' This petition for leave to appeal has been directed against the judgment passed by the High Court on 13-3-2004, whereby the appeal filed by the petitioner, herein, was dismissed.
2. The necessary facts, forming the background of the present petition for leave to appeal, are that petitioner, herein, instituted a suit in the Court of Senior .Civil Judge, Bhimber regarding land comprising Khasra No.2170 measuring 10 Kanals and 9 Marlas situated in village Panjari, Tehsil and District Bhithber on 10-7-2000. It was averred that the suit-land is in the ownership as well as in possession of the plaintiff-petitioner and the respondents have no concern whatsoever with it. It was, therefore, craved that a decree passed on 29-11-1996, is illegal and inoperative on the rights of the plaintiff- petitioner, as such, he is not bound by the aforesaid decree. The suit was resisted by the respondents by filing their written statements claiming therein, that the suit filed by the plaintiff-petitioner was time bared and hit by the principle of res judicata. The learned Senior Civil Judge after framing issues and hearing the parties dismissed the suit of the plaintiff-petitioner on the ground of res judicata, observing therein, that the matter under consideration has already been decided by the Court of competent jurisdiction vide judgment and decree, dated 25-11-2002.
3. Feeling aggrieved by the aforesaid judgment and decfee of the.Trial Court, the petitioner preferred an appeal before 'the District 'Judge Bhimber on 20-2-2003. The learned District Judge after hearing the parties dismissed the appeal of the petitioner vide judgment and decree, dated 24-7-2003. The petitioner then preferred a second appeal before the High Court Circuit Bench Mirpur on 29-10-2003. However after hearing the arguments of the learned counsel for the parties the High Court dismissed the appeal filed by the petitioner yide its judgment and decree, dated 13- 3-2004. It is. The aforesaid judgment of the 'High Contt, dated 13-3-2004, which is the subject- matter of present petition for leave to appeal.
4. In .Support of petition for leave to appeal, it was vehemently contended by Mr. Muhammad.
Siddique Chatnihry, the learned counsel for the petitioner, that the High Court has dismissed the appeal filed by the petitioner on the sole ground that the mandatory provisions of Order XLI rule I of the Civil Procedure Code, have been violated. The learned counsel contended that as a matter of fact, the petitioner had filed second appeal before the High Court Circuit Mirpur on 29-10-2003, against the judgment and decree of the District Judge Bhimber, dated 24-7-2003. On presentation of appeal before the High Court, the office made the report that the appeal has been presented against the judgment and decree of the District Judge Bhimber, dated 24-7-2003 and the same is within time, certified copies of the judgment and decree of the District Judge are attached with the appeal. On this report the Deputy Registrar of the High Court Circuit Mirpur on 29-10-2003, put up a note that the appeal has been presented by Syed Nishat Kazmi, Advocate Mirpur. The report made by the office is perused. It may be entered in the concerned register to be placed before the High Court for .Proper orders on 18-11-2003. On 18-11-2003 the file was placed before the learned Judge in the High Court who. Passed an order that "the notices be issued to respondents and the record of the Courts below may be requisitioned. To come up .For further proceedings on 11-12-2003".
5. The contention of the learned counsel for the petitioner, precisely is, that it is amply proved that the learned Judge passed the order for summoning of the-respondents and the record of the Courts below after applying his judicial mind, therefore, the provisions of Order XLI Civil Procedure Code would not be attracted in the case. It is emphasized that once the High Court took the cognizance of the case, then the filing of copy of the judgment of the trial Court would be deemed to be automatically dispensed with. This important and vital aspect of the case was not considered by the learned Judge in the High Court while passing the judgment under challenge. The learned counsel also urged that the authority relied upon from the other side titled Muhammad Amin Shah v. Mehtab Din and another PLD 1996 SC (AJ&K) 11, due to distinguished facts has no relevancy to the case in hand.
6. The learned counsel *also maintained that the petitioner, herein, filed an appeal before the High Court against the judgment and decree of the Disltrict Judge and not that of the Sub-Judge as the judgment and decree of the Sub-Judge merged into the judgment and de ree of the District Judge.
