P L D 1988 Lahore 706 (PLP)

This second appeal against the appellate decree dated 26‑3‑1976 was originally instituted on 3-7-1976 but was returned on 10‑7‑1976 with six office objections including the one that certified copy of the trial Court's judgment may be filed within the period of limitation. Thereafter, the appeal appears to have been re‑tiled only on 24‑4‑1979 at diary No.994 without removal of the objection regarding the copy of the trial Court's judgment or even furnishing any reply thereto. So much so that despite the expiry of a period of almost three years since the requirement had been pointed our by the office, there was not file even an application for dispensation, at that time and on 2‑5‑1979 the office insisted upon rectification of the omission once again returning the appeal which was filed for the third, time on 23‑5‑1979 with a handwritten note by the counsel falsely representing that the objection had been removed. Therein, he also requested that since he is an outstation counsel, therefore, the case be fixed for 4‑6‑1979. However, neither was the required copy filed even at the time of the third institution nor was an application for its dispensation made then. Further, it may be noted that an, application bearing C.M.No.3614/C of 1979 and the date 4‑6‑1979 came on the record under the signature of Sardar Ali appellant at least twelve days after the third institution of the appeal but the same is not signed by the counsel? nor is there available any date on this file with regard to its institution in fact in the Court. The prayer made in this application is. that appeal may be heard without the certified copy of the order of the trial Court where about a further undertaking was given by him for its being filed as soon as made available to him, There however is no order till sate passed on the said 'application and the R.S.A. was given preliminary hearing on 3‑7‑1979 and record was ordered to be summoned. After four more dates the appeal was admitted to regular hearing on 5‑7‑1981 but, again, no order for dispensation of copy of the trial Court judgment was 'passed.

2. The R.S.A. came up for final hearing before me on 20‑2‑1988 when a preliminary objection with regard to imperfect constitution of the second appeal was raised by the learned counsel for the respondent on account of absence of the copy of the trial Courts judgment, not even, dispensed with in accordance with the provision made in Rule 2 of Order XLII of the C.P.C. Counsel for the appellants was not prepare for meeting this objection and he sought adjournment for preparing himself on the point but by availing of the opportunity thus got by him he has, on 11‑6‑1988, instead put in C.M. No.2875/C of 1988 which bear the date 19‑3‑1988 typed at its foot and a court‑fee of the value of Rs.5 bearing the date 4‑4‑1988 has been affixed thereon. In this application, while misrepresenting that a direction had been given by the Court for filing of the trial Court's judgment, it has been stated that the annexed copy of the trial Court's judgment has been obtained now. There is not any explanation even worth the name attempted to be given in this application with regard to the default continuing since the year 1976 in the circumstances set out about in all the relevant details. Although particulars of the certified copy have not been entered on the copy of the trial Court's judgment so filed, the one of the trial Court's decree accompanying therewith mentions the application number as 18114 filed only on 5‑3‑1988 for supply of copy and presumably the same are the particulars relating to the copy of the judgment.

3. Now there are the above‑mentioned two applications awaiting disposal. As regards the former, bearing C.M. No.3614/C of 1979 it is sufficient to observe that even if the prayer made therein be capable of being spelled out as the one to dispensation) of copy of the trial Court's judgment even then the appellant will not be able to get any benefit because such a prayer could be capable of being allowed only by the admitting Bench before whom it was not pressed and no order on the point was passed As such, the prayer is not tenable at this stage of final hearing The petition has been rendered infructuous and is rejected accordingly. So far as the second application goes, although it proceed upon a deliberate misstatement made by the Advocate of the appellants and is also the product of his indiscreet conduct, yet, since the prayer made therein is simply this that the required copy of the trial Court's judgment may be taken on the record, therefore, there cannot be any objection in its being formally allowed. The same is accordingly accepted and disposed of.

4. In consequence of the acceptance of the last‑mentioned application, the defect with regard to the constitution and competence of the R.S.A. gets removed but only from this moment so that it will be deemed to have been validly instituted only today, after twelve years of the passing of the appellate decree in the year 1976. There are several reported cases holding that a regular second appeal without a copy of the judgment of the Court of first instance is incompetent. Reference may be made only to Molu Mal v. Sri Ram and others AIR 1921 Lah. 73; Mathra and others v. Ram Singh and another A I R 1927 Lah. 747 and Muhammad Afzal Khan Lodhi v. Isittwic itepublic of Pakistan P L D 1968 Lah. 1205 wherein it is also held that delay in filing such a copy can be condoned only under the provisions of section 5 of the Limitation Act but there is neither a prayer made in: this case for condonation of delay nor has any cause been set up for 'the purpose.

5. This R.S.A. is thus, hopelessly barred by time and is accordingly dismissed under section 3 of the "Limitation Act. Parties are left to bear their own costs hereof. A. A. /S‑285/L Appeal dismissed.