MUHAMMAD YUNUS SURAKHVI, J. - This appeal, by way of leave of the Court, has been preferred against the judgment and decree passed by the High Court on 29.3.2000, whereby the appeal filed by the appellants herein was dismissed as being incompetent and on the ground that the appeal filed before the District Judge was time-barred.
2. The necessary facts, giving rise to the present appeal, briefly stated, are that land comprising survey No. 49-Min, Measuring 3 kanals and 10 marlas, situate in Jalalabad Muzaffarabad was acquired by the Collector Land Acquisition Muzaffarabad vide Award No. 4/82, dated 28.1.1982 for the construction of residential colony of non-gazetted civil servants. Despite repeated demands the compensation amount was not paid to plaintiff-respondent who, therefore, were constrained to file a declaratory suit alongwith the prayer for permanent injunction against the appellants before the Sub-Judge Muzaffarabad on 17.2.1991. The suit of plaintiff-respondents was decreed in their favour by the Trial Court on 26.10.1996. An appeal preferred by the appellants before the District Judge Muzaffarabad was dismissed on the ground that it was filed beyond the prescribed period of limitation. The second appeal taken to the High Court was also dismissed by the High Court vide the impugned order on the grounds that the appeal filed before the High Court did not accompany the attested copy of the judgment of the Sub-Judge dated 26.10.1996 and that the appeal filed before the District Judge was barred by limitation.
3. Raja Muhammad Hanif Khan, the learned counsel for the appellants, vehemently contended that the High Court erroneously dismissed the appeal on the ground that the attested copy of the judgment of the Trial Court was not appended with the memorandum of appeal. The learned counsel contended that the High Court admitted the appeal for regular hearing and issued notices to respondents, thus, it shall be deemed that after admitting the appeal for regular hearing and issuing notices to the respondents, the copy of the judgment of the Trial Court was dispensed with by the High Court. In support of his contention the learned counsel relied upon the dictum laid down by this Court in cases reported as Ali Haider Shah vs. Ghulam Muhammad (1981 CLC 359) and Sarwar Khan and others vs. Noor Alam and another (1985 CLC 1082). The learned counsel further contended that the High Court erroneously placed reliance upon a reported case of this Court titled Muhammad Amin Shah vs. Mehtab Din (PLD 1 996 SC (AJK 11), because the same is distinguishable. The learned counsel pressed into service the submission that the High Court also wrongly held that the appeal before the District Judge was barred by limitation. The learned counsel argued that the application for condonation of delay filed before the District Judge fully justified the condonation of delay. He further contended that even otherwise the land acquired could not be returned to land- owners, especially so when millions of rupees have been spent on the construction of Government buildings; at the most plaintiff- respondents were entitled to recovery of compensation among which has already been deposited by the appellants. The learned counsel also submitted that this Court can exercise its inherent powers in doing complete justice between the parties because the land in dispute, after having been acquired, the jurisdiction of Civil Court stood totally ousted.
4. Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondents, controverted the arguments advanced by the learned counsel for the appellants. The learned counsel contended that neither any prayer was made by the appellants in the memorandum of appeal before the High Court that the non-filing of copy of the judgment of Trial Court may be dispensed with nor any oral prayer was made by the appellants to the said effect. Even during the arguments before the High Court no such verbal or written prayer was made by the appellants for dispensing with the requirement of placing on record the copy of the judgment of the Trial Court. The learned counsel in support of his contentions relied on reported cases of this Court titled Muhammad Amin Shah vs. Mehtab Din (PLD 1996 SC (AJK) 11) and Abdul Aziz vs. Abdul Hamid (PLJ 2000 SC (AJK) 325) + (2000 PSC SC (AJ&K) 1186). The learned counsel pressed into service the submission that it was rightly observed by the High Court that the appeal filed before the District Judge was barred by limitation and it was for the appellants to explain the delay of each and every day. The learned counsel for respondents placed reliance on Mehboob and another vs. Muzaffar Din (1992 SCR 338) and Azad Jammu and Kashmir Government and others vs. Ch. Muhammad Latif (PLD 1983 SC (AJK) 70).