The learned ounsel in support of his contention relied pon a case titled Rashid Ahmed v. Provitic of Punjab through District Collector Vehari and another 2004 SCM R 707; wherein it was observed as under:--- "Certified copies of juginent and decree of the trial Cou t not filed-along with the memo. Of appeal' but' filed subsequently; dismissal . Of appeal as being in competent. The High Court in revision reinanded the case of the Appellate Court of its decision on merits.Lea-of the petitioner was that sa e should have been filed along with the memo. Of appeal---Validity--- Office had not pointed out such deficiency to the- respondent who had filed certified co y of the. . Judgment of the trial court after obtaining the same. Such plea in circumstances was, thu., not apt. The High Court had- exercised discretion to advance -cause of justice. Supreme Court dismissed petition and refused leave to appeal."
7. On the basis of the aforesaid authority it Was vehemently urged by the learned counsel for the petitioner that when the learned Judge in the High Court took cognizance of the case and issued notice to respondents and requisitioned the record, it shall be deemed that the copy of the judgment of the trial Court has been impliedly dispensed with, as such, the non-filing of the copy of the judgment of the trial Court along with the appeal before the High Court would not have entailed the dismissal of the appeal.
8. From the opposite side, Mr. Liaquat Ali Khan, the learned counsel for the respondents, vehemently urged that the appeal before the High Court was rightly dismissed as the same was incompetent on account of non-filing of the judgment of the trial Court along with the judgment and decree of the District Judge. The learned counsel contended that the provisions of Order XLI rule 1 of Civil Procedure Code are mandatory in nature and their noncompliance is fatal for the party upon which a duty is cast to place on record certain documents along with the memorandum of appeal.
The learned counsel in support of his contentions relied upon a case titled Azad Government and 5 others v. Syed Sajjad Ali Gillani and another 2001 SCR 134; wherein it was observed by this Court in a following manner:--- "Order XLI, Rule 1. The requirement of law is that the memorandum of appeal in the High Court must be accompanied by three document 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, either of the trial Court or of the Appellate Court."
9. The learned counsel contended that the contention of the learned counsel for the petitioner that the learned Judge in the High Court by summoning the respondents and requisitioning the record, impliedly dispensed with the filing of the attested copy of the judgment of the trial Court, is devoid of any legal force. Because when the appeal was presented in the High Court there was no note from the office that the copy of the judgment of the trial Court was not filed along with the appeal.
The note of the office was only to the extent that appeal is accompanied by the judgment and decree appealed from and nothing else. In such a situation when the file was put up before the learned Judge in the High Court, he had not applied his judicial mind while summoning the respondents and requisitioning the record, therefore, it cannot be said by any stretch of imagination that copy of the judgment of the trial Court was dispensed with by the learned Judge in the High Court. In the above referred authority, cited by the learned counsel of the respondents, it has been pointed out that attested copy of the judgment of the 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 copy of the judgment of the trial Court be dispensed with, it shall be deemed to have been dispensed with.
10. n -another case titled Muhammad Amin Shah v. Mehtab Din and another PLD 1996 SC (AJ&K) 11, it was observed by this Court that memorandum of second appeal must be accompanied by copy of decree and judgments appealed from and those.Of Court of first instance, unless those are dispensed with by the Court. At no stage the Registrar or Judge passed an order for dispensation of copy of judgment of trial Court neither any implied impression for such dispensation can be gathered. It was held that High Court committed no illegality in dismissing the appeal filed by the appellant as being incompetent.
