1993 PLP 2329 (MLD)

Haji M. Iqbal for Petitioner. Mirza Hafizur Rehman for Respondents. Date of hearing: 6th October, 1992. This revision is directed against the judgment dated 28‑1‑1991 whereby the learned Additional District Judge, Lahore dismissed the appeal of the, petitioner with the observation that the appeal is not legally competent as neither the certified copy of the impugned preliminary decree has been filed till date nor there is any request for grant of time, to file the certificate copy of the decree.

2. I have heard the learned counsel for the parties. The learned counsel for the petitioner submitted that the decree had not been prepared by the learned trial Judge when the judgment granting the preliminary decree was passed on 18‑4‑1989 and that the memo of appeal filed by the petitioner was accompanied by an application under‑Order XLI, rule 1 read with section 151, C.P.C. for dispensing with the filing of certified copy of the impugned decree. It is added that till the date of dismissal of the appeal on 28‑1‑1991 the petitioner was not aware that the decree had been prepared and it was in these circumstances that the request to grant time for filing of the certified copy was not made. The learned counsel submitted that in fact on a previous date the learned appellate Court had heard the arguments on merits and thereafter on request of the parties to cite precedents, the appeal was adjourned to 28‑1‑1991 on which date at the early hours, the appeal was dismissed in absence of the parties and their counsel. The learned counsel lastly submitted that throughout pendency of the appeal it never came to the notice of the learned counsel representing the petitioner before the appellate Court that any direction to prepare the decree was passed by the appellate Court or that the file was received back after preparation of the said decree. The version of the learned counsel was that throughout this period, the petitioner has been making efforts to locate the file of the suit but without any success. He asserted that on account of non‑filing of the certified copy of the decree, the appeal should not have been dismissed.

3. A perusal of the file of the appellate Court however shows that the appeal was presented without certified copy of the decree on 18‑5‑1989 when the same was admitted and the notice was ordered to be issued to the: respondent and record was summoned. The record was received by the appellate Court on 13~'r1990. None appeared on behalf of the parties and the learned appellate Court observed that examination of the said file revealed that decree sheet had not been prepared, as such a direction was passed to send the file back for preparation of the decree sheet by the trial Court. It was also directed that the appellant should obtain certified copy of the impugned decree for filing the same in appellate proceedings. The appeal came up again on 7‑7‑1990 when in the presence of learned counsel for the parties it was directed that a reminder be issued to the trial Court to return the file after preparation of the decree sheet. The appeal then came up before the Court on 30th September, 1990. The appeal was adjourned to 6th October, 1990 as the Presiding Officer was on leave after noting that the trial Court has returned the file after doing the needful. From the next date of hearing till 16‑1‑1991 the appeal was adjourned once on the request of learned counsel for the appellant and twice as the Presiding Officer was on leave. On 16‑1‑1991, arguments were addressed by the learned counsel for the parties and the appeal was adjourned to 28‑1‑1991 for citing case‑law in support of the respective pleas. On the adjourned date, none appeared and the appeal was, however, dismissed on account of non‑filing of certified copy of the decree as even a request to grant time to file the certified copy of the decree sheet was made. Learned counsel for the petitioner submitted that on 16‑1‑1991 the matter of non‑filing of certified copy of the decree was not pointed out as learned counsel for the parties argued the appeal on merits only. Mr. Hafeez‑ur‑Rehman, Advocate learned counsel for the respondent, however, challenged this statement and stated that while arguing the appeal on merits he had raised question of incompetence of the appeal on account of non‑filing of the certified copy of the decree.

4. A certified copy of the decree of the trial Court is available on the ale of the revision petition. This certified copy was applied on 30‑1‑1991, that is, two days,after dismissal of the appeal and the same was supplied to the petitioner on 19‑2‑1991 on the application‑ registered at No.2m This application admittedly was filed after dismissal bf the appeal. The learned counsel stated that he had submitted earlier an application' (registered at S.No3494 dated 13‑5‑1989) for supply of certified copy of the decree, but copy of the decree was not supplied as noire had been prepare. The petitioner may have submitted an application on 13‑5‑1989 for supply of certified copy of the decree. It is also correct that the decree sheet was not initially prepared by the trial Court and that it was prepared only under the direction of the appellate court when the record was remitted to it. The petitioner, however, diligent in applying for the certified copy is tune. The file of the trial Court after preparation of the decree sheet, was received by the appellate 3‑9‑1990. The fate w noted Court on the appellate Court in presence of 'the parties. This was a sufficient notice. Had the petitioner or his counsel acted gently they would have received the certified copy of the impugned decree by making application in the said Court rather than searching e file is the trial Court. No action was taken since 3‑9-1990 to 28‑1-1991. The petitioner knew that he had filed the appeal without certified copy of the decree sheet and sufficient time was available with him to file the same after sheet had been prepared. In these circumstances, the appellate Court had alternative but to dismiss the appeal being incompetent due to non‑filing of certified copy of the decree sheet. The petitioner has to blame none except himself for his default. No case is, thus, made out for interference in the impugned judgment. The revision petition fails and is dismissed with no orders as to costs. A.A./B‑46/L ?????????????????????????????????????????????????????????????????????????? Revision dismissed.