1. ' CH. IJAZ AHMAD, J.---Brief facts out of which the present I.C.A arises are that the original owner of the land namely Mst. Khurshid Sultana, wife of late Sardar Mumtaz Ali Khan respondent No,1 and mother of Asad Ali Khan and Kaisra Sultana respondents 2, 3 executd a deed of lease dated 21-10- 1944 in respect of land in question measuring 459 Kanals, 9 Marlas situated in Chak No,672-GB Hussainabad, Tehsil Nankana District Sheikhupura for a period of 20 years from Kharif 1944 to Rabi 1994 on a cash rent Rs,20,000 in favour of Narain Singh and Arjan Singh Aroras, non-agriculturists by caste. She also sold the land simultaneously in the name of Daulat Singh an agriculturist by Caste resident of Chak No, 8 Tehsil and District Sheikhupura for Rs,20,000 vide registered deed, dated 21-10-1944. The aforesaid Daulat Singh sold the land to the present appellants vide registered deed, dated 19-2-1946. The appellants had also acquired the lease rights in the land from aforesaid Narain ,Singh and Arjan Singh. Appellants are in continuous possession of the land in question since 1944. Mutation No, 287 was sanctioned in favour of the aforesaid Narain Singh and Arjan Singh on 11-7-1945 which was duly incorporated in the Jamabandi for the year 1949-50 but the sale transaction in favour of aforesaid Daulat Singh was never given effect in the Revenue Record and mutation was sanctioned. Asad Ali Khan respondent No,2 filed an application under section 13-A of the Punjab Alienation of Land Act (13 of 1900) before the Deputy Commissioner Sheikhupura on 11-10-1954 against Narain Singh and Arjan Singh and Daulat Singh evacuees for the cancellation of sale-deed of the land of Mst. Khaurshid Sultana an agriculturist by Caste to Daulat Singh, a benamidar for Narain Singh and Arjan Singh non-agriculturist, on the ground that the same was sold without sanction of the Deputy Commissioner in violation of section 3(2) of the aforesaid Act. The Deputy Commissioner accepted the application vide order dated 15-7-1957. The Deputy Commissioner held in his order that he had jurisdiction to entertain the application filed by Asad Ali before him and section 12 of Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 did not oust his jurisdiction concerning the property belonging to the evacuees. The present appellants being aggrieved by the aforesaid order filed Writ Petition No, 256 of 1958 before this Court which was disposed of by the Division Bench of this Court vide order, dated 16-2-1961.
2. Thereafter, the appellants filed suit for declaration alongwith mandatory injunction by way of consequential relief before the Civil Judge 1st Class Sheikhupura on 15-7-1961 challenging the vires of the order of the Deputy Commissioner dated 15-7-1957. Respondents filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:
(i) Whether the form of the suit is improper, if so, what is its effect?
(ii) Whether the suit is barred by time?
(iii) Whether the suit is not within jurisdiction of this Court?
(iv) Whether the order of the Collector, dated 15th of July, 1957 is null, void and inoperative on the rights of the plaintiffs?
(v) Whether the plaintiffs are owners of the suit land?
(vi) Whether Narain Singh and Arjan Singh sold their right of lease in favour of the plaintiffs?
(vii) Whether the decision of the High Court in writ petition operates as res judicata in the present proceedings?
(viii) Whether Daulat Singh sold the suit land in favour of the plaintiffs and "4 whether he was competent to do so?
(ix) Whether the plaintiffs have any adverse possession for more than 12 years prior to the institution of the suit?
(x) Relief.
3. ' The trial Court dismissed the suit vide judgment and decree dated 28-11-1962. The appellants being aggrieved filed appeal before the District Judge, Sheikhupura who dismissed the same vide judgment and decree dated 9-5-1966. Thereafter, the appellants filed R.S.A. No,562 of 1966 before this Court which was dismissed by the learned Single Judge vide impugned judgment dated 14-3- 1967 as time-barred. Hence the present appeal.
