1988 PLP 1958 (SCMR)

NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the judgment dated 1‑10‑1980 passed in R . S. A . No.362 of 1980. The facts, which form the background, are that the respondent filed a suit for damages against the appellants for causing the injuries to him which resulted in the amputation of his left arm. The learned Civil Judge decreed the suit for Rs.30,000 but on an appeal the learned Additional District Judge reduced the decree to Rs.21',

000. The appellants then filed a second appeal before the Lahore High Court on 27‑2‑1980. The appeal was not accompanied by the certified copy of the trial Court's judgment but an application undo Order XLII, Rule 2, C.P.C. for dispensing with it was filed. The appeal was returned to the appellants on 2‑3‑1980 for making up the deficiency in the court‑fee and the appeal refiled in the High Court after making it up on 8‑4‑1980. Thereafter, the appeal came up for hearing on 21‑5‑1980. The application for dispensing; with the copy of the judgment of the trial Court was taken up first but this was refused and it was ordered that the appeal be put up after the copy is filed. It was only thereafter that the appellants applied for a copy of the trial Court's judgment (on 29‑5‑1980) and the copy was supplied on the same day. The copy, however, was not filed in the High Court immediately but some three months later or, 17‑8‑1980 and it was only thereafter that the appeal ultimately came up for hearing on 1‑10‑1980. The learned Single Judge, who heard the matter, came to the conclusion that the appeal was barred by time. He pointed out that Order XLII; Rule 2 of the C.P.C. provides that "in addition to the copies specified in Order XLI, Rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance unless the Appellate Court dispenses therewith". Since the filing of the judgment of the Court of first instance had not been dispensed with and the copy of the said judgment was filed on 17‑8‑1980, the appeal will be taken to have been filed on 17‑8‑1980. In that view of the matter, the appeal was held to be "clearly barred by time". It was, accordingly, dismissed in limine as time‑barred. Hence this appeal, by leave of this Court. In support of the appeal, the learned counsel for the appellants has relied on Noor Muhammad v. Ch.Ghulam Muhammad PLD 1978 Lah. 819 wherein it was observed that indulgence should be shown by Courts and parties should not be dealt with harshly if the copies of the judgments, which are necessary to be filed with the appeal, are not filed in time. This judgment is hardly of any avail to the appellants in the circumstances of this case. We observe that the appellants had, alongwith their appeal, filed an application dated 26‑2‑1980 to the, High Court to dispense with the copy of the trial Court's judgment (Civil Miscellaneous No.2617‑C of 1980), wherein it was claimed that efforts were being made to obtain the copy of the trial Court's judgment; which would be placed on the record as soon as it was made available. However, the fact is that the application for the supply of the trial Court's judgment was submitted for the first time only on 29‑5‑1980 after the application for dispensing with its copy was rejected (on 21‑5‑1980). The copy was supplied on the same day viz. 29‑5‑1980 but the appellants did not submit it in Court for almost three months and it was filed only on 17‑8‑1980. The appeal had, by then, become barred by time but no application for condonation of the delay was ever submitted. In these circumstances, we do not think that the order of the High Court refusing to dispense with the production of the judgment of the Court of the first instance and dismissing the appeal as barred by time can be objected to on the ground of impropriety or illegality. The upshot is that there is no force in this appeal, which is, accordingly, dismissed with costs. M.Y.H./J‑31/S Appeal dismissed.