This civil revision is directed against the judgment and decree, dated 5-1-2000 whereby the first appeal of the petitioner was dismissed and the judgment and decree dated 19-2-1998 passed by the learned Senior Civil Judge, Narowal was affirmed. Resultantly petitioner's suit for possession though pre-emption was dismissed.
2. The relevant facts are that the sale in favour of the respondents was sought to be pre-empted by the petitioner on the ground of his being Shafi Sharik, Shafi Jar and Shafi Khalit. Issues in the case were framed on 6-5-1996 whereafter the suit continued to be adjourned for recording, the evidence of the plaintiff and the adjournments were granted in that regard. The petitioner having failed to produce his evidence, the same was closed on 19-2-1998. Resultantly, the suit was dismissed.
The petitioner appealed against the said judgment and decree which appeal was not properly constituted as the impugned decree sheet was not appended therewith. However, the appeal filed on 2-5-1998 was entertained by the Appellate Court because the same was accompanied by an application for condonation of delay wherein the reason for condonation of delay in filing of the appeal was stated to be illness of the appellant. The said appeal was dismissed as time-barred for it was held-that illness of the appellant is no ground for condonation of delay.
3. The said judgment has been assailed in the present revision petition primarily on the ground that since no decree sheet was prepared by learned trial Court, therefore, the time limited for filing the appeal had not begin.
4. At the hearing, learned counsel for the parties were confronted with the rule of law laid down in the case of "Sher Muhammad v. Muhammad Khan and another" (AIR 1924 Lahore 352) that in such an eventuality the proper course for the Appellate Court was to keep the appeal pending and direct the lower Court to prepare the decree sheet or to issue direction to the appellant to apply to the lower Court for the preparation of the decree-sheet and the same having been brought on the record, the appeal should have been heard on merits, learned counsel for the appellant readily adopted the rule afore-noted while the learned counsel for the respondents sought to oppose it on the ground that the petitioner had not applied for the certified copy of the decree alongwith the copy of the order, therefore, he could not take advantage of the same. After hearing the learned counsel for the parties, I had reserved the judgment and directed the learned counsel for the appellant to procure the copy of the application which was filed for obtaining the relevant copies of decree and order. The said copy have been produced today. It is discernable therefrom that the final order was passed on 19-2-1998 and a copy thereof alongwith the decree sheet was applied on 26-2-1998. The Copying Agency reported on 19-3-1998 that no decree sheet having been prepared, the copy thereof could not be supplied. The copy of the order was, however, received by Jabbar Khan, the appellant on 14-4-1998.
It is axiomatic that the appeal is preferred only against the decree and not the judgment/order.
Since no decree sheet had been prepared in the instant case, therefore, it could not be successfully maintained that the time limited for filing of appeal had begun .To run against the appellant.
Respectfully, following the rule laid down in the case of "Sher Muhammad v. Muhammad Khan and another" noted supra that in such an eventuality, the Court should keep the appeal pending and direct the lower Court to prepare the decree or direct the appellant to apply to the lower Court for the preparation thereof, whereafter the said decree is brought on the record and then only the appeal is heard and decided. I am persuaded to hold that the time limited for the appeal had not begun 'to run for the decree sheet itself was not prepared, therefore, there was no question of appeal of being barred by time. In the circumstances the learned Appellate Court has proceeded with material irregularity amounting to illegality in the exercise of its jurisdiction while dismissing the appeal of the petitioner.
5. In result, this revision is accepted, the order, dated 5-1-2000 dismissing the appeal is set aside, resultantly, the said appeal shall be deemed to be pending before the learned Appellate Court who shall proceed to decide the same on merits. There shall, however, be no order as to costs.
H.B.T./J-33/L