MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 18-10-2000, whereby the appeal filed by the appellants herein was dismissed because the copy of the judgment of the District Judge was not filed alongwith the memorandum of appeal before the High Court.
2. The necessary facts, giving rise to the present appeal, are that a declaratory suit challenging the orders, dated 18-3-1971 and 15-7-1979 with the prayer for possession on the basis of prior right of purchase was filed by the appellants in the Court of Sub-Judge, Dhirkot. The suit after its conclusion was dismissed and the appeal filed before the District Judge also failed. Consequently an appeal was filed in the High Court but the same was also dismissed on the short ground that the appellants herein failed to file the attested copy of judgment of District Judge alongwith the memorandum of appeal in the High Court; as only an unattested copy of the same was filed.
3. Raja Muhammad Yunus Tahir and Mr. Abdul Hamid Khan Shahid, the learned counsel for the appellants, argued that the High Court fell in error in dismissing the appeal on the ground that the attested copy of the judgment of District Judge was not placed on record alongwith the memorandum of appeal, as such the appeal was dismissed. The learned counsel argued that the copy of the judgment of District Judge could be dispensed with under the provisions of law. The learned counsel contended that the requirement of filing the attested copy of decree cannot be dispensed with but the copy of the judgment appealed from can be dispensed with. The learned counsel argued that the appeal was admitted for regular hearing on 24-11-1998 without raising any objection by the office of the High Court that the memorandum of appeal did not accompany the judgment of the District Judge, as such it would be deemed that the failure to file the attested copy of the judgment was dispensed with impliedly. The learned counsel further submitted that if no objection is raised by the office or the Court at the time of admitting appeal for regular hearing, it would be deemed to have been dispensed with. The learned counsel relied upon reported cases titled Muhammad Amin Shah v. Mehtab Din and another 1995 SCR 390, Azad Government and others v. Syed Sajjad Ali Gillani and another 2001 CLC 1105, Swar Khan and 2 others v. Noor Alam and another 1985 CLC 1082 and Ali Haider Shah v. Ghulam Muhammad 1981 CLC (SC) AJ&K 359.
4. On the other hand Sardar Muhammad Arif Khan Abbasi, the learned counsel for the respondents, contended that the appeal filed by the appellants before the High Court was incompetent as the same was not accompanied by the attested copy of the judgment of District Judge which was appealed from. The learned counsel vehemently urged that it is the mandatory requirement of law that the memorandum of appeal in the High Court must be accompanied by three documents, namely, the copy of the judgment and decree appealed from and the copy of the judgment of the Court of first instance, unless the same is dispensed with but in the circumstances of the case the High Court did not exercise the power of dispensation of copy of judgment appealed from as the period of limitation for filing appeal had already run out. The learned counsel for respondents placed reliance on Ch. Ajaib Hussain and another v. Mst. Zareen Akhter and 11 others 1999 YLR 1426 and Province of Punjab and others v. Zahoorul Hassan Farooqi 1991 CLC 1288.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that under Order XLI, rule 1, C.P.C. The requirement of law is that the memorandum of appeal before the High Court shall be accompanied by a certified copy of judgment and decree appealed from and the certified copy of the judgment of the trial Court. The appellants did not file the certified copy of the judgment of the District Judge which was appealed from but at the same time filed the attested copy of the decree of District Judge and certified copy of the judgment of trial Court. The High Court observed that the appeal was not competent as the filing of copy of judgment appealed from at the present moment would not bring the appeal within limitation. Appeal with the judgment would be deemed to have been filed on the day the certified copy was filed which will be hopelessly time-barred. The counsel for the appellants did not pray as mentioned above to file the copy or otherwise to condone the delay through an application or oral request. This finding of the High Court shows that in its opinion the dispensation of copy of judgment or filing of the same would not serve the purpose as the period of limitation had already run out.
