2000 PLP 1061 (YLR)

Two cross suits filed by the parties against each other were consolidated and after framing the consolidated issues evidence of the parties was recorded and vide judgment and decree, dated 29‑5‑1994, a learned Civil Judge 1st Class, Kasur, proceeded to dismiss the suit of the appellants and to decree the suit of the respondents. Feeling aggrieved, the appellants filed an appeal against the judgment and decree, dated 29‑5‑1994. Alongwith the appeal both the decrees i.e., dismissing the suit of the appellant and decreeing the suit of the respondents were appended and a prayer was made that both the decrees be set aside and the suit of the appellants be decreed and that of the respondents be dismissed. This appeal came up for hearing before a learned Additional District Judge, Kasur, who proceeded to dismiss the appeal on the sole ground that a single appeal cannot proceed against the two decrees, vide judgment and decree, dated 22‑6‑1999.

2. Learned counsel for the appellants contends that the impugned judgment and decree is contrary to law. Learned counsel for the respondents, on the other hand, tries to support the judgment and decree under appeal.

3. I ‑have gone through the certified copies of the relevant records appended with the R.S.A. I find that two suits were decided by means of a common judgment and two decree sheets were prepared. The appellants filed an appeal, which was accompanied by a copy of the consolidated judgment as also of the two decree sheets and they prayed for setting aside of the said consolidated judgment and both the decrees. The impugned judgment and decree on the face of it is contrary to law declared by the Supreme Court of Pakistan in the case of Siraj Din and 11 others v. Rajada (1992 SCMR 979). 1n the said case, single appeal had been filed against consolidated judgment and two decrees without filing copy of the other decree. In the present case copies of both the decrees have been appended and I have already reproduced the prayer in the first appeal above. The reasoning given by the learned Additional District Judge for dismissing the appeal are, to say the least, preposterous. It is not intelligible as to how the Additional District Stage came to find that as to which of the two decrees the appeal relates to even if it were to be assumed that the copies of the two decrees were not filed with the appeal. It will be advantageous to reproduce here the observation of Mr. Justice Shafi‑ur‑Rehman (as his lordship then was) in the said case of Siraj Din:‑‑‑ "We find that in fact as the memo of appeal filed before the District Judge shows at the very first opportunity the judgment in both the suits had been challenged. It was not an appeal in one case and not in the other. Copy of the decree‑sheet of Civil Suit No.6 had been filed but not of Civil Suit No.7 of 1972. If at that stage by examining the memorandum of appeal corrective steps had been taken and appellants asked to file copy of the decree‑sheet and judgment separately in Civil Suit No.7 of 1972 in order to bifurcate the composite attack, no such anomaly would have resulted. The failure here and at this stage was partly of the Court and its functionary. The parties should have known better. All Such technical failures could be remedied if properly attended to promptly. Even at the argument stage, the District Judge should have deferred the decision in order to achieve the same and after allowing the opportunity to the parties to file the same. There was no question of treating the appeal to be one confining to Civil Suit No.6 of 1972 when in fact the substance of the appeal attacked the decisions in both the suits. "

4. Learned counsel for the respondents is unable to defend the impugned judgment and decree of the learned Additional District Judge. This R.S.A. is accordingly allowed, the judgment and decree, dated 22‑6‑1999 of the learned Additional District Judge is set aside and the appeal is remanded back to the learned District Judge, Kasur, who shall either himself hear and decide the same or entrust the same to another Additional District Judge for decision in accordance with law. H.B.T./M‑1233/L Appeal allowed.