1990 PLP 2140 (MLD)

2. Appellant on 5‑7‑1988 filed a civil suit claiming suspension of letter No.909‑326/S.T.A. dated 30‑6‑1988 issued by respondent No.3 (Assistant Director of Supplies) and consequential relief for restraining respondents from giving effect to the same: Respondents resisted the suit and riled a detailed written statement on 27‑8‑1988. Maintainability of suit was specifically challenged. Assertions regarding merits of the claim were expressly repudiated. However, execution of contract‑agreement for year, 1987 was admitted.

3. Alongwith suit application for interim injunction under Order 39 rule 1 and 2 C.P.C. was alto filed, which too was opposed by the respondents. However, learned Additional District Judge‑I, on 12‑7‑1988 passed an ad interim order suspending operation of letter, dated 30‑6‑1988.

4. Feeling aggrieved from it, respondents preferred Civil Miscellaneous Appeal No.16 of 1988 before this Court which was eventually dismissed by short order, dated 10‑8‑1988. The matter remained pending before trial Court for the disposal of various miscellaneous applications. However, proposed issues were furnished to the Court on 27‑4‑1989. Latter following three issues were framed on 21‑10‑1989 and case postponed for evidence of parties. (1) Whether the suit is not competent in view of preliminary objection A/B of W.S.? (2) Whether the plaintiff is entitled for relief claimed for? (3) Relief. Appellant was provided several opportunities for adducing evidence but on his failure to comply with directions of the Court; original suit was dismissed on 16‑12‑1989 under Order 17, Rule 3, C.P.C. Present appeal now challenges above‑said order and decree. .During the pendency of appeal, a preliminary objection was raised by Mr. Muhammad Riaz Ahmed, learned Standing Counsel about maintainability of appeal. On the plea that decree‑sheet was not attached with the memo of appeal. Subsequently on 7‑6‑19% learned counsel for appellant filed copy of decree sheet alongwith an application under section 5 of Limitation Act, praying for condonation of delay in filing the same. It was asserted that omission to furnish decree sheet was mainly on account of misunderstanding and bona fide mistake. This application was also vehemently opposed.

5. Mr. Ejaz Yousaf, learned counsel for appellant to meet objection regarding non‑filing of decree sheet, relied on the principles enunciated in following reported cases: (i) Ali Zaman v. Qasim Jan and others PLD 1984 AJK 61; (ii) Baseer Ahmad Siddiqui v. Shama Afroze 1985 CLC 1711. Whereas Mr. Muhammad Riaz Ahmed, learned Standing Counsel stranuously contended that ii was a case of gross negligence oil the part of appellant, and each day's delay was required to be explained. Reliance was placed by him on the observations in cases mentioned below:‑‑ (i) Shahid llussain v. Lahore Municipal Corporation PLI3 1981 Supreme Court 474, (ii) Commissioner, Income Tax, Lahore Zone v. Rais Pir Ahmed Khan 1981 SCMR 37, (iii) Muhammad Raza and otlicrs v‑. Mst. Aalia and others 1987 SCMR 1819.

6. As regards merits of appeal, Mr. Ejaz Yousuf mainly urged that in the instant case no evidence was needed because only question for determination related to interpretation of clause (19) of the Contract agreement admittedly executed between the parties. 1n this behalf reliance was placed on the observation in cases; (i) PLD 1909 SC 270 and (ii) 1986 CLC 1435.

7. Mr. Muhammad Riaz, learned Standing Counsel stranuously contended that irrespective of admission in written statement plaintiff/appellant should have at least tendered in evidence original contract, which was sought to be interpreted. According to him appellant had conducted most negligently, therefore, suit was rightly dismissed.

