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Petitioner: ALI ZAMAN VS Respondent: QASIM JAN AND 3 OTHERS
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Akram Khan Title: ALI ZAMAN vs QASIM JAN AND 3 OTHERS Case No.: Civil Appeal No, 22 of 1983 Date of Judgment:1984-05-04 Reported As: PLD 1984 Azad J & K 61 Result: Appeal dismissed
Judgment ORDER ' This second appeal is directed against the judgment and decree passed by the learned District Judge, Muzaffarabad on 15-5-1983 whereby the learned District Judge rejected the appeal preferred by All Zaman appellant against Mst. Qasim Jan and others. 2. This appeal arises out of the following facts :- Ali Zaman (appellant) instituted a civil suit for the restoration of Conjugal Rights against Mst. Qasim Jan daughter of Manga resident of Ghartham Tehsil Hattian, District Muzaffarabad on Leh of November, 1979 before the Sub-Judge, Hattian. In the suit he averred that he was married to Mat. Qasim Jan approximately five months before the institution of the suit and that he performed her marital obligations upto Eid-ul-Mubarik on 31-10-1979 when she left the house of the plaintiff- appellant and went to live with Mst. Bakbat Noor wife of Alam Din. Thereafter she never returned to the house of the appellant despite his repeated demands that she should come to live with him. The suit was dismissed after the trial of the case by the learned Sub-Judge vide his judgment paised on 20-1271980. ' The appellant Ali Zaman went in appeal before the District Judge, Muzaffarabad on 6-1.1981 who dismissed his appeal vide his judgment and decree dated- 45-5-1923-. 3. Now the appellant, feeling aggrieved by the judgment and decree passed by the learned District Judge, Muzaffaeabael, has come up in second appeal before the High Court and has assailed the judgments and decrees of both the lower Courts. 4. The appeal before the High Court was drafted on 6-7-1983 and presented before this Court od 13-8-1983 i,e, on the last day of the limitation fixed for such appeals. The report/note of the Deputy Registrar who received the appeal on 13-8-1983 reads as under :
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{{URDU TEXT}} ' From the perusal of the appeal file, it appears that the office of the High Court did not bother to submit any report regarding the non-filing of the decree-sheet and about the incompetency of the appeal. In fact, the copy of the decree appealed against was not filed with the memorandum of appeal although the copy of the judgment of the District Judge was appended with it. A learned Judge of this Court passed the following order on 17-8-1983. "Notices shall issue to the respondents and record shall be sent for. To come up for constitution of Bench as well as for further proceedings on 22-10-1e83." ' I have mentioned these facts simply to show that it was never brought to the notice of the High Court that the appellant failed to file a copy of the decree sheet alongwith the memorandum of appeal and as such this appeal was not validly presented. I shall advert to this aspect of the case in my judgment later oh. 5. Mr. Nazir Ahmed Qadri, the learned counsel for the respondent, has raised a preliminary objection that the appeal is incompetent because no certified (or even non-certified) copy of the decree passed by the District Judge on 15-5-1983 was attached with the memorandum of appeal. Lie referred to Order XLI, rule 1, C. P. C. And submitted that Order XLI, rule 1 makes it an inflexible rule that in case of appeals from decrees, the memorandum of appeal shall be accompanied by a copy of the decree and that the Court cannot dispense with it as the decree was prepared on 15- 5-1983 and the appellant slept over the matter and presented an incompetent appeal on the last day of the limitation fixed for second appeals. 6. The learned counsel for the appellant submitted that the High Court did not make him aware of the fact that the copy of the decree sheet was not attached with the memorandum of appeal and cited the case of 1411 Haider Shah v. Ghulam Hussain (1) and NLR 1980 SC J 519. The case of the learned counsel for the appellant is that his client should not be penalised for the omission of the report of the office and for non-production of the decree sheet appealed against. He submitted that A 1 R 1930 Rang. 235 helps him and that his client should not suffer for the fault of the Court in not discovering his mistake in time. He also argued that the High Court has impliedly dispensed with the production of the copy of the decree. 7. The other grounds taken by the learned counsel for the appellant are :- (i)That the appellant was not properly heard by the learned District Judge, Muzaffarabad and as such the judgment and decree stand vitiated by the mandatory provision of Order XLI, rule 16, C. P. C. Which reads :- "On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal." (ii) That the observations of the Courts below regarding the minority of the respondent Mst. Qasint Jan are incorrect as according to the evidence of Umar Din, P. W. The age of Mst. Qasim Jan comes to 18 years when she was married to him ; and (iii) That the evidence of Abdur Rehman P. W. Was also not considered by both the lower Courts. 8. I have heard the leaned counsel, perused the record and examined the files of the trial Court and of the District Judge carefully and has also gone through the evidence led by the parties in this case. 9. First of all, I would like to deal with the preliminary objection regarding the incompetency of the second appeal due to nod-riling of the copy of the decree sheet passed and prepared on 15.5-1963 and then propose to deal with other points raised by the learned counsel for the appellant. 10. Order XLI, rule 1, C. P. C. Makes it an inflexible rule that in case of appeal from a decree, the memorandum of appeal shall be accompanied A by a copy of the decree. The Court cannot dispense with it as the rule is imperative. Order XLI, rule 1, C. P. C. Reads :-
