P L D 2002 Supreme Court 394 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This appeal by leave of the Court is directed against the judgment dated 17-7-1994 passed by the Peshawar High Court, Abbottabad Bench. whereby Civil Revision No. 136 of 1991 tiled by the appellant/department was dismissed upholding the judgment/decree of learned Additional District Judge dated 4-2-1991 who had dismissed the appeal filed by the appellant against the judgment/decree of Senior Civil Judge dated 14-10-1985 being barred by limitation.

2. Precisely stating the facts of the case are that on 31-1-1972 respondent/plaintiff filed a suit for declaration/injunction, etc. against the appellant-department in the Court of Senior Civil Judge, Abbottabad. Learned Judge vide judgment/decree dated 14-10-1985 passed a preliminary decree. The Conservator of Forest Department (defendant No.2 before the trial Court) applied for certified copy of the judgment on 22nd October, 1985. However, he could not get the copy because in the meanwhile Abbottabad District was bifurcated into two districts namely Abbottabad and Mansehra. As such application for certified copy filed by the Conservator was returned to him on 19-2-1986 for obtaining the copy from the Court of Mansehra. Therefore, a certified copy of the judgment/decree of the trial Court was supplied to him on 24-2-1986. What happened that in the meanwhile another application was filed by the Divisional Forest Officer on 24-12-1985 and obtained copy of the judgment by making application on 24-12-1985 which was made available to him on the same day.

3. The appellants filed appeal and with the memo. appended copy of the judgment/decree which was obtained by Conservator of Forest Department on 24-2-1986. Learned Additional District Judge dismissed the appeal being barred by time on 4th June, 1991.

4. The appellants preferred civil revision before the High Court against the judgment of dismissal of appeal which too .has been dismissed vide impugned order dated 17-7-1994. Relevant para. from the impugned judgment is reproduced hereinbelow:-- "

4. After hearing the learned counsel for the parties and going through the record of the case I find that besides the copies which were obtained by the D.F.R., an application was made on, 22-10-1985 by the Conservator of Forests through his counsel upon which was written that they should inquire after 10 days. It appears that the applicant went to the copying office on 30-10-1985 on which date it was written that It appears that thereafter the applicant did not go to the copying office for obtaining copy or inquiring about the progress of the matter. The endorsement on the application which is dated 10-12-1985 shows that the application was returned to the applicant so as he should approach the copying office at Mansehra for the needful. The two applications Exh.PA and Exh.PB would show that the same very department i.e. Forest Department had applied for the issuance of copies, one on 22-10-1985 by the Conservator of Forests through his counsel and the subsequent one by the D.F.O. on 24-12-1985 the copies whereof were delivered on the same very day. But the former application was not properly pursued, therefore, copies could not be obtained in time. There seems to be a gross negligence on the part of the functionaries of the Forest Department who did not vigilantly pursue for the issuance of the copies, therefore this lapse occurred due to their fault. In such circumstances the learned Court has rightly held that they were in possession of one copy, therefore, there was no need for obtaining another one and they, simply to cover up delay resorted to this device. In this view of the matter this revision petition is dismissed.

5. Even on merits the petitioners have no case as the preliminary decree was passed by the trial Court and the parties can in the proceedings of the final decree settle their claim. "

5. Learned counsel for the appellants contended that appeal before A.D.J. was within time because the conservator obtained certified copy of the judgment/decree on 24-2-1986, therefore, notwithstanding the fact that in the meanwhile D.F.O. had also obtained a copy on 24-12-1985 but the Conservator being defendant in the suit had his independent right to prefer appeal but the learned High Court without having attended this aspect of the case non-suited the appellants on the consideration that the D.F.O. had already obtained a copy of the judgment/decree on 24-12-1985 beyond the period of limitation. According to him the learned High Court not only non suited the appellant on limitation but had also dismissed the appeal considering it to be without any merits. As such he prayed that because the High Court had not assigned any reason for non-suiting the appellant on merits, therefore, by setting aside the impugned judgment case may be remanded to the High Court for decision of the case on merits.