11. I have given my due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The law as laid down by this Court and even by the Supreme Court of Pakistan, stands settled that while filing appeal before the High Court the judgment And decree sought to be.Appealed from and the judgment of the trial Court have got to be accompanied. However a discretion is vested in the Court to dispense with the filing of the copy of judgment either of the trial Court or the judgment under appeal. In the instant case at the time of filing of appeal before the High Court, the appellant averred in para. No.3 of his memorandum of appeal as follows:- {{URDU TEXT}}
12. While elaborating this para. Of the memorandum of appeal, the learned counsel submitted that it has been categorically mentioned that copy of the judgment and decree of Civil Judge, has been attached along with the memorandum of appeal but inadvertently the copy of judgment and decree of the trial Court was of some other case and not of this case. The learned counsel thus strongly emphasized that due to human error the petitioner could not file the copy of the judgment of the tr therefore, the same should h dispensed with by the High Cour case should have been decided rather than on technicalitie contention of the learned counse petitioner is also devoid of any le as in the memorandum of appeal Court in para. No.5 ground No.(i been averred by the appellant as u der:- "That the learned Judge in the High Court has only dismissed the appeal filed by the petitioner, herein, on the sole ground that the mandatory provision of Crder XLI of C.P.C. Has been violated. Is legally not correct. The fact of the matter is that the petitioner has filed the second appeal before the Honourable High Court Circuit Mirpur on 29-11-2003 against the judgment, and decree of the District Judge, Bhimber, dated 24-7-2003. The report of he office is that the appeal as been presented against the ju gment of the District Judge, Bhim er, dated 24-7-2003. The appeal is within time. Certified copies of the judgment and decree sheet of the Court below are attached with the appeal. Report is submitted for proper orders. On this report the Deputy Registrar of the High Court Circuit Mirpur vide his order, dated. 29-10-2003, stated that appeal has been presented by Syed Nishat Kazmi, Advocate. Report made by the office is perused. It be entered in the concerned register. To be placed before the High Court for proper orders on 18-11-2003. On 18-11- 2003 the file was placed before the Honourable High Court. The High Court ordered that "notice be issued to respondents and the record of the Court below may be requisitioned. To come up for further proceedings on 11-12-2003". From the above facts, it is amply proved that the Honourable Court has passed the order for summoning of the opposite party and the record. When this is the position of the case, then the provision of Order XLI of C.P.C. Did not attract in the case because when once the High Court took the cognizance of the case, then the annexing of the copy of the judgment of the trial Court would be automatically dispensed with. This important and vital aspect of the case was not considered by the learned Judge in the High Court while passing the judgment under consideration, as such, the impugned judgment and decree is not maintainable."
13. The averment made in ground No.(ii) of para.5 is contradictory and inconsistent with the averment made before. The High Court that the judgment of the trial Court was annexed with the memorandum of appeal but inadvertently the same related to some other case. Thus the petitioner has failed to take any tangible ground for dispensation of the judgment of the trial Court.
14. Even otherwise as rightly pointed out by the learned counsel for the respondents that the present petition for leave to appeal is barred by limitation of 7 days and there seems to be no earthly reason for condoning this delay. It is a settled principle of law that if a petition is barred by limitation, then it is the duty of the party seeking the condonation of delay to explain the delay of each and every day. The judgment of the High Court was announced on 13-3-2004. The petitioner applied for the copy of the judgment and decree of the High Court on 2-4-2004. However the petitioner was supplied the copy of the judgment but since the decree was not prepared by the office as claimed by the petitioner, the same was delivered to him on 29-5-2004. Thus the learned counsel for the petitioner prayed that the delay of 7 days may be condoned for the aforestated reason that the decree had not been prepared' in time by the office. Even this argument is not available to the learned counsel for the petitioner because for lodging the petition for leave to appeal under Order XIII, rule 3 of the Supreme Court Rules, what was required of petitioner, was a copy of the judgment sought to be appealed from and copy of the memorandum of appeal or application before the High Court for the purpose of lodging petition for leave to appeal under Order XIII, rule 3 of Supreme Court Rules. The copy of decree of the High Court was not a requisite document to be attached along with the memorandum of petition for leave to appeal. The petitioner for no useful purpose has been striving to get the copy of the decree which was not an essential document for lodging the petition for leave to appeal before this Court. The learned counsel for the petitioner, however, contended that he has done so with a bona fide mistake, but suffice it to say that the ignorance of law is no excuse.
' Thus, without entering into the merits of the case, the petition for leave to appeal being barred by limitation and also on account of the fact that before the High Court the copy of the judgment of the trial Court was not filed along with the memorandum of appeal, the same, stands dismissed in limine. In the circumstances of the case we pass no order as to costs.