GHULAM MAHMOOD QURESHI, J.--- This regular second appeal 'as been directed against judgment/decree dated 17.12.1998 passed by Addl. District Judge, Lahore, whereby the appeal filed by the appellant was dismissed as being incompetent and time-barred.
2. The facts relevant for the disposal of present appeal are that the respondent filed a suit for declaration with consequential relief With the following prayer:- "It is, therefore, most respectfully prayed that this Honourable Court may be pleased to pass a decree for declaration in favour of the plaintiffs and against the defendants thereby declaring that the plaintiffs are legally entitled to get possession of plot No. 159-H, being highest bidders in auction held on 12.5.1975 and that the action of the defendants in refusing or delaying the restoration and delivery of plot to the" plaintiffs is illegal, male fide, unjustified, void and ineffective in law and that the defendants are legally bound to restore the possession of plot in question to the plaintiffs on receipt of the requisite amount and observance of other formalities . The alleged order of the Registrar, which has already been adjudged as nullity may be declared to be non-existent, void and ineffective in law, as against the rights of the plaintiffs.
As a consequential relief a decree for possession of plot No. 159, Block-H, Model Town, Lahore may kindly be passed in favour of the plaintiff and against the defendants, on payment of the auction price or the amount as may be determined by this Honourable Court. A decree for mandatory injunction and specific performance may also be passed against the defendants thereby directing them to perform their obligation in law and to issue necessary letters for the restoration of plot in favour of the plaintiff and also to perform all other obligations in this regard. Any other orders or relief to which the plaintiff is found entitled may also be granted. Costs of the suit may also be awarded against the defendants."
The suit was contested by the appellant/defendant and on the divergent pleadings of the parties, the learned Trial Court framed the following issues:-
(1) Whether the plaintiffs are legally entitled to get the possession of plot No. 159-H-Block being highest bidder in auction held on 12.5.1975? OPP
(2) Whether the action of the defendants in refusing or delaying restoration and delivery of plot to the plaintiffs is illegal, ma/a fide, un-justified, void and in-effective in law and the defendants are legally bound to restore the possession of the plot in question to the plaintiff after receiving of the requisite amount and observance of the formalities? OPP.
(3) Whether the alleged orders of Registrar has already been adjudged and nullity in the eyes of law and is no legal effect qua the rights of the plaintiffs? OPP
(4) Whether the plaintiffs have been approaching the defendants and they were and are ready to perform their on part of the contract? OPP
(5) Whether the refusal to grant the plot to the plaintiffs by the defendants is illegal, ma/a fide and unjustified? OPP
(6) If the abovesaid issues are proved, whether the plaintiffs are entitled to the decree prayed for by them in detail in the prayer of the plaint? OPP.
(7) Whether the suit is within time? OPP
(8) Whether the suit is incompetent under Section 70-A of the Co-operative Societies Act? OPD
(9) Whether no valid and legal notice under Section 70 said Act has been given to the Registrar Co-operative Punjab in accordance with law? OPD..
(10) Whether the form of the suit is not proper? OPD (1 1) Whether the suit is bad for non-joinder of necessary parties? OPD
(12) Whether the Registrar was competent to refuse sanction/appeal of the alleged auction? OPD
(13) Whether the plaintiffs have received back their 1/1 of the auction price deposited by them as earnest money as alleged in the written statement and contract of sale if any had come to an end? OPD
(14) Whether the suit is hit by the principle of estoppel by conduct? OPD
(15) Whether it will be inequitable to pass a discretionary decree in favour of the plaintiffs after such a long lapse of time? OPD
(16) What are the effects of decision passed by Hon'ble Lahore High Court, Lahore on this particular case? OP Parties.
(17) Whether the plaintiffs have no cause of action to file this suit? OPD
(18) Relief.
2. In support of their respective pleas respondent/plaintiff produced six witnesses and the respondent produced Muhammad Gulzar as DW.1. Both the parties also produced documentary evidence in support of their version.
Issue No. 1 having been admitted by the appellant/defendant to the extent of highest bid of the plaintiff and to that extent alone it was decided in favour of the plaintiff. Issues Nos. 2 to 5 being interconnected were decided in favour of plaintiff. Issues Nos. 6 to 9 were also decided in favour of plaintiff. Issues Nos. 10, 12 to 14 and 16 were decided in negative while issues Nos. 11, 15 and 17 were decided against the defendant and consequently the suit was decreed vide judgment/decree dated 7.6.1997. Feeling aggrieved theappellant filed appeal on 5.7.1997, which was registered as C.A.
No. 35A/1987, against order dated 7.6.1997. The appellant did not append certified copies of judgment/decree with memorandum, of appeal.