5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that for availing the appellate jurisdiction of the High Court in second appeal it was mandatory for the appellants to attach with the memorandum of appeal the attested copies of the judgment and decree passed by the first Appellate Court and also provide with it the judgment of the Trial Court, unless the same was either expressly or impliedly dispensed with. To have a correct perception of the proposition involved in the instant case it would be useful to reproduce the provisions of Order XLI, rule 1 of the Code of Civil Procedure which reads as follows:-- "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."
6. The requirement of law, as we understand, is that the memorandum of appeal in the High Court must be accompanied by three documents viz. Copies 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 the judgment of either the Trial Court or the Appellate Court, keeping in view the facts and circumstances of each case. So far as the copy of decree appealed from is concerned, it cannot be dispensed with for the simple reason that an appeal is basically preferred against a decree and not against a judgment, unless of course the judgment itself amounts to a decree.
In a case reported as Syed Ali Haider Shah vs. Ghulam Muhammad (1981 CLC (SC) AJK 359) it was observed that it is a 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 a copy of the judgment of the Court of first instance, if the discretion is not exercised in dispensing with such a copy. Though in the above case in its peculiar circumstances it was observed by the learned Judges that the copy of judgment of the Court of first instance shall be deemed to have been dispensed with.
In the case reported as Muhammad Shafi vs. Mst. Jamita Bi and others (1 980 CLC (SC) AJK 11 30) it was opined by this Court that under Order XLII, rule 1 C.P.C. As applicable in Azad Kashmir, the memorandum of second appeal before the High Court must be accompanied by the three documents, namely, copies of the judgment and decree appealed from and unless the Appellate Court dispenses with, the copy of the judgment of the Court of first instance. However in the above referred case the copy of the judgment of the Trial Court was filed at a later stage when the time for filing the appeal had already expired. Thus, it was opined that the application for obtaining the copy of the judgment must be made before the period of appeal expires.
7. From the survey of the case-law, referred to above, it becomes clear like crystal that the memorandum of appeal before the High Court must be accompanied by the judgment and decree appealed from and judgment of the Court of first instance. However, the requirement of filing the copy of the judgment can be dispensed with keeping in view the circumstances of each case. In the instant case the appeal was filed by the appellants against the judgment and decree of the District Judge Muzaffarabad dated 10.7.1998 before the High Court on 9.9.1998, wherein the Deputy Registrar of the High Court pointed out vide his order of the even date that alongwith the memorandum of appeal the copies of judgment and decree appealed from haye been duly attached, however, the attested copy of the judgment of the Trial Court has not been filed and the case was fixed for proper orders. On 22.9.1998 the learned Chief Justice of the High Court despite the note of the Deputy Registrar dated 9.9.1998 that the copy of the judgment of the Trial Court was not filed alongwith the memorandum of appeal, admitted the appeal for regular hearing and notices were issued to respondents and record was sent for. Therefore, despite the fact that no prayer was made by the appellants in the memorandum of appeal or during the course of arguments that the copy of the judgment of the Trial Court may be dispensed with, it shall be deemed to have been dispensed with for the reason that despite the note of the Deputy Registrar, the learned Chief Justice issued process to the respondents at the time of admission of appeal for regular hearing.
8. The authority, referred to above, by the learned counsel for respondents titled Muhammad Amin Shah v. Mehtab Din (PLD 1996 SC (AJK) 11), has no relevancy to the facts of the case in had. In the above reported case the appellant had himself stated in the memo, of appeal that the copy of the judgment of the Court of first instance shall be filed at a later stage, but the same was not filed subsequently. It was also observed in the above case that on the basis of clear averment made by the appellant that the copy of the judgment shall be filed later on, it created an impression in the mind of Registrar of High Court not to raise any objection at the time of institution of appeal most probably under the impression that the appellant would do the needful as the appeal was filed a few days after the pronouncement of the judgment of the first Appellate Court and the time for filing the appeal was still subsisting. It was also observed in Amin's case that the summons were issued to respondents by the Registrar and the record was also called for by him. The file for the first time was placed before the learned Chief Judge of the High Court much later than October 4, 1
993. Thus, it was observed that the appellant himself stated in his memo, of appeal that the judgment of the Court of first instance would be submitted subsequently when the time for filing the appeal was still subsisting. So in this view of the matter the Registrar of the High Court did not raise the objection of non-filing of copy of the judgment of the Court of first instance at the time of institution of appeal. The facts of the above case, being totally distinct, have no application in the instant case.