6. It escaped the notice of the High Court that the appeal was filed by the appellants on 24-11-1998 against the judgment, and decree of the District Judge passed on October 22, 1998. On the day of filing of appeal i,e, on 24-11-1998, a note was written by the reader of the High Court that the attested copy of the Court of first instance and copy of the decree are attached with the memo of appeal, the appeal is within limitation and it was complete in every respect. On the same day the Deputy Registrar issued process to respondents and called for the record. On the day the appeal was admitted for regular hearing i,e, on 24-11-1998 the period for limitation was still subsisting and had the office pointed out the defect to the appellants that the appeal was not accompanied by the judgment appealed from, the appellants would have provided the same but the office did not raise any objection and the Deputy Registrar also issued the process without raising any objection with regard to non-filing of the attested copy of the judgment appealed from. Thus it shall be deemed that the copy of the judgment appealed from was dispensed with by the High Court while admitting the appeal for regular hearing on 24-11-1998.
' In a case reported as Azad Government and others v. Syed Sajjad Ali Gilani and another 2001 CLC 1105 it was observed that the Deputy Registrar of the High Court pointed out that the attested copy of the judgment of trial Court has not been filed. The learned Chief Justice despite note of the Deputy Registrar admitted the appeal for regular hearing. 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 trial Court be dispensed with, it shall be deemed to have been dispensed with.
' In a case reported as Syed Ali Haider Shah v. Ghulam Muhammad 1981 CLC (SC) AJ&K 359 it was observed that 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. On the basis of this analogy of law it requires consideration that whether in the circumstances of the case it could be said that the Court had not impliedly dispensed with the copy of judgment of the trial Court. On 5- 10-1997, a note was appended by Reader that the appeal was not accompanied by the copy of judgment of 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 at fault and for that reason the implied dispensation of copy of judgment of trial Court will be presumed and even otherwise too the appellant cannot be allowed to suffer for the fault of the Court.
' In a case reported as Muhammad Amin Shah v. Mehtab Din and another 1995 SCR 390 it was observed that the requirement of law is that the appeal in the High Court must be accompanied by three documents, i,e, the copy of judgment and decree appealed from and the copy of judgment of the Court of first instance. It was further held that the discretion is vested in the Court to dispense with the copy of judgment of trial Court or the Appellate Court keeping in view the facts and circumstances of each case. So far as the copy of judgment appealed from is concerned, it cannot be dispensed with simply for the 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. However, in the circumstances of the case, the copy of the judgment of the Court of first instance was not dispensed with in the above case.
' In a case reported as Swar Khan and 2 others v. Noor Alam and another 1985 CLC 1082 it was observed as follows:-- "After giving due consideration to the authorities cited at the Bar, we are of the opinion that the principle laid down in Ali Haider Shah v. Ghulam Muhammad 1981 CLC 359 is fully applicable to the facts of the present case, because in the present case too, despite the note of the Reader to the effect that copy of the judgment of the trial Court was not filed with the appeal, the Court issued the notice to the, opposing party. This implies that the High Court dispensed with the copy of the judgment of the trial Court. It may be further stated 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 the memo. Of appeal was not accompanied by the copy of the judgment of the trial Court, the Court chooses to issue notice to the 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."
7. From the case-law, cited above, it becomes clear that a discretion is vested in the Court to dispense with the copy of judgment of trial Court or the judgment appealed from in an appropriate case and condone the delay. In the instant case, as pointed out earlier, the appeal was admitted for regular hearing despite the fact that there was note of the Reader that the copy of judgment of trial Court and decree are attached. The Deputy Registrar of the High Court could have pointed out the defect to the appellant for filing the attested copy of the judgment appealed from but he impliedly dispensed with the same and issued process for summoning the respondents and called for the record although the period for filing the appeal was still subsisting. In this view of the matter, the appeal of the appellants could not have been dismissed simply for non-filing of the attested copy of the judgment appealed from particularly so when the same was impliedly dispensed with.
8. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment and decree passed by the High Court and remand the case to the High Court with a direction that it shall decide the case on merits according to law. In the circumstances of the case we pass no order as to costs.