1996 (PLP)

(3) Whether the suit of the plaintiff is false, frivolous and vexatious and the defendants are entitled to special costs under section 35‑A, C.P.C,? OPD. (4) Whether the plaintiff is entitled to a decree for possession through partition? OPP. (4‑A) Whether the suit is not maintainable in view of preliminary objection 5 of the amended written statement? OPD. (5) Relief.

4. Learned trial Court after considering the evidence of the parties on the record decreed the suit to the effect that the plaintiff Sultan is ‑entitled to partition of the house to the extent of 25/42th shares while the remaining 17/42th is the ownership of the defendants. Consequently a preliminary decree was passed and Syed Saleem Raza Bokhari, Advocate was appointed as local commission to effect the partition at the spot after giving notice to the parties in the light of the provisions of rules 13 and 14 of the Order XXVI, C.P.C. Thereafter, final decree was passed by the learned Civil Judge on 10‑4‑1991, against which an appeal was filed by Noor Muhammad etc., on 27‑5‑1991 without filing copy of the decree therewith. it was stated that the decree sheet has not been prepared and its copy will be filed as soon as it is prepared by the trial Court. Copy of the decree was not filed till 20‑12‑1995 and the learned Additional District Judge finding that the copy of the decree has not been filed by the appellants, he dismissed the appeal being not maintainable vide the impugned judgment and decree dated 20‑12‑1995. It was observed by the learned Appellate Court that: "It is now an admitted position that the final decree was based upon a report of the Local Commissioner which was not objected to by the parties and the decree was in fact prepared on 16th June, 1991 which is on the file of the trial Court but the appellants have not obtained its copy uptil now and no application for obtaining the copy was filed.

5. The appeal is not maintainable for not filing the copy of the decree. The appeal shall be deemed to have been properly instituted on filing the copy of the decree and by now the same has become barred by time. " 5. . Learned counsel for the petitioners has contended that appeals without decree could also be filed and as such the learned Appellate Court wrongly dismissed the appeal being not maintainable. In support of his plea, he has 'relied upon Haji Jehanzeb v..Khalid Khan (PLD 1983 Peshawar 215). This judgment is not of any help to the petitioners. It was observed therein that the appeal filed without copy . of decree was admitted to regular hearing because of lack of checking by the Officer of Appellate Court and found correct and office failed to point out the omission in time when still time to file appeal had not run out. In these circumstances it was held that in absence of the decree‑sheet the appeal was incompetent. Presentation of defective appeal should be carefully scrutinised at initial stage to remedy defects. After the appeal has passed through stage of admission through oversight of the office, then the fair and rational' course to adopt was to adjourn the hearing of the appeal with the direction that .the appellant should produce the certified copy of the decree as soon as it is obtained. If it was not so done, the litigant deserved to be protected. As the office of the District Judge was equally negligent in not pointing out that the appeal was defective being not accompanied by a decree‑sheet, resulting in its admission the District Judge was directed to pass an order condoning delay in filing copy of the decree‑sheet and decide appeal on merits.

6. In the present case it was stated by the petitioners that the copy. of the decree has not been prepared and it shall. be filed as and when it is made available to them. The impugned judgment shows that the petitioners have not even. applied for the decree The appeal was filed on 27‑5‑1991 and was dismissed on 20‑12‑1995 being not maintainable for lack of filing of .copy of the decree. Above Judgment is, therefore. of no avail to them.

7. Similarly the petitioners have relied upon Baseer Ahmad Siddiqui v. Shama Aforze (1988 SCMR 892). In this case. copy of decree‑sheet was supplied after period of limitation as the same was not supplied by the Trial Court. The respondent obtained requisite copy and filed alongwith an application for condonation of delay. The appeal was disposed of without adverting to petitioner's objection and question of limitation. High Court taking view that requirement of Order XLI. Rule 1, C.P.C. to the effect that cop v of decree shall be accompanied with memorandum of appeal was a directory provision and the respondent not being at fault in not obtaining a copy of decree from trial Court and copy of decree having been received by appellate Court alongwith record of suit was sufficient to satisfy this requirement Supreme Court declined to interfere holding that in substance High Court has condoned delay in submitting decree‑sheet by respondent after filing of appeal. This judgment again is not relevant as in the instant case the petitioners have giver' an undertaking that copy of the decree‑sheet shall be supplied as and when the same is prepared and in spite of fact that decree was prepared till the final date of hearing the petitioners did not supply. Even they did not apply for the same.

8. Abdul Majeed and 6 others v. Mst.Haleema and 18 others (1987 CLC 2331) fully supports the view taken by the learned Appellate Court. In this judgment it has been held: "The production of a copy of the judgment can be dispensed with by the Appellate Court but a copy of the decree appealed from must be filed alongwith the appeal. Undoubtedly when the trial Court did not prepare the decree‑sheet, the District Judge. should have granted time to the appellant to get the decree prepared and filed with the appeal during the period of limitation. The appeal was filed on 21‑1‑1985 and the copy .of the decree‑sheet was not appended with the file till 28‑5‑85 when the appeal was decided. The petitioners did not bother to apply to the trial ' Court for preparation of the decree nor did they care to ask the District Judge to direct the trial Court to prepare a copy of the decree. They did not move any petition for the condonation of delay as envisaged under section 5 of the Limitation Act, 1908. They did not know when the decree‑sheet was prepared and they were indolent for a period of more than four months in filing the copy of the decree sheet. In these circumstances the Appellate Court was, held, justified to dismiss the appeal. Above‑referred judgment is fully applicable to the ' facts and ,circumstances of the instant case. Neither the petitioners applied to the trial Court for 'supply of the certified copy of the decree nor they moved the Appellate Court for direction to the trial Court for preparation of the decree. The appeal remained pending before the Appellate Court from 27‑5‑91 to 20‑12‑1995 and despite expiry of more than four years, the petitioners failed to file the copy of the decree‑sheet, although they undertook to file the same as soon as it wa s prepared. Provisions of Order XLI, rule 1, C.P.C. regarding filing of decree sheet alongwith memorandum of appeal are mandatory in nature which have no been bcomplied with by the petitioners. The impugned judgment an(. decree ca 'mot he be illegal in any manner whatsoever. The Appellate Court was left with no alternative but to dismiss appeal being incompetent. For the above reasons, there is no force in the revision petition Rich i., dismissed. No order as to costs. A .A/A‑29/L