2015 PLP 1412 (MLD)

MOHAMMAD AZAM KHAN, C.J.

The above titled appeal by leave of the Court arises out of the judgment of the High Court dated 30th October, 2012, whereby Civil Appeals No.34 of 2005 and 55 of 2006, filed by the appellants herein, have been dismissed through a consolidated judgment.

2. At the outset, Syed Nazir Hussain Shah Kazmi, Advocate, counsel for the respondents, raised a preliminary objection that the appeal is not competent because the copy of memorandum of Civil Appeal No.55 of 2006, titled Nazar Muhammad and others v. Khadim Hussain and others in the High Court has not been annexed with the petition for leave to appeal which is a violation of Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978. The appeal merits dismissal.

3. Barrister Huymayun Nawaz Khan, Advocate, counsel for the appellants, submitted that two appeals; one bearing No.34 of 2005, titled Muhammad Azam and others v. Khadim Hussain and others and the other bearing No.55 of 2006, titled Nazar Muhammad and others v. Khadim Hussain and others were filed in the High Court from the same judgment of the District Judge, Sudhnoti. Both the appeals have been decided through a consolidated judgment. The certified copy of the memorandum of Appeal No.34 of 2005 has been annexed with the petition for leave to appeal while photo copy of the memorandum of Civil Appeal No.55 of 2006 titled Nazar Muhammad and others v. Khadim Hussain and others has been annexed which is certified by the Advocate who filed the petition for leave to appeal. Since both the appeals were decided through a single judgment, therefore, it was sufficient to annex the copy of one memorandum of appeal and the copy certified by the counsel, which is sufficient compliance of Order XIII, Rule 3.

4. We have heard the learned counsel for the parties and perused the record. From the judgment and decree of the District Judge, Sudhnoti dated 16th August, 2006, two appeals; one titled Muhammad Azam and others v. Khadim Hussain and others, bearing No.34/2005 and second; Nazar Muhammad and others v. Khadim Hussain and others, bearing No.55/2006 were filed by the appellants in the High Court. Both the appeals were dismissed by the High Court through a consolidated judgment on 30th October, 2012. Rule 3 of Order XIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, provides the documents which shall be filed along with the petition for leave to appeal. The same is reproduced as under:-- Rule 3 of Order XIII: 3. "(1) The petitioner shall lodge at least four copies of:-- (i) his petition for special leave to appeal; (ii) the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under section 42(11) of the Constitution, if any, one copy each of which shall be certified to be correct; (iii) . (vi) ." A perusal of rule makes it mandatory that petitioner shall lodge at least four copies of the petition for leave to appeal from the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court. The provisions of above mentioned Rule are mandatory and non-compliance results into dismissal of the petition for leave to appeal. This court in a number of cases has observed that provisions of Rule are mandatory and non-compliance of Rule 3 of Order XIII results into dismissal of the petition for leave to appeal. It was observed in case titled Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others (2000 SCR 70), which is as under:-- "From these provisions it is clear that grounds of the application filed before the petition for leave to appeal and that an application includes one under section 44 of the Azad Jammu and Kashmir Interim Constitution Act. As held in a number of cases mentioned above, omission to file copy of the application is a fatal defect for which the appeal has to be dismissed."

5. We have also considered the argument of the counsel for the appellants that photostat copy of the memorandum of appeal filed Nazar Muhammad and others v. Khadim Hussain and others, Civil Appeal No.55 of 2006 is attested by the Advocate who filed the petition for leave to appeal, has been annexed with the petition for leave to appeal which is a sufficient compliance of the relevant Rule. Under Article 87 of the Qanun-e-Shahadat Order, 1984, photostat copy of public documents, shall not be admissible unless it has been certified to be the true copy, by the officer concerned who has the custody of the original document. In a recent judgment of this Court delivered in case titled Iffat Bibi v. Azad Government and others (Civil Appeal No.6 of 2013, decided on 13th May, 2014) it was observed as under:-- "The seniority list issued by the Government appended with the appeal in the Service Tribunal and attested by the Advocate-General is not a certified true copy under Article 87(2) and does not fulfill the requirement of Rule 7(e) of the Azad Jammu and Kashmir Service Tribunals (Procedure) Rules 1976. The copy appended with the memorandum of appeal is not a certified true copy of original seniority list. It is only a photocopy and photocopy is not admissible in evidence." In another case titled Saira Bashir Butt v. Azad Government and 7 others, (Civil Appeal No.181 of 2013, decided on 18th June, 2014), it was observed as under:-- "The rule makes it obligatory that application/petition, apart from setting out the name and description of the applicant, exact nature of the relief sought and the ground on which it is sought, shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexure if any. The filing of certified copy of the impugned order is mandatory. The photocopy cannot be relied upon." The argument of the counsel for the appellants has no force, therefore, it is hereby repelled.

6. The photostat copy of memorandum of appeal attested by the Advocate cannot be treated as copy under Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978. The PLA/appeal has been filed incompetently, it merits dismissal.

7. Since we have reached the conclusion that petition for leave to appeal has not been competently filed it merits dismissal, therefore, there is no need to dilate upon the facts of the case. The result of the above discussion is that the PLA/appeal is incompetently filed merits dismissal. The same is hereby dismissed with no order as to costs. AG/3/SC(AJ&K) Appeal dismissed.