3. After realizing lapse committed by the appellant if filing the appeal they filed an application under Order XLI, Rule I read with Section 151, CPC on 30.3.1998 for permission to place on record certified copies of judgment/decree dated 7.6.1997. This application was supported with an application under Section 5 of Limitation Act for condonation of delay. Through another application filed by the appellant under Sections 151 and 153 read with Order VI, Rule 17, CPC filed on 18.7.1998 with the prayer that the appellant be permitted to delete the word "impugned order" and be permitted to substitute it with the words "impugned judgment and decree". Both the applications were contested by the respondent and learned first Appellate Court through detailed judgment/decree dated 17.12.1998 dismissed the appeal of appellant with the following observation made in para 40 of the judgment:- "Viewed form which ever angle the application made by the appellants under Order XLI, Rule 1 read with section 151 of Code of Civil Procedure is legally., not maintainable and as such while dismissing the same it is held that present appeal is in-competent and is time-barred as well and as such the same is dismissed."
4. The present RSA has been directed against impugned judgment/decree dated 17.12.1998 passed by the learned Addl. District Judge.
5. In support of his argument the learned. Counsel for petitioner h as contended as follows:- That at the time of presentation of appeal neither any objection was raised by the office nor any note was put pointing out the defect in filing the appeal, therefore, the infirmity stands cured as according to the learned counsel the mistake made due to contributory negligence, the appellant is not supposed to be penalized for the omission and act of the official staff, that the technicalities should not hamper the course of justice, especially when the certified copies of the decree sheet had been placed on record on 30.3.1998. In support of his argument the learned counsel has relied on 1992 CLC 1204, PLD 1983 Peshawar 215 and 1985 CLC 1711.
6. Conversely the learned counsel for respondents contended that the appeal before first Appellate Court was not properly, validly and legally constituted as the same was filed without certified copies of judgment and decree. Even the same was not directed against the decree, therefore, judgment/decree passed by the learned first Appellate Court is legally justified. Admittedly the certified copies of the judgment and decree were filed on 30.3.1998 and by that time the appeal had become time-barred and no sufficient cause for condonation of delay was given in the application filed under Section 5 of the Limitation Act, it was rightly, dismissed. It is further contended that the omission on the part of appellant in filing the appeal without appending the certified copies of judgment and decree was an act of gross negligence and. Same could not be considered unintentional. It is also contended that the Provision contained under Order XL1, Rule 1, CPC being mandatory in nature should have been complied with and the appeal admittedly having been filed in violation of the abovesaid provision, was not competent and was rightly dismissed.
7. I have given due consideration to the arguments advanced by the learned counsel for parties and perused the relevant record. Order XLI, Rule 1, CPC read as under:- "Form of the appeal and what to accompany the memorandum .-- (1) Every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints in this behalf. Memorandum shall be accompanied by a copy of decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."
8. The appellant under Order XLI, Rule 1, CPC is required to append with the memorandum of appeal two documents:-
(i) Copy of the decree appealed from; and
(ii) Copy of judgment on which the decree is founded.
The Appellate Court of course has power to dispense with the copy of judgment but has no powers to dispense with the copy of decree and the appeal could not be considered to be properly and legally constituted unless the memorandum of appeal is accompanied with the copy of decree appealed from. In the instant case, it has nowhere been said that the copy of decree was not prepared and was not made available o.The appellant, but the plea taken by the appellant in his application under Order XLI, Rule 1 read with Section 151, CPC submitted before the first Appellate Court for grant of permission to file the certified copies of the judgment and decree was to the effect that "the failure to file certified copies of the impugned judgment and decree with memorandum of appeal was not intentional or due to wilful negligence and was result of inadvertence and bona fide mistake, which occasionally occurs in the conduct of human affairs."
This application is supported with an affidavit and in para 3 of the affidavit deposed by Mr. Zahoor Nasir, Advocate, who filed appeal on behalf of the appellant, in addition to the submission made in the application also mentioned that the above omission to file the certified copies of judgment and decree occurred on account of rush of work due to heavy professional engagement of the deponent. There is contradiction even in the affidavit sworn by the Advocate and submission made in para 3 of the application.
9. I have gone through the ground of appeal filed before first Appellate Court. This appeal was filed on 5.7.1997 and in the body of appeal at the very outset it is mentioned "appeal against order dated 7.6.1997 passed by Mr. Aqib Nazir, Civil Judge, Lahore." In para 9 of the grounds of appeal at page 7 it is averred:- "Therefore, in these circumstances, the learned Trial Court was not competent to adjudicate upon the matter and in this way the learned Trial Court has acted illegally and unlawfully and also passed the impugned order without jurisdiction."
The prayer made in appeal reads as under:- "It is, therefore, respectfully prayed that the appeal of the appellant may kindly be accepted and impugned order of the learned Trial Court dated 17.6.1997 may kindly be set aside in the interest of justice and the suit of respondents/plaintiffs may kindly be dismissed with costs.
It is further prayed that during the pendency of the appeal the operation of impugned order dated 7.6.1997 may kindly be sustained till final decision of the appeal."
