1983 PLP 299 (SCMR)

‑‑ Art. 185(3) read with Civil Procedure Code (V of 1908), O. XLI, r. 2 & S. 151‑Appeal‑Limitation‑Appellant failing to supply certified copy of trial Court's judgment within extended time granted by High Court‑Order of High Court dismissing appeal as not properly constituted and having become barred by time‑Held, justified in circumstances of case‑Leave to appeal refused.‑[Limitation]. Talib Hussain Rizvi, Advocate Supreme Court and S. All Imam Naqvi, Advocate‑on‑Record for Petitioners. Hassan Ahmad Khan Kanwar, Advocate Supreme Court and Inayat Hussain Shah, Advocate‑on‑Record for Respondents. ASLAM RIAZ HUSSAIN, J.‑The petitioner seeks leave to appeal against the judgment of the High Court dated 31-10-1975 dismissing their R. S. A. in a pre‑emption matter.

2. The facts giving rise to the petition are briefly that Syed Manzoor Hussain the predecessor‑in interest of the petitioners filed a suit for pre emption against the respondents, which was dismissed by the trial Court. His appeal before the Additional District Judge was also dismissed. He then filed an R. S. A. in the High Court. The appeal was filed on the last but one day of the period of limitation but the memorandum of appeal was not accompanied by a certified copy of the judgment of the trial Court as required by rule 2 of Order XLVII, C. P. C. as added by the Lahore High Court. The petitioners, however, filed an application under section 151, C. P. C. along-with memo. of appeal stating therein that although he had applied for the copy of trial Court's judgment, it had not been supplied to him so far and prayed that filing of the said certified copy may be dispensed with till such time that it is supplied to him. High Court granted the prayer on the assurance that the certified copy of the said judgment would be filed as soon as it was supplied to him. The certified copy was, however, not supplied to the Court till the appeal was fixed for hearing. On a preliminary objection being raised by respondents, the High Court dismissed his R. S. A. as barred by limitation on the ground that an appeal unaccompanied by a certified copy of the judgment of the Court of the first instance, without a cogent reason, and within the time granted for the said purpose, was not a properly presented appeal. Feeling aggrieved the petitioners have challenged this judgment through the present petition.

3. The learned counsel for the petitioners submitted that the petitioners' predecessor‑in‑interest had applied for the certified copy of the trial Court's judgment on 8‑I1‑1964 and filed the R. S. A. on 30‑11‑1964. He admitted that the certified copy of the said judgment was prepared and delivered to him on 6‑1‑1965 but he did not file it till 22‑10‑1975, i.e. for more than ten years. It is evident that the High Court had not dispensed with filing of certified copy of said judgment altogether but only till such time that it was supplied to him by the copying branch. In this view of the matter we feel that the High Court was justified in dismissing the appeal on the ground that since the certified copy of the trial Court's judgment had not been supplied within the extended time granted by the High Court, the appeal was not properly constituted and had become barred by time. The petition is consequently dismissed as being without any merit. Petition dismissed.