2. Learned counsel for the appellants submits that the learned Single Judge accepted the 2nd appeal of the appellant on merits but dismissed the same as time-barred on the ground that the appellants failed to attach the certified copy of the judgment and decree of the learned trial Court along with the memorandum of 2nd appeal before this Court. He further submits that the learned Single Judge had given the certificate of fitness under section 10 of the letters of patent vide his order dated 23-12-1975. He further submits that only question involved in this case is with regard to limitation. According to him the rest of the judgment is in favour of the appellant, and therefore, no other question determined by the judgment under appeal is to be argued before this Bench. He further submits that learned Single Judge decided the question of res judicata in favour of the appellants. He further submits that question of resjudicate does not arise in this case as is evident from the judgment of the Division Bench of this Court dated 16-2-1961 in Writ Petition No, 256 of 1958. He further submits that the learned Singh Judge non suited the appellant on a highly technical ground. He further submits that it is not obligatory on the appellant to attach the copy of the judgment of the learned trial Court along with the memorandum of appeal as is evident by rule 2 of the High Court orders and Rules framed by the competent authority under Order 42, C.P.C. He further submits that the Hon'ble Supreme Court insisted that cases must be decided on merits and not on technicalities. He further submits that appellants filed application before the learned Single Judge along with the memorandum of 2nd appeal for dispensation of certified judgment and decree of the learned trial Court. He further submits that judgment and decree of the learned trial Court was placed on record before the final adjudication by the learned Single Judge. He further submits that the learned Single Judge decided the case against the appellants on the ground that the appellants filed an application for dispensation of certified copy of the learned trial Court before the learned Single Judge reveals otherwise as the contents of the certified copy of the judgment and decree shows that the appellant concealed the material facts from the learned Single Judge and copy of the application was filed subsequently by the appellants to obtain certified copy of the judgment and decree of the learned trial Court after filing end appeal before this Court learned Single Judge was erred in law that appellants did not file application for condonation of delay under section 5 of the limitation. He further urged that by virtue of aforesaid rule does not obligatory upon the appellants to tile an application for condonation of delay under section 5 of the Limitation Act. He further submits that the old view which was taken by the learned Single Judge on the basis of the earlier decision is no more in the field. He further submits that the superior Courts have deviated from the old principle. In support of his contention be relied upon PLD 1978 Lahore 819 (Noor Muhammad's case) and Mst. Safia Bagum 1993 SCMR 882. He further submits that Order 42, rules 2 was not considered by the learned Single Judge and dismissed the appeal of the appellants by relying upon Order 41, rule 1, C.P.C. He further submits that learned Single Judge has decided the case on technicalities. He further submits that learned Single Judge has granted certificate of fitness under clause 10 of Letter Patent vide his order dated 23-12-1975.
4. This appeal was admitted for regular hearing vide order dated 23-2-1977. He further submits that learned Single Judge admitted the appeal for regular hearing vide order, dated 8-8-1966 without any condition without producing certified copy of the judgment and decree of the trial Court. In support of his contention he relied upon the following judgments: ' AIR (34) 1947 Calcutta 67 Brojendra Lal Saka and others v. Jana Mendal and others.
5. ' PLD'1959 Lahore 946 (Mst. Karan Nishan's case).
6. ' He further submits that Order 41, rule 2, C.P.0 was interpreted by the Hon'ble Supreme Court and laid down the principle that appeal should not be dismissed as time-barred. In support of his contention he relied upon the following judgments: ' PLD 1999 SC 35 Muhammad Iqbal v...Khan Muhammad.
7. ' PLD 1991. SC 476 Federation of Pakistan etc. v. Maj (Retd.) Muhammad Sabir Khan.
8. ' PLD 1992 SC 882.
9. 1992 SCMR 1206 Sultan Mir etc. v. Umar Khan etc. 1992 SCMR 1974 Allah Ditta v. Barkat Ali and others
3. The learned counsel of the respondents submits that appellants filed R.S.A No, 562 of 1996 against the judgment and decree of the District Judge dated 9-5-1996 on 30-7-1996 without accompanying the judgment of the trial Court dated 28-11-1962. Office returned the appeal to the appellants on 1-8-1966 with objection that certified copy of the judgment of trial Court should be filed within one week. Late Raja Muhammad Ayyub Khan, Advocate of the appellants re-filed the memorandum of appeal with the note that he had already filed an application along with the memorandum of appeal to dispense with the certified copy of the trial Court (C.M. No,2-C-1966).
