2004 PLP 2074 (YLR)

Date of hearing: 13th May, 2004. The petitioner/plaintiff filed suit against the respondent for possession through pre‑emption of land mentioned in the heading of the plaint in the Court of learned Senior Civil Judge/Aala Illaqa Qazi Buner at Daggar. The said suit was resisted by the defendant/respondent by filing written statement. It was on 17‑7‑1995 that the respondent filed an application for dismissal of the suit for non‑performance of Talbs. The said application was resisted by the plaintiff/petitioner by filing written reply. The learned trial Court after hearing the learned counsel for the parties dismissed the suit vide judgment and decree dated 6‑11‑1995. Feeling aggrieved with the said judgment and, decree, the petitioner filed appeal in the Court of learned District judge, Butter at Daggar, which was also dismissed vide judgment and decree dated 10‑2‑1998. Being not contended with judgments and decrees of the Courts below, the petitioner has filed the revision petition in hand.

2. Mr. Qazi Muhammad Jamil, Advocate the learned counsel for the petitioner argued that the petitioner/plaintiff had annexed the copy of the impugned judgment/decree. At the foot of the impugned judgment the decree sheet had been prepared but the learned Appellate Court failed to appreciate the same.

3. It was also argued that the learned trial Court without recording pro and contra evidence of the parties with regard to performance of Talbs had dismissed the suit by only taking into consideration the pleadings of the parties which was not required under the law. The learned Appellate Court should have appreciated that petitioner/plaintiff deserved a chance to substantiate his claim by examining witnesses in support of his respective claims, which opportunity was denied.

4. On the other hand Mr. Khalid Khan, Advocate the learned counsel representing the respondent argued the appellant had neither challenged the impugned decree nor had appended copy of the decree‑sheet, therefore, the appeal filed by him needed summary dismissal and has rightly been dismissed by learned Appellate Court.

5. It was also argued that the petitioner had failed to mention the date, time mid place when he raised Talb‑i- Mowasibat in his plaint, therefore, the learned trial Court has rightly dismissed his suit without recording any evidence. Reliance in this regard was placed on PLD 2003 SC 315.

6. I have heard the learned counsel for the parties at length and perused the record.

7. The perusal of the impugned judgment and decree passed by the learned Appellate Court shows that the petitioner was non‑suited for non‑annexing copy of the decree sheet and even not challenging the decree in his memorandum of appeal. The question that requires determination in this case is as to whether the appeal could be dismissed on the sole ground that decree sheet was not annexed with the memorandum of appeal and the appellant had not challenged the decree in the said memorandum. Answer to the first part of this proposition is in affirmative. It is by now settled law that under section 96 of the Civil Procedure Code an appeal lies against the decree and not against the findings or decision contained in the judgment upon which the decree is based. Under Order 41, rule 1, C.P.C. every appeal is to be P preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment appealed from and (unless the Appellate Court dispenses herewith) of the judgment on which it is founded: This shows that the production of the copy of the judgment can be dispensed with by the Appellate Court but copy of the decree appealed from must be filed alongwith the appeal. A similar question came for hearing in Faqir Muhammad and 48 others v. Province of Punjab through Collector/ Deputy Commissioner and 4 others PLD 1993 Lahore 439; Abdul Majeed and 6 others v. Mst. Halima and 18 others 1987 CLC 2331; Imam Gul v. Mst. Begum Ji 1980 CLC 530; Yasin Sons Ltd. v. WAPDA PLD 1977 Lahore 937; Abdul Sattar and 2 others v. Khuda‑e‑Dad PLD 1986 Quetta 11; Province of Punjab and others v. Zahoorul Hassan Farooqi 1991 CLC. 1288; Rana Allah Ditta v. Muhammad Shafi and others 1990 MLD 2094. In all the above mentioned cases it was held that in absence of copy of decree sheet, appeal would be rendered incompetent.

8. In the case in hand the perusal of the record shows that the learned trial Court had drawn decree‑sheet before the petitioner filed appeal. The argument of the learned counsel for the petitioner that the decree had been drawn at the foot of the judgment has no force. This Court had requisitioned the original file from the Appellate Court. The perusal of the certified copy of the judgment annexed with the memorandum of appeal shows that the petitioner had appended copy of the judgment which did not contain the decree sheet, though at the foot of the judgment it has been mentioned that the decree‑sheet had been prepared but at the time of filing of the appeal, the petitioner did not care to annex copy of the decree‑sheet also. What to speak of annexing the certified copy of the decree‑sheet, the petitioner did not submit any application for grant of time to place copy of the decree‑sheet. Though the petitioner had realized that in the memorandum of appeal, he had not challenged the decree against which he had filed the appeal, therefore, had he filed an application on 3‑9‑1997 for amendment of memorandum of appeal to incorporate the word "decree" therein. The other question which need consideration at this stage is as to whether non‑mentioning the word "decree" in the memorandum of appeal could invalidate the appeal filed by the petitioner, answer to this question is that when the requirements of provisions of Order XLI, rule 1, C.P.C. were duly complied with in filing appeal, such appeal could not be invalidated by mere omission to mention that the same was being filed against decree. This view was taken in Ghulam Hussain and 3 others v. Imam Bakhsh and 5 others 1986 CLC 1083.

9. Since the petitioner had failed to annex copy of the decree‑sheet with the memorandum of appeal and even had not bothered to seek permission from the I Appellate Court for extension of time enabling him to obtain the certified copy of the decree‑sheet and place the same on file, therefore, the appeal filed by him was incompetent and was rightly dismissed by the Appellate Court.

10. I have not been able to find out any illegality or any material irregularity or any jurisdictional error or defect warranting interference in the impugned concurrent findings of Courts of competent jurisdiction. Resultantly the revision petition is dismissed with no order as to costs. H.B.T./124/P Revision petition dismissed.