8. I have carefully considered the arguments advanced by learned counsel for parties. It is an admitted feature that decree‑sheet was not filed by appellant alongwith memo. of appeal. Undoubtedly filing of decree‑sheet with memo of appeal is a mandatory requirement of law; and failure to furnish it within prescribed period of limitation, is normally fatal. In this case appellant however slept for sufficient period, and submitted copy of decree sheet only after specific objection concerning maintainability of appeal was raised by respondents. It may be seen that High Court of Azad Jammu and Kashmir in case Ali Zaman v. Qasim Khan PLD 1984 AJK 61 after exhaustively considering views of superior Courts in various reported judgments regarding non‑filing of decree‑sheet alongwith memo of appeal, came to following conclusions which are highly instructive. "After giving my best consideration to the preliminary objection and in the light of the authorities mentioned earlier. I hold that this appeal is not competent the copy of decree of the District Judge which was passed and prepared on 15‑5‑1983. The appeal was drafted on 6‑7‑1983 and filed in the High Court on 13‑8‑1983 on the last day of the period of limitation. The appellant slept over the matter for a pretty long time and never bothered to file the copy of decree sheet alongwith and even after the presentation of the appeal before the High Court. Even no verbal request was made before me or an application moved by learned counsel for the appellant to the effect that he would bring the copy of above decree sheet. I am afraid, I cannot put premium to his carelessness, contumacious neglect and failure to append the copy of decree sheet with the memorandum of appeal. Let me make it clear that the right of appeal is creature of a statute. In all suits of all nature triable by the Courts, under section 9 of the C.P.C., such right is created by section 96 of the same Code. I wish, to lay special emphasis on the word `decree occurring in section 96 and say that it is only the decree against which an appeal lies not withstanding any decision arrived at in the judgment unless of course the judgment has itself the force of decree. Hence a copy of the decree must be attached with the memorandum of appeal provided is drawn up and applied for within the period of limitation fixed for appeal or a case of condonation of delay is made out some reasonable cause.

16. However, as I am bound even by the obiter dicta of our Supreme Court, I feel advised not to dismiss this case on the preliminary objection alone. Now I propose to deal with the three points raised by the learned counsel for the appellant." sheet was not submitted till expiry of prescribed limitation. Therefore, question, relates to pure discretion of Court in allowing concession of condonation of delay' in submitting copy of decree. Admittedly record of the case had been summoned much before objection was raised and original decree sheet was already before this Court. Circumstances narrated in the application for condonation clearly explain element of counsel's misunderstanding and factum of bona fide mistake. Thus fortified by the dictum laid in aforementioned judgment of Azad Jammu and Kashmir High Court PLD 1984 AJK 61 (relevant portion whereof is already reproduced above) I am inclined to overrule the preliminary objection.

9. Now reverting to merits, it may be seen that suit of appellant has been dismissed under Order 17 Rule 3, C.P.C. for non-production of evidence despite several opportunities. At this stage it is pertinent to refer order sheets which indicate that proposed issues, furnished on 27-4-1989 were not objected to by appellant. However, case fixed for evidence on 21-5-1989 subsequently suit was also dismissed for default, but again same stood restored on 27-9-1989. Record reveals that factually trial Court framed three issues on 21-10-1989, and case was fixed for evidence on 23-11-1989 and thereafter postponed to when eventually suit was also dismissed. There exists some confusion, because after framing of issues on 21-10-1989 practically only one opportunity has been allowed for producing evidence- When confronted with this position learned counsel for respondent could not effectively explain the same. Any how, perusal of pleadings disclosed that execution of contract-agreement concerning supply of meat to respondent No.3 during 1-7-1987 to 30-6-1988 and existence of saving clause (19) in the agreement PAFZ-2120 has not been denied in the written statement. The only moot question which apart from preliminary objections required adjudication was about validity/justification for continuing supply of goods during extended period of 68 days by invoking clause (19-B) of the Contract. 1t is the case of appellant that copy of admitted contract being on record trial Court was bound to decide the matter by interpreting it relevant clause. There is sufficient force in the arguments. Besides provisions of Order 17(3), C.P.C. being penal in nature ought to have been invoked as an extreme measure on contumacious failure of plaintiff/appellant in complying with directions of the Court. Failure to produce evidence on two occasions by itself cannot be deemed sufficient for proceeding to decide the case forthwith. Additionally onus concerning issue of maintainability was primarily on the respondents but there is no mention about it in the impugned judgment.

10. As regards merits even though trial Court be justified for closing appellants side, yet it was bound to decide the case on the basis of record. Impression of the trial Court that after closing plaintiff's suit must necessarily be dismissed is totally ill-founded and incorrect. True legal position has been discussed in case 1986 CLC 1435. Circumstances clearly disclose that trial Court has not properly exercised jurisdiction vested in it within the purview of Order 17, T Rule 3 C.P.C. The failure to dilate upon this aspect and omission to comment on merits is certainly fatal and constitutes serious defect in the impugned judgment For the above reasons, impugned judgment and decree is set aside, case is remanded to the trial Court with directions to allow the appellant to produce copy of contract with opportunity of rebuttal if any claimed by respondents and facility to parties for addressing arguments and thereafter to finally decide the matter, in accordance with law. Appeal disposed of in the above terms, with no order regarding costs. AA./354-Q Case remanded.