1988 PLP 892 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This petition for leave to appeal arises out of judgment dated 28th March, 1985, by a learned Single Judge of the Sind High Court, whereby the revision application of the petitioner was dismissed.

2. The facts are that by an agreement of sale dated 11th October, 1971, the petitioner agreed to sell to the respondent an open plot of land at Karachi, for a consideration of Rs.1,1000 out of which a sum of Rs.2,500 was paid to the petitioner at the time of agreement and the balance of the consideration was payable at the time of registration of the conveyance deed, according to the stipulations of the contract between the parties. The petitioner had undertaken, inter alia, to obtain the lease of the plot from the K . D . A . and the sale‑deed was to be completed within the period of one month. As the petitioner finally declined to perform his part of the contract, the respondent brought a suit for specific performance of the agreement of sale. The main defence of the petitioner was that after obtaining the lease from the K.D.A., he had informed the respondent for completing the transaction, but as she failed to do so, by notice dated 20th January, 1973, he revoked the agreement. The civil Court dismissed the suit on 22nd December, 1977.

3. The respondent, being aggrieved by the decision of the trial Court filed an appeal on 2nd January, 1978, but as according to her the decree had not yet been prepared, the appeal was not accompanied by the copy of the decree and was only presented with a copy of the judgment. In the circumstances the learned Additional District Judge admitted the appeal to regular hearing and issued notice to the respondent. The latter after putting in appearance before the appellate Court on 23rd May, 1978 made an application raising objection that the appeal was not in proper form as the copy of the decree was not attached therewith and was accordingly barred by limitation. It is stated at the bar by the learned counsel for the caveator that the respondent had applied for the copy of the judgment and decree on the same date when the judgment was announced by the trial Court. According to him on 2nd January, 1978, when the appeal was presented the decree was not yet prepared and signed by the trial Court and since the record of the case was called for by the appellate Court on 9th January, 1978, the copy of the decree was not supplied to the respondent by the trial Court. In the circumstances the respondent applied to the appellate Court, obtained a copy of the decree and submitted it alongwith an application for condonation of delay on 23rd July, 1978.

4. It seems that without 'averting to the question of limitation and without disposing of the said two miscellaneous applications, the learned Additional District Judge disposed of the appeal on merits, with the result to by judgment dated 16th April, 1980, he allowed the appeal of the respondent and decreed the suit for specific performance. It is against this judgment and decree, that the petitioner filed revision application before the High Court which was dismissed by the impugned order.

5. In support of this petition, learned counsel contended that the view taken by the learned Judge in the High Court that the requirement of Order 41, rule 1, C.P.C., to the effect that copy of the decree shall be accompanied with the memorandum of appeal was a directory provision and that the copy of the decree received by the appellate Court alongwith the record of the suit was sufficient to satisfy this requirement, was erroneous. On hearing the learned counsel for the parties and perusing the impugned judgment, we, however, do not feel called upon to examine this contention. The fact remains that the respondent submitted application for copy on the same date when the judgment was announced by the trial Court. According to his affidavit before the appellate Court he had applied for the copy of the judgment and the decree, but somebody had scored off the word "decree" from the application for copy. The learned counsel for the petitioner was unable to controvert this assertion and only stated that the respondent herself must have done so because the decree was not yet prepared. In our view it is highly improbable for an advocate only to apply for the copy of judgment and not for decree as well, particularly when the party for whom the application was made was keen to file an appeal. The other glaring fact was that the decree was admittedly prepared and signed on 2nd January, 1978, incidentally on the same date on which the memo of appeal was presented. Soon thereafter the record was called for by the appellate Court. All these facts clearly make out a case for condonation of delay in presenting the copy of the decree sheet after obtaining the same from the appellate Court. Learned counsel for the respondent submitted that it is in these circumstances that the petitioner did not press his objection before the appellate Court and consequently no order was passed by the appellate Court on the application for condonation of delay.

6. The other aspect of the case is that if the respondent had actually made an application for copy of the decree before the trial Court, there is nothing on the record to indicate whether this copy was prepared and notice given to the respondent that the same is ready for delivery. All these circumstances seem to justify the conclusion of the High Court that the respondent was not at fault for not obtaining a copy of the decree from the trial Court. In these circumstances we feel that it is not necessary to determine the question of law raised by the learned counsel, as we do not consider this a fit case to determine the same. In substance the High Court had condoned the delay in submitting the decree sheet by the respondent after the filing of the appeal.

7. On the merits it was urged by the learned counsel‑for the petitioner that the respondent was guilty of the breach of contract by not fulfilling her part of the contract after being informed that the petitioner had obtained lease from the K . D . A. We are not satisfied with this submission as the learned counsel admitted that the petitioner had not intimated the respondent regarding the fact of his having obtained lease from the K.D.A. by a notice in writing. A mere oral assertion by the petitioner is not sufficient and was found not to have been proved by the Court of appeal. It was, therefore, rightly held that the petitioner had no justification to revoke the agreement for sale.

8. For the foregoing reasons there is no merit in this petition which is accordingly dismissed. M.I. /B‑39/S Petition dismissed.