10. The contents of C.M 2-C-1966 filed by the appellants under Order 41, rule 1 read with section 151, C.P.0 reveal that the appellants had applied for the certified copy of the judgment of the trial Court which had not been supplied to him so far and they undertook to file the certified copy in this Court immediately after the same was supplied to them. It is pertinent to mention here that this application was accompanied by affidavit of one of the appellants. However, appellants had attached with the memorandum of appeal an attested copy of the judgment of the trial Court. The appeal was admitted for regular hearing by the learned Single Judge on 8-8-1996 and the said Civil Miscellaneous was disposed of with the observation that the appellants should file certified copy of that judgment if it was not filed within time. It would be open to the opposite side to take such objections which could be available to them on this account. The learned counsel of the respondents further submits that appellants did not file certified copy of the trial Court in time and the appeal was admitted with condition. The appellants filed certified copy of the judgment of the trial Court before the learned Single Judge at the time of hearing an 14-3-1967. The certified copy of the judgment of the trial Court reveals that the appellants had applied for the copy on 9-11-1966 which was delivered to appellants on 11-11-1966 after it was ready. The noting on the judgment of the trial Court is contrary to the contents or C.M. No,2-C of 1966. This Court had re-opened on 29-9- 1966 after the summer vacation and this appeal could have been filed on that date at the latest but the appellants did not file copy of the judgment of the trial Court till 29-9-1966. He further submits that learned Single Judge was justified to dismiss the appeal of the appellants on ground of limitation as the appellants as well as their counsel concealed material facts from the learned Single Judge and got the appeal admitted for regular hearing on 8-8-1966 without bringing into the notice of the learned Single Judge qua the office objection raised by the office that the appellants should file certified copy of the judgment and decree of the trial Court within one week.
11. He further submits that respondents are well within their right under the provisions of the Civil Procedure Code to support the judgment of the learned Single Judge without filing cross-objection.
12. He further submits that learned Single Judge was erred in law to give finding against the respondent on issue No,
7. The appellants filed Writ Petition No,256 of 1958 which was finally decided by the Division Bench on 16th February, 1961, therefore, principle of resjudicata is attracted in full force.
13. ' The learned counsel of the appellants in rebuttal submits that principle of res judicata is not attracted and the learned Single Judge was justified to decide issue No,7 in favour of the appellants.
4. We have considered the contentions of the learned counsel for the parties and perused the record ourselves. It is better and appropriate to reproduce the material facts with chronological order to resolve the controversy between the parties:
(i) Predecessors of appellants Nos.1, 3 and appellant No,2 filed suit against the legal heirs of respondents No,1 and 2 and 3 before the Civil Judge 1st Class Sheikhupura.
(ii) The learned trial Court dismissed the suit vide judgment and decree, dated 28-11-1962.
(iii) The appellants filed appeal before the District Judge Lahore who dismissed the same vide judgment and decree, dated 28-11-1962.
(iv) The appellants filed R.S.A. No,562 of 1996 on 30-7-1966 within time without certified copy of the judgment and decree of the trial Court, dated 28-11-1962.
(v) Office returned the memorandum of appeal to the appellants on 1-8-1966 with the objection that certain copy of the judgment should be filed within a week.
(vi) Appellants counsel refilled memorandum of appeal with the note that he had already filed an application for dispensation of the certified copy through C.M. 2-C of 1966.
(vii) Appeal was admitted for regular hearing on 8-8-1966 without any condition.
14. (viii)C.M. 2-C of 1966 was also disposed of on 8-8-1966 with the observation that the appellants should file certified copy of the judgment if it was not filed within time. It would be open to the opposite side to take all such objections which would be available to them on this account.
15. (viiia) Records of Courts below were received before the final arguments.
(xi) R.S.A. Was accepted on merits vide impugned judgment and decree and dismissed the same as time-barred as the appellants failed to attach judgment and decree of the learned Trial Court along with the memorandum of appeal as the appellants produced the judgment and decree of the learned trial Court before the learned Single Judge during the arguments on 14-3-1967.