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"(1) Every appeal shall be preferred in the form 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. (2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argu- {{FOOT NOTE}} (1) 1984 CLC 3p {{FOOT NOTE}} ment or narrative ; and such grounds shall be numbered consecutively." Order XLI, rule 1, C. P. C. Mates it imperative to file a copy of decree. With the memorandum of appeal otherwise the appeal is incompetent. 11. The following authorities lend support to this view :- (1) AIR 1925 Lab. 438 (2) AIR 1927 Lab. 49. (3) AIR 1927 Lah. 912. (4) AIR 1936 Lab. 293. (5) AIR 1938 Nag. 233. (6) PLD 1958 Pesh. 213. (7) AIR 1961 SC 832. (8) PLD 1977 Lab. 937. (9) PLD 1979 Lab. 846. (10) 1980 CLC 530. (11) 1981 CLC 1479. ' In Noor Din v. Secretary of State (1), appeal from an award was dismissed because the memorandum of appeal was not accompanied with the copy of the award appealed against. The appeal was dismissed relying upon an earlier decision Mubarak All Shah v. The Secretary of State (2). ' In Hakam Beg and others v. Rahim Shah and others (3), it was observed at p. 914: "It is not necessary to refer to the authorities cited by the respondents Counsel that it is essential that a memorandum of appeal must be accompanied by a copy of the decree appealed against. Indeed the provisions of Order XLI, rule 1, are imperative on this point." ' In Girdhari La! v. Rattan Chand (4), Agha Haider, J. Held that there was no proper presentation of second appeal in as much as the plaintiff should ''have appealed against a decree dismissing his appeal under Order XLI, rule 1, C. P. C. To the lower Court and should have filed a decree of that appeal. ' In Chetan La! Purshottam Singh Dado v. Dau G. S. Gupta and others (5) it was held that the provisions of Order %LI, rule 1, C. P. C. Are mandatory and omission to attach copy of decree is fatal to appeal. Relying on AIR 1928 Nag. 131, AIR 1927 Lah. 49, AIR 1918 All. 394 and AIR 1923 Mad. 482, the second appeal was dismissed.
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' In Sanaullah and others v. Ghulam Qadir and others (6), a preliminary objection taken by the learned counsel for Mst. Sherin Taj Bibi that the appeal was incompetent was upheld. The learned Judge (Muhammad Shafi, J.) observed at p. 215 :- "Right of appeal is a creature of a statute. In all suits of civil nature tribal by the Courts under section 9 of the C. P. C., such right is created by section 96 of the same Code which runs as under :- ' Save where otherwise expressly provided in the body of this Code or {{FOOT NOTE}} (1) AIR 1927 Lab. 49 (2) AIR 1925 Lah 438 (3) AIR 1927 Lab. 912 (4) AIR 1936 Lah. 293 (5) AIR 1938 Nag. 233 (6) PLD 1958 Posh. 213 {{FOOT NOTE}} by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. ' I wish to lay special emphasis on the word 'decree' occurring in this section. It is only the decree against which an appeal lies notwith-standing any decision arrived at in the judgment unless of course the judgment has itself the force of a decree. ' The decree is defined in section 2, subsection (2) as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The forms of the decrees which are expected to be prepared in different suits are given in Appendix D of the C. P. C." ' The appeal was dismissed being incompetent. ' In Suleman Khan v. Abdur Rehman etc. (1), it was held that the appeal -filed by Abdur Rehrnan could not be treated as cross-objection in appeal filed by Suleman and since it was not accompanied by the copies of decree-sheet and the judgment of the lower Court, as required by Order XLI, rule 1, C. P. C. It was not a valid appeal. ' In Messrs Yasin Sons Ltd. Multan v. The WAP DA and others (2), it was held that the memorandum of appeal would be defective in absence of copy of judgment and decree. However, the production of the copy of the judgment might be dispensed within suitable cases only when an application for supply of copy Thereof is moved and when there is still time to move the application (within the prescribed period of limitation). In this case, both the documents i,e, the copy of the judgment and the copy of the decree appealed against were not appended with the memorandum of appeal. The learned Judge (Justice Zaki-ud-Din Pal) observed in para. 3 at p. 940 :- ' In the present case copy of the judgment as well as decree was never appended with the memorandum Of appeal. It was averred in the application filed alongwith the appeal that since the said copies had not been supplied by the copying agency, therefore, they would be filed as soon as they are made available, while as a matter of fact no such