1987 PLP 2331 (CLC)

Ch. Abdus Sattar for Respondents. Date of hearing: 29th March, 1987. The revisional jurisdiction of this Court has been invoked to set aside the judgment and decree dated 28‑5‑1985 pronounced by the learned District Judge, Rahimyar Khan.

2. The brief facts of this case are that Mst. Haleema and others moved an application before the Tehsildar/ Assistant Collector for the partition of agricultural land and having their separate share measuring 133 Kanals 10 Marlas. During the partition proceedings, the question of title arose and the learned Assistant Collector Ist‑Grade, Rahimyar Khan advised the parties to approach the Civil Court for settling the question of title, but the parties did not act on his advice and he himself chose to decide the question of title on 5‑1‑1985.

3. An appeal was filed against the said order in Court of the learned District Judge, Rahimyar Khan, who dismissed the appeal as the copy of the decree‑sheet was not appended with the appeal.

4. It has been contended that the learned District Judge should have granted time to the petitioner for filing the copy of the decree and since it was not done, the case may be remanded to the learned District Judge for a fresh trial. Baseer Ahmad Siddiqui v. Shama Afroza (1985 C.L.C. 1711) and Sher Muhammad v. Muhammad Khan and another (A I R 1924 Lah. 352) have been referred to which lay down the principle that an adjournment can be granted to the appellant to enable him to get the copy of the decree prepared.

5. Conversly, Muhammad Anwar etc. v. Mst. Soma (1981 C.L.C Lah. 1479), Abdul Sattar and 2 others v. Khuda‑e‑Dad (PLD 1986 Quetta 11), Ali Aman v. Qasim Jan and 3 others (PLD 1984 Azad J & K 61) and Mst. Khurshid Bibi and another Vs. Ahmad and two others (PLD 1979 Lah. 846) have been cited which show that an appeal is incompetent when a decree is not filed along wIth it.

6. Order XLI rule 1 C.P.C. may be reproduced for facility of reference: "Form of appeal. What to aclE ?pnL memorandum.‑ (1) Every appeal shall be preferred in the orm of a 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 decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."

7. It may be seen that 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 along with the appeal. Undoubtedly when the learned lower 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 28‑5‑1985 when the appeal was decided. The petitioners did not bother to apply to the learned trial Court for preparation of the decree nor did they care to asking the learned 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, They do 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. The copy of the decree filed with this revision petition shows that it was prepared on 5‑1‑1986. All the official acts are presumed to be done in a right manner unless proved otherwise.

8. In para 1 of the Memorandum of appeal, it has been stated that the copy of the decree has not been prepared by the learned trial Court and its production may be dispensed with. The prayer is to dispense with the copy of the decree which runs counter to the provisions of order XLI rule 1 C.P.C. In this manner the learnedl appellate Court has rightly dismissed the appeal of the petitioners and has not committed any illegality or material irregularity in the exercise of its jurisdiction. The revision petition fails and is dismissedi with costs. M. B.A. /A‑164/L Petition dismissed.