(x) Appellants filed application for obtaining certificate under section 10 of the latent patent appeal the same was allowed by the learned Single Judge vide order, dated 23-12-1975.
16. ' The question of determination for us whether the learned Single Judge was justified to dismiss the appeal of the appellants as time-barred or not? We have perused the case-law on the subject. It is better and appropriate to analyze the case-law on the subject to resolve the controversy between the parties: ' AIR 1947 Calcutta 67 (Brojendra Lal Saha and others case) The Division Bench of the Calcutta has considered this proposition of law and laid down the following principle: "Accept the judgment and the decree, if already put in. As the appeal is directed against the decree of the lower appellate Court and was presented with the certified copy of the judgment and decree appealed against within the time allowed by Article 156, Limitation Act, no question of limitation arises. Certified copies of the first Court's judgment and decree are required to be filed by reason of proviso to rule 1, Order, 42 C.P.C. If the certified copies of the judgment and decree of the first Court are not filed the defect would be a defect in form. Office to note for future guidance."
17. ' The Hon'ble Supreme Court has considered this proposition of law in Mst. Safia Begum's case (supra) and laid down the following principle:--- "We are of the view that High Court should have passed order on the application of appellant for dispensing with production of certified copy of the judgment and since the record was available in the High Court, prayer in the application should have been allowed and discretion should have been exercised in favour of the appellant."
18. ' The Hon'ble Supreme Court has again considered all the case-law on the subject in Muhammad Iqbal's case (supra) (PLD 1999 SC 35) and held as under: "The appeal was admitted without a certified copy of the judgment of the trial Court being placed on record by the Court. No doubt when such copy was filed the period of limitation prescribed for filing such appeal had already expired, but since the Court had already permitted placing of such copy on record, it ought to have extended the time for filing such copy. When the Court is vested with power to exempt a party from performing a legal obligation, but such request is declined, and in the meanwhile the Court has permitted the period of limitation prescribed for performance of such obligation to expire, time must be extended by the Court to enable the party to perform such obligation, because no one can be made to suffer by any act of the Court. However, the learned Judge in the High Court appears to have completely overlooked this important factor. Therefore, in our view, the appeal was erroneously dismissed as time-barred."
19. ' We are also fortified by the law laid down by the Hon'ble Supreme Court in Bashir Ahmad Siddiqui's case (1995 PSCC 1094). It is also held in Nanda Kishor Singh's case (Indian Law Reports Calcutta Series 1955): "That the Courts has inherent power and the existence of the inherent power is to do justice based on sound judicial principles."
20. ' This proposition of law is also supported by the law laid down by this Court in Mst. Karan Nishan's case (PLD 1959 Lahore 946). We are also fortified by the law laid down by the Hon'ble Supreme Court in Said Muhammad and others' case (PLD 1989 SC 532) and the relevant observation is as follows: "This will be in consonance with the principle that the Court will ordinarily exercise power because technicalities notwithstanding laws or procedure are meant for the advancement of justice and not for denying it".
21. In view of the aforesaid precedents we accept the appeal and reverse the finding of the learned Single Judge to the extent that the same was dismissed as time-barred. Now we intend to decide Issue No,7 i,e, dprinciple of res judicata is attracted in the present case or not. The appellants filed Writ Petition No,256 of 1958 which was disposed of by the Division Bench of this Court vide order, dated 16-2-1961 with the following observations: "It was open to the petitioners to go up in appeal or revision against the order of the Deputy Commissioner, as provided in sections 13-B and 13-C of the Punjab Alienation of Land Act. Even now, it may be open to the petitioners to challange the order in question by way of a civil suit. If so advised. But no case is made out for interference with the impugned order the exercise of our writ jurisdictions. The petition is, therefore, dismissed with costs."
22. ' In view of the aforesaid operative part of the order of this Court in the aforesaid writ petition the principle of res judicata is not attracted in the present case and the learned Single Judge was justified to hold the same. In view of what has been discussed above, this appeal is accepted in the aforesaid terms and judgments and decrees of the C learned trial Court, first appellate Court and judgment of the learned Judge to the extent regarding time-barred are set aside, consequently the suit of the appellants be decreed.