In a case reported as Sarwar Khan and 2 others vs. Noor A/am and another (1985 CLC 1082) it was observed that despite the note of the Registrar to the effect that copy of the judgment of the Trial Court was not filed with the appeal, the Court issued the notice to opposite party. This implies that the High Court dispensed with the copy of the judgment of the Trial Court. It was further observed that it depends upon the circumstances of each case as to whether the Court impliedly dispensed with the copy of the judgment of the Trial Court or not. Where despite the note of the Reader to the effect that memo, of appeal was not accompanied by the copy of the judgment of Trial Court, the Court chooses to issue notices to opposite party, it would be deemed that the Court condoned the defect which of course it has the power to do under Order XLI, rule 1 of the C.P.C.
In a case reported as Ali Haider Shah Vs. Ghulam Muhammad (1981 CLC 359) it was observed that for appeal to be filed in the High Court it must necessarily be accompanied by the copy of judgment of the Court of first instance unless the discretion is exercised in dispensing with such a copy. However, in the circumstances of the case, it was observed that on 5.10.1977 a note was appended by the Reader that appeal is not accompanied by the copy of the judgment of the Trial Court. At that time, 28 days were still to go towards limitation for filing the appeal and if the appellant would have been asked by the Court to file the copy of the judgment of Trial Court, it could well be done within time. In this view of the matter the Court and not the appellant was a fault and for the reason implied dispensation of the copy of the judgment of the Trial Court would be presumed and even otherwise to the appellant could not be allowed to suffer for the fault of the Court.
9. As observed earlier, we are clear in our mind that in the present case the learned Chief Justice of the High Court despite the note of the Deputy Registrar to the effect that the appeal was not accompanied by the copy of the judgment of the Court of first instance proceeded to admit the appeal for regular hearing and issued the notices to respondents and called for the record, therefore, it shall be presumed that the requirement of filing the copy of the judgment of the Court of first instance was impliedly dispensed with. On this objection that the appeal filed by the appellants was not accompanied by the judgment of the Trial Court, the High Court in the circumstances of the case was not justified to dismiss the appeal of the appellants.
10. So far as the objection of the learned counsel for the respondents that the appeal filed before the District Judge by the appellants was barred by limitation is concerned, the same has a strong substance. The appeal was filed before the District Judge on 27.2.1997, against the judgment and decree passed by the Sub-Judge Muzaffarabad on Oct. 26, 1996. Alongwith the memorandum of appeal an application was moved on behalf of appellants seeking condonation of delay. In this application it was mentioned that the appellants obtained the knowledge of the judgment of the Sub-Judge Muzaffarabad a few days before. This application, on the face of it, is contrary to the true facts. The copy of the judgment and decree of the Sub-Judge Muzaffarabad dated Oct. 26, 1996, was obtained by the appellants on Nov. 14, 1 996. They moved for the supply of the copy of the judgment and decree of the Sub-Judge on the same day. Even from the date of knowledge the appeal was hopelessly time-barred. The ground thus taken for condonation of delay was contrary to the record. The High Court thus rightly observed that the appeal filed before the District Judge was barred by limitation and the same was liable to be dismissed.
11. Raja Muhammad Hanif Khan, the learned counsel for the appellants, lastly contended, that the Court may exercise its inherent powers under Order XLIII, rules 4 and 5 of the Supreme Court Rules for doing complete justice between the parties. It may be stated that inherent powers can be resorted to if there is no specific provision in the statute book dealing with the situation but in the instant case, there is no such eventuality. Our aforesaid view stands fortified by an unreported case of this Court, titled Muhammad Ilysa and others vs. Muhammad Hafiz Khan and others (Civil Appeal No. 119 of 2000. Decided on 8.12.2000) and many other cases such as Inspector General Prisons AJ&K and others vs. Ghulam Muhammad Lolabi (PLJ 2000 SC (AJK) 308) + (2000 PSC (AJ&K) 1708), Mst. Safia and another vs. Muhammad Rafique and others (PLD 1993 SC 62), Said Mian and another vs. Mian Said Baghdad and another (1980 SCMR 420) and Ch. Abdul Hamid vs. Deputy Commissioner and others (1 985 SCMR 359).
12. The upshot of the above discussion is that finding no force in this appeal, the san e stands dismissed with costs.