1993CLC 1202 (PLP)

(b) Act of Court‑‑‑ ‑‑‑‑ Party cannot be penalized for the act or neglect of the Court or its officials. (c) Decree‑‑‑ ‑‑‑‑ Court would be under duty to prepare a proper and complete decree sheet in line with its judgment‑‑‑Court's failure to perform its duty would not justify punishment to party for the default of Court. Iftikhar‑ul‑Haq for Appellant. Nemo for Respondents. Date of hearing: 17th March, 1993. Appellant brought a civil suit for perpetual injunction in respect of a house situated at Sargodha Road, Gujrat against the respondent in the Civil Court at Gujrat. The suit was tried on merits and dismissed by the trial Court on 20‑11‑1970. On 9‑3‑1971, appellant preferred an appeal in the Court of District Judge, Gujrat. Memorandum of appeal was accompanied by certified copies of judgment and decree appealed from. Appeal was admitted to formal hearing on 13‑3‑1971. Thereafter, it was transferred to the file of Additional District fudge for its hearing and decision. Appeal was adjourned for hearing of arguments on numerous dates. Eventually, it was dismissed, on account of a technical defect on 17‑5‑1972 by Additional District Judge. It was found that the memorandum of appeal was accompanied by a certified copy of incomplete decree and, therefore, the appeal was incompetent. Additional District Judge suggested to the appellant that he can apply to the trial Court for preparing the decree‑sheet and then can come in appeal, if so advised, and can also move for condonation of the delay. Against his order, an appeal was filed in this Court. It was admitted, on 23‑10‑1972, and has come up for final hearing today. Despite sufficient intimation, none appeared for the respondents. Therefore, the appeal was heard ex parte. At the outset, I regret to observe that the lower appellate Curt made fetish of a technicality for avoidance of the decision of the appeal on merits. Appellant complained in appeal that no valid decree was passed in terms of Order XX, rule 6 of Civil Procedure Code. Instead of heeding to the objection and trying to cure it, strangely, the lower appellate Court hit the appellant, with the same weapon technicality and threw out her appeal without attending to its merits. Failure of the Court to draw up a formal decree containing its essentials as required by mandatory provisions in Section 33 of Civil Procedure Code read with Order XX, rule 6 ibid will not deprive a party of his right of appeal. It is open to the party to apply to the Court to prepare proper decree‑sheet. Even if the party fails to so apply, the appeal could not be dismissed as incompetent. Defect was not noticed at the limine stage. It was discovered much later at the time of hearing of arguments on merits. It is well‑settled that a party cannot be penalized for the act or neglect of the Court, or, its officials. None can deny that it was the duty of the Court to prepare a proper and complete decree‑sheet in lines with its judgment. If it fails to perform its duty, was it fair to punish the party for default of the Court. In the circumstances, lower appellate Court itself ought to have required the trial Court to prepare correct decree‑sheet and called upon the appellant to file its certified copy in Court for fulfilling and complying with the mandatory requirements of Rule 1, Order XLI of Civil Procedure Code. The poor appellant had no hand in the mistake of the trial Court and yet she was punished by the appellate Court. I would thus accept the appeal, set aside the impugned order of Additional District Judge, Gujrat and direct rehearing of the appeal and its decision afresh on merits by District Judge, Gujrat after rectification of the error in the manner indicated above. Since respondents had not turned up at the hearing. I shall not burden them with costs of the appeal in this Court. Records be returned to the Court of learned District Judge, Gujrat. Appellant shall appear in his Court on 10‑4‑1993. A.A./M‑904/L Case remanded