2010 PLP 46 (CLC)

MUZAFFAR ALI, J.

This revision petition assails the orders dated 6-5-2009 passed by the learned Additional District Judge, Gilgit and orders dated 27-4-2009 and dated 11-8-2008, passed by learned Civil Judge, Gilgit. The revision petition is wrapped with the facts that, the present respondent filed Suit No.67 of 2003 for recovery of money Rs.90,000 + interest with effect from date of filing of the suit upto the final disposal. The suit proceeded and issues were framed and the plaintiff/the present respondent adduced witnesses, but the defendant/present petitioner failed to produce witnesses as such the defence was struck off by the trial Court and the suit was fixed for final arguments and the present petitioner was proceeded ex parte on 9-7-2008 for his absence from the Court and in the result, ex parte decree was passed against him on 11-8-2008, the defendant submitted application under Order IX, .rule 13, C.P.C. along with an application under section 5 of the Limitation Act for condonation of 4 months' delay caused. The learned Civil Judge heard the above application and rejected the same as time-barred by refusing condonation of delay under section 5 of the Limitation Act and upheld the ex parte decree. The present petitioner went to appeal before the 1st Appellate Court but failed, hence this petition. I heard both the counsel for the parties and also visited the record. Perusal of the file C.F.A. No.18 of 2009 registered in the list Appellate Court transpires that the appellant/present petitioner has impugned the orders dated 27-4-2009 passed in Civil Miscellaneous No.32 of 2009 and 11-8-2008 passed in Civil Suit No.67 of 2003 by the learned trial Court respectably, but neither decree of the trial Court has been challenged nor copy of the decree has been attached with the memo. of appeal. In the instant revision too only copy of the impugned judgment passed by the learned Additional District Judge has been attached with the petition without any copy of the decree and neither copy of orders passed by the learned trial Judge have been attached with the instant petition nor copy of decrees passed by the learned trial Judge are attached, only an unattested copy of decree dated 11-8-2008 is in file on page 8 which seems to be placed on file unintentionally and incidentally while the law on the above irregularities is very clear, that under Order XLI, rule, 1, it is the decree which is being appealed against and attachment of an attested copy of the decree with the memo. of appeal is indispensable. Legal consequences of above irregularities are as such, that indeed it is the decree which is being challenged in appeal and not the order or judgment but the higher judiciary has held this irregularity not to be so fatal to result the dismissal of the appeal as the same does not effect the jurisdiction of the Court and in this regard (1) 1996 PLC page 702 (2) 1995 CLC page 1102 (3) PLD 1990 Lah. page 208 may be referred. As far as the point of not attaching the copy of the decree with the memorandum of the appeal is concerned, the Courts are unanimous on the point that the memorandum of appeal must be accompanied by a copy of the decree and if not attached, it is not validly presented as the Court cannot dispense with but the Courts are at variance in their legal view on the point about the legal consequences. Some Courts have held that the appeal should be dismissed and this view has been incorporated in the following case-law (1) PLD 1991 K 205 (2) PLD 1984 AJK 61 but the other view is that if the decree is not attached and appeal has been heard, the judgment will not be invalid. This view is available in (1) 1998 SCMR 892 (2) PLD 1993 Lah.

439. However, on the above points, I don't want to give any finding of my own for the reasons that, learned District Judge or the learned Additional District Judge have failed to take notice of the above point and the learned Additional District Judge himself has failed to draw up the decree and myself has also committed slagness by not taking notice of the fact in time, that no decree sheet has been attached with the instant revision petition, hence at this stage I would like to direct the lower judiciary to be vigilant about drawing up of the decree sheet and also about attachment of the decree sheets with- the memorandum of appeal and I would now like to decide the revision petition on its merits to provide substantial justice to the parties leaving aside the above irregularities without findings. The impugned ex parte decree passed by the learned trial Court, though seems to be very short and sketchy and the learned trial Judge has not bothered to discuss the evidence adduced by the present respondent, which ought to have done so, as even he had power to dismiss the suit if after perusal of the record of the case, he would have reached to the conclusion that the suit was false and having no support from the record. Despite the above legal deficiency the decree could not be called without jurisdiction and void ab initio as the day on which the impugned ex parte decree passed was "date of hearing" as it was fixed for final arguments of the case and higher judiciary as well as the august Supreme Court of Pakistan are at consonance with each other on the point that the date fixed for arguments comes within the definition of "date of hearing" hence, the legal resort available, to the present petitioner, to make set aside the decree, was under Order IX, rule, 13, C.P.C. which he availed but after lapse of limitation as Order IX, rule, 13, C.P.C. is governed under Article 164 of the Limitation Act, 1908 which prescribes 30 days of limitation for filing application under Order IX, rule 13, C.P.C. The petitioner was well aware of the legal issue, hence, he filed an application under section 5 of the Limitation Act for condonation of 4 month's delay in submitting the application whereby he has taken plea of being abroad (in China) but both the lower Courts have not considered the plea to be a sufficient cause to condone the delay. I, my self is also of the opinion that, the plea taken by the present petitioner could not be held to be sufficient to condone the delay caused, as if he was abroad, his counsel was not and the counsel might file the application as he is also authorized under law, further more the petitioner might have appointed a person as his attorney to conduct the suit in his behalf if he was interested to contest the suit. The consequent upon the above discussion, the revision petition is dismissed and the impugned decree is maintained. No orders as to cost. H.B.T./16/Glt.????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.