10. In view of repeated narration made in the ground of appeal as well as in the prayer, it cannot be said that the copy of judgment and decree was not appended alongwith memorandum of appeal due to inadvertence and with bona fide mistake. The appellant, only challenged Order dated 7.6.1997 in the appal and the Affidavit submitted by the learned counsel that certified copies of the judgment and decree appealed against could not be appended due to heavy rush of work is an afterthought and find no support from the record, because it was never asserted that the certified copies of judgment and decree were not available at the time of institution of appeal.
11. It has also been noticed that the appellant applied for obtaining certified copies of judgment and decree dated 7.6.1997 on 9.6.1997. It was prepared on 5.7.1997 and was obtained by the appellant on the same day i.e. 5.7.1997. The appeal was also instituted on the same day i.e. 5.7.1997 and was registered as CA No. 35-A/1997.
12. At the time of argument the learned counsel for appellant submitted that the appeal before the first Appellate Court was instituted by some other Advocate and after engagement of the new Advocate, who inspected the file it transpired that the copies of judgment and decree had not been appended with the memorandum of appeal. The learned counsel for respondents in reply to this argument has pointed out from the record that powerof-attorney of the new counsel, which is available on record was filed on 21.2.1998. He has further referred para 3 of the application under Sectien 5 of the Limitation Act filed alongwith application under Order XLI, Rule 1, CPC, wherein it is mentioned:- "that unfortunately the above defect that the memo. Had not been appended with certified copies of the impugned judgment and decree could not be noticed until the petitioner Society's new counsel inspected the file of the appeal on 27.3.1998. The copies of the impugned judgment and decree had been filed thereafter alongwith application under Order XLI, Rule 1, CPC without further delay".
It has been noticed that the date on which alleged inspection of the file was made was not typed, it was left blank at the time of typing and subsequently filed in by pen. This also clearly shows that the appellant was, himself, at a fix as to how the lapse made by him could legally be justified, but all effort made in this regard proved futile in view of the pleadings.
13. It is well-settled that non-filing of certified copy of decree sheet alongwith the appeal could not be termed as a bona fide mistake and was result of inadvertence. Reference may be made to Muhammad Latif Butt v. Muhammad Usman (1999 YLR 704), 1990 M LD 2094 and 1997 M LD 1795.
14. In the instant case as already noticed, the appellant had obtained certified copies of judgment and decree appealed against before institution of appeal, but the same were not appended with the memorandum and further that neither there was any mention in the ground of appeal nor in the prayer made thereunder that the appeal was directed against judgment and decree, but it was specifically mentioned that the appeal was filed against order dated 7.6.1997. Even in the prayer the appellant only prayed for setting aside the order dated 7.6.1997.
15. The contention of the learned counsel for the appellant that the learned first Appellate Court should not have entertained the appeal if it was defective and since the same was entertained without any objection, therefore, the appellant cannot be penalized due to act of Court, has no force as the appeal was directed against order, the Ministerial Staff as well as the learned Court did not commit any mistake in entertaining the same. It can safely be held on the basis of record that it is not a case of any error on the part of Court or its office, when according to their on admission, the appellant had obtained the copy of appeal before institution of the appeal then the omission on the part of the appellant and also the counsel in filing the appeal without appending the copies of judgment and decree is clearly an act of gross negligence and the same cannot be treated as unintentional. The cause furnished by the appellant in their application is contradictory in nature and that could not be believed. Even if the power-of-attorney filed by the new counsel is taken as correct, then why he waited till 27.3.1998 for inspection of the file when he filed the power- ofattorney on 21.2.1998. Mere filing of the appeal before the Court and the prosecution thereof could not be said to be an act of due diligence and in good faith as held in 1997 M LD 1795. "Due diligence mean performance of act with care and caution that which is expected of a reasonable and prudent man in particular circumstances."
16. Non-filing of the certified copies of decree alongwith memorandum of appeal and the appeal filed without complying with such mandatory requirement cannot be said to be properly instituted.
See Akbar Khan v. Muhammad Razaq alias Abdul Razaq (FLD 1979 SC 380). The authorities referred by the learned counsel for appellant are not relevant to the facts and circumstances of the present case.
17. Before concluding his argument, the learned counsel for the applicant contended that if this Court is of the view that the appeal had not been properly constituted then after converting the present RSA into Civil Revision, in its supervisory jurisdiction and in order to see that complete justice has been down, can correct the error by exercise of suo motu powers. This contention of the learned counsel is also devoid of force as the Revision is only competent where no right of appeal is available and since the appellant has availed the remedy of filing the appeal, therefore, this RSA cannot be treated as civil revision.
18. In view of what has been discussed above, the learned counsel failed to point out any illegality or infirmity in the judgment and decree dated 17.12.1998 passed by the learned Addl. District Judge, which is eminently just and correct. This appeal has no merit and the same is dismissed. The parties shall, however, bear their on costs. .