6. On the other hand learned counsel for the respondent contended that in such-like identical case of Syed Alamdar Hussain Shah v. Muhammad Ramzan and others 1976 SCMR 347 this Court has ruled that appeal should have been filed on the basis of the copy which has been obtained by one of a person on behalf of the appellant and if on the basis of the said copy the appeal was not filed and subsequently the other copy was obtained the appeal would be treated as time-barred. He further stated that the High Court in fact had not decided the case on merits but has made observation that the matter is still open before the Court as preliminary decree has been passed and the "parties will have a right to participate in the proceedings at the time of passing the final decree.

7. We, have heard learned counsel for the parties and have also gone through the impugned judgment passed by the learned High Court as well as Additional District Judge dated 4-6-1991. It is to be noted that the First Appellate Court had non-suited the appellants on limitation considering the appeal filed by them as time-barred. In view of the arguments so raised before us the question arises as to whether the appeal was within time if the application submitted by the Conservator of Forests is to be treated an application for obtaining certified copy of the, judgment/decree which has been obtained by him on 24-2-1986 and in such situation as to whether the application which was submitted later on by the D.F.O. for obtaining a copy beyond the period of limitation on 24-12-1985 would be treated to be a copy which should have been appended with the memo. of the appeal. In this behalf it is to be seen that the Conservator and D.F.O. both were defendants in the suit and there was no hurdle in the way of anyone of them to apply for certified copy of the judgment/decree dated 14-10-1985 for the purpose of filing of appeal because notwithstanding the fact that when there are defendants more than one they have separate right to file appeal being dissatisfied from the judgment operating against them and can prefer an appeal before the Appellate Court in terms of section 96, C.P.C. and for A doing so they can separately obtain certified copy of the judgment intended to be appealed against and out of the copies of judgment one of them could be appended with the memo. of appeal but Court hearing appeal cannot raise objection that as two or more copies of the judgment were obtained therefore, the one on the basis of which appeal became time-barred should be appended or it should be presumed that as on the basis of another copy or judgment which was obtained by one of the defendants the appeal hall become time-barred although same has not been appended with the memo. Of appeal under consideration.

8. In addition to above observation it is an admitted position that the original application dated 22-10-1985 filed by the Conservator for obtaining certified copy of the judgment dated 14-10-1985 returned to him on 19-2-1986 for presentation at Mansehra as such he obtained it on 24-2-1986 and appended the same with the memo. of appeal preferred before the District Judge. Therefore, in our opinion the Conservator of Forests being superior officer in rank had got an independent right to file application for obtaining certified copy of the judgment/decree and appended the same with the appeal, therefore, in such situation learned Additional District Judge as well as the High Court would not have considered that the copy obtained by D.F.O. on 24-12-1985 had rendered the appeal filed by the department time barred.

9. The judgment cited by the learned counsel for the respondent is distinguishable on fact. A perusal whereof would show that in the said case there was only one person who was interested in filing the appeal. Initially copy was obtained on his behalf by some one else but subsequently for the purpose of tiling of appeal he also obtained a copy, therefore, in view of such circumstances this Court observed that copy which was obtained on his behalf by someone else would have been appended with the memo. of appeal whereas in the instant case the defendants were more than one and every one had independent right to tile an appeal against the preliminary decree, jointly or independently and similarly there was no impediment in their way to obtain separate certified copies of the judgment. Thus, no other conclusion can be drawn except that the Conservator of Forests being superior officer had rightly applied for the certified copy of judgment on 22-10-1985 and obtained the same on 24-2-1986 and appended it with the memo. of appeal before the District Judge concerned as such appeal was within time.

10. Now adverting towards the merits of the case it is to be seen that the learned High Court held that the appellant had got no case on merits but the Additional District Judge has not touched the merits of the case at all and dismissed the appeal being time-barred. As such in such situation the learned High Court may have refrained to comment on the merits of the case. Be that as it may, since we are of the opinion that the appellant's appeal was within C time, therefore, instead of remanding the case to the High Court it would be appropriate to remand it to the Additional District Judge, Abbottabad for decision of appeal on merits in accordance with law.

11. For the foregoing reasons appeal is allowed the impugned judgment passed by the High Court as well as the judgment of Additional District Judge are set aside and the case is remanded to the Additional District Judge, Abbottabad for decision of the appeal on merits. Parties are left to bear their own costs. M.B.A./G-96/S Appeal allowed.