal etc. v. Khan Muhammad etc. (PLD 1999 SC 35) it was observed that it is incumbent upon the appellant to file certified copy of judgment of trial Court but the rule is not inflexible as the Appellate Court has been empowered with the discretion to dispense with such requirement.
' In a case reported as Mst. Safia Begum v. Taj Din and 2 others (1993 SCM R 882) it was observed that if certified copy of the judgment impugned in appeal is not produced on the ground that the record has been requisitioned by the Appellate Court, then the concerned party cannot be blamed for being unable to produce the certified copy.
10. On the other hand the authorities cited by the learned counsel for the respondents, who mostly relied upon the cases of this Court, may also usefully be referred to. In an unreported case titled Liaqat Ali v. Chairman, Municipal Corporation and others (Civil Appeal No,5 of 1997, decided on 3-7- 1997) it was observed by this Court that we uphold the preliminary objection raised by the learned counsel for the respondents and affirming the view taken in cases reported as Allah Ditta v. Sher Ahmed Khan (1993 SCR 325) and Rafique Shah v. Muhammad Aslam (1993 SCR 344), referred to above, dismiss the appeal as being incompetent.
' In another unreported case titled Muhammad Ozair v. Nasreen Akhter and others (Civil Appeal No,80 of 1999, decided on 4-12-1999) it was observed by this Court that even otherwise the petition for leave to appeal did not accompany the amended copy of writ petition and thus the same was incompetent in view of dictum of this Court in the case relied upon by the learned counsel for the respondents.
' In another unreported case titled Razia Begum and others v. Muhammad Zairian and others (Civil P.L.A. No,93 of 2000, decided on 26-10-2000) it was observed by this Court that filing of the judgment of the trial Court alongwith the appeal is a necessary requirement unless the same is dispensed with by the order of the Court. It is also pertinent to point out that the petitioners had the knowledge that the filing of the judgment of the trial Court alongwith the file of the appeal was a necessary requirement but despite that even after a period of six/seven months the needful was not done. Therefore, the petition for leave to appeal stood dismissed.
In another case reported as Muhammad Amin Shah v. Mehtab Din (PLD 1996 SC (AJ&K) 11) it was observed by this Court that the memo. Of appeal in the High Court must be accompanied by three documents, viz.: the copy of the judgment and decree appealed from and copy of judgment of the Court of first instance;' however a discretion is vested in the Court to dispense with the copy of judgment of either the trial Court or the Appellate Court keeping in view the facts and circumstances of each case.
11. The survey of the case-law shows that there is a consensus of opinion that it is a necessary requirement that the memo of appeal before the High Court must be accompanied by the judgment and decree appealed from and the copy of the judgment of the trial Court, unless the same is dispensed with by the Court . The petitioners failed to show any sufficient cause for not filing the judgment of the Court of first instance alongwith the memo, of appeal in the High Court.
As observed in the previous part of this judgment if the plaintiffs-petitioners could have established the fact that in fact they applied for the copy of judgment of trial Court in a'case titled Ch. Muhammad Salim v. Chairman, M.D.A. And another and never applied for the copy of judgment of case titled Ch. Muhammad . Aslam and others v. Chairman, M.D.A. And another decided by the Additional Sub-Judge on 3-5-1998, the same would have been a sufficient cause to dispense with the copy of judgment of the trill Court but, as stated earlier, this assertion of the petitioners has been negated by the documentary as well as the verbal evidence brought on record.
12. When the learned counsel for the petitioners moved an application on 15th May, 2001, under section 151, C.P.C., for dispensation of copy of judgment of trial Court the period of limitation had already elapsed and by then the incompetent appeal filed by the petitioners remained pending, so it was rightly disallowed by the High Court. The High Court has also observed that it was the duty of the counsel for the petitioners or the petitioners at the time of lodging the appeal to see that in the case titled Ch. Muhammad Aslam and others v. Chairman, M.D.A. And another there were 11 plaintiffs, whereas in the case titled Ch.Muhammad Salim v. Chairman, M.D.A. And another, Ch. Muhammad Salim was the' only plaintiff. Thus, both the documents being different in nature, no confusion could have arisen in the mind of either the petitioners or their counsel.
13. In the light of what has been stated above, the plaintiffs-petitioners have failed to make out any case for grant of leave, the same, therefore, stands dismissed with no order as to costs.
Petition for leave to .