SARDAR SAID MUHAMMAD KHAN. C.J.- This appeal has been directed against the order of High Court dated 27.9.2000, whereby the revision petition filed by the appellants, herein, was rejected on the ground that the same did not accompany the requisite certified copy of the impugned order which was required under Rule 44 of the High Court Procedure Rules.
2. The brief facts of the case are the appellants, herein, filed a declaratory suit in the Court of Sub- Judge Kotli alongwith an application for issuing a stay order. The stay order was issued in the first instance but on objections by- the opposite side the same was recalled against which an appeal was preferred to the District Judge which was dismissed. The appellants filed a revision petition in the High Court against the order of the District Judge which was also dismissed on the ground that revision petition was not properly constituted because it did not accompany the certified copy of the impugned order passed by the District Judge as required under rule 44 of the High Court Procedure Rules. Although a certified copy of the relevant order was filed after the expiry of limitation of 90 days yet the same was not treated as compliance of the relevant rules.
3. It has been contended by Ch. Muhammad Ilysa, the learned counsel for the appellants that as no objection was raised at the time of filing of the revision petition by the Registrar, the appellants should not be made to suffer and delay should have been condoned. He has further contended that when revision petition was filed, the District Judge had not yet written detailed judgment and thus only the copy of the short order was filed alongwith the revision petition, which is sufficient compliance of the relevant order. He has also argued that when the detailed judgment was subsequently written by the District Judge an application was filed before the High Court for placing the same on the record but despite that revision petition was dismissed on the ground that period of limitation for filing the revision petition had expired on the relevant date. The learned counsel has contended that under sub-rule (2) of rule 44 the delay should have been condoned by the High Court in the circumstances as indicated above. The learned counsel for the appellants has cited the following authorities in support of his contention that even otherwise the copy of the order of the District Judge would be deemed to have been dispensed with:-
1. In a case reported as Ali Haider Shah v. Ghulam Muhammad (1981 CLC SC (AJ&K) 359), while discussing the provisions contained in Order XLI, rule 1 it has been held that copy of the judgment of the Court of first instance, unless same is dispensed with, must accompany with the memorandum of appeal filed in the High Court.
2. In a case reported as Swar Khan and 2 others v. Noor Alam and another (1985 CLC (AJ&K) 1082) it has been held that as despite the note of Registrar that the copy of the judgment of the Trial Court was not filed with the memorandum of appeal, the notices were issued to the respondents, it would be assumed that the requirement of filing the copy of the judgment of the Trial Court was dispensed with.
4. In reply, Mr. Abdul Majeed Mallick, the learned counsel for respondent No. 1, has controverted the arguments advanced on behalf of the appellants. He has argued that no application for condonation of delay in filing the attested copy of the order of the District Judge was submitted by the appellants in the High Court. They only filed application for placing on record the copy of order of the District Judge after 1-1/2 year. He has further contended that it has been incorrectly stated by the appellants in the memorandum of appeal to this Court that they had already filed the copy of short order passed by the District Judge whereas no short order was passed by the District Judge.
In fact the order which is alleged to be 'short order' by the learned counsel for the appellants merely records that 'decision was announced'. He has maintained that it was not the duty of the office to direct the appellants to apply for the condonation of the delay or seek the dispensation of the requirement to file attested copy of the impugned order of the District Judge. He has argued that this is a case of gross negligence which cannot be condoned on the pretext that failure to attach attested copy with the memorandum of revision petition was the result of any misapprehension or it was due to a bona fide mistake on the part of appellants or their counsel. He has further maintained that even in this Court no application or affidavit was filed seeking the condonation of delay for failure to attach attested copy to the memorandum of revision petition in the High Court. Mr. Abdul Majeed Mallick cited the following authorities in support of his contention that provisions contained in the aforesaid Procedure Rules of the High Court are mandatory and the non-compliance of the same cannot be condoned, specially so when no application was filed in that regard:--
1. In a case reported as Province of the Punjab through Board of Revenue, Lahore and 2 others v.
Muhammad Hussain and 4 others (1988 CLC 514), it has held that as requisite certified copies of judgment and decree of the Trial Court were not placed on the record within the period of limitation, the appeal entailed dismissal as being time-barred.
2. In a case reported as Mst. Safia Begum v. Taj Din and others (1990 CLC 1503) it has been held that filing of certified copies of judgment and decree of the Court of first instance is mandatory requirement; however, neither same were filed nor were dispensed with by the Court; and no application for the condonation of delay was filed. In the circumstances of the case appeal was dismissed as being time-barred.
3. In a case reported as Abdur Rehman v. Muhammad Sharif and others (PLD 1979 SC (AJ&K) 117), it has been held that as the appeal was filed without the copy of the judgment of the Trial Court and same was not dispensed either, explicitly or impliedly, the appeal was not properly constituted.
4. In a case reported as Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 Others (2000 SCR 70), it has been held that provision of rule 3, Order XIII of the Supreme Court Rules was mandatory and, thus, the appeal was dismissed.
5. In a case reported as Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others (2000 SCR 291), it has been held that the provision of rule 34 of the High Court Procedure Rules, 1984 was mandatory and, thus, order passed by the High Court was set aside.
5. We have given due consideration to the arguments raised at the Bar. The revision petition was filed on 1.3.1999 whereas the application for placing on record the copy of order of the District Judge was submitted on 26.9.2000 i.e., after 1-1/2 year. No explanation was given for this inordinate delay, except that it was due to mistake. The order of the District Judge dated 30.11.1998 shows that nobody was present on behalf of Sadiq Hussain Shah and others appellants, and 'decision was announced' in presence of the counsel for the respondents. What the 'decision' was has not been mentioned in the interim order. Therefore, the aforesaid order cannot be regarded as a 'decision'. It may also be observed that neither any affidavit was filed nor any plausible reason was given by the learned counsel for the appellants for failure to file the requisite copy alongwith memorandum of revision petition to the High Court; no application for condonation of delay was either submitted before the High Court or this Court. Under these circumstances we are unable to subscribe to the arguments raised by the learned counsel for the appellants that the appellants or their counsel was misled by any bona fide mistake.
In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.