application for supply of the said copies had made on the date when the appeal as well as the application was filed. As mentioned above, application for supply of the said copies was made after 3i months of-filing of the appeal and it is obvious that by the time when the application was filed limitation period bad elapsed. According to law certified copy of the decree has to be appended alongwith memorandum of appeal. If an application is made for supply of such copy and the same is not made available within time as prescribed by law for filing appeal then appeal can be filed even thereafter on the supply of such copy and the period spent in obtaining the copy of the decree would be accounted for while computing the period of limitation. If application has been made for supply of copy of judgment and the same has not been made available at the time of presentation of appeal then
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the same can be filed even in its absence seeking dispensation of the same on the ground that the same has not been {{FOOT NOTE}} (1) P L p I"9 J K 31 (2) P L P 1977 Lail. 937 {{FOOT NOTE}} supplied so far by the copying agency. It does not, however, mean that memorandum of appeal can be filed in the absence of the judgment and decree having not been even applied for. Production of copy of judgment by the appellate Court can be dispensed with only in case application for supply of copy thereof has been made or there is yet time to make application therefor. This view gains strength from Nur Din v. Secretary of State AIR 1927 Lah. 49, Girdhari La! v. Rattan Chand AIR 1936 Lah. 293 ; Sh. Abdullah v. Behari Lal and others AIR 1926 Lab. 638 ; and Chetanlal Purshottam Singh Daoo v. Dau G. S. Gupta and others AIR 1938 Nag. 233. It has been found in all these cases referred to above that omission to attach copy of the decree is fatal to appeal and omission to attach copy of the judgment which Court has not dispensed with makes the appeal incompetent." ' In Mst. Khurshid Bibi and another v. Ahmad and 2 others (1), the same view prevailed. Paras. 6 and 14 are reproduced below :- "Elaborating his contentions regarding the first objection as to the competence of the appeal before the lower appellate Court, the learned counsel submitted that when the appeal before the learned Additional District Judge was filed, the objection was raised about the non-filing of the Copy of decree-sheet and despite undertaking given by the counsel for the respondent, the decree-sheet was not provided. He submitted that it is mandatory for a party to file copy of the impugned decree with the appeal. In the absence of such a copy, he submitted the appeal was incompetent, and the provisions of Order XLI, rule 1, C. P. C. In this behalf leave no manner of doubt. Reliance was placed by the learned counsel in support of this contention on Reasat All Khan v. Mahuz Ali Klizm and others AIR 1929 Lah. 771, Hakam Beg and others v. Rahim Shah and others AIR 1927 Lab. 912 and Sana Ullah and others v. Ghulam Qadir and others PLD 1958 Pesh. 213. (14) Having given anxious consideration to the controversy involved, I am inclined to agree with the contentions raised on behalf of the appellants. The non-filing of a certified copy of the decree- sheet alongwith the appeal filed before the lower appellate Court especially even after the objection had been raised by the office and the counsel for the respondents (appellants in the lower appellate Court) had undertaken to file the same manifestly established the contumacious neglect to comply with the mandatory provisions of Order XLI, rule 1, C. P. C. There is no lack of authority on the point that an appeal under section 96, C. P. C. Is only competent when accompanied by a certified copy of the impugned decree. Reference may be made in this regard to the authorities cited on behalf of the. Appellants. It may be pertinently pointed out here that the case cited by the learned counsel for the respondents is not applicable to the facts of this case inasmuch as the said case related to an appeal filed against an order rejecting the plaint, which order by the deeming clause section 2(2), C. P. C. Has been included in the definition of a decree. The principle laid therein was that filing of decree in appeal from order rejecting plaint is not a sine qua nan. The appeal before the lower appellate Court iu view of the above discussion was clearly incompetent." ' In Imam Gul v. Mst. Begum Ji (2), the Supreme Court of Azad Jammu and Kashmir held that an appeal filed without a copy of decree an with {{FOOT NOTE}} (1) PLD 1979 Lab. 846 I (2) 1980 CLC 530 {{FOOT NOTE}}
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copy of judgment alone cannot be deemed to have been validly presented and is liable to be rejected if copy of decree is not filed within period of limitation. This ruling applies on all fours and, therefore, I would like to reproduce para. 4 "(2) There is no cavil about the principle that under section 96 of the C. P. C. a party adversely affected by a decree has vested rightly of an appeal. In other words an appeal 'lies only from a decree and not from a finding in judgment, except when the judgment itself has the force of a decree". An application to an appellate Court for setting aside of reversing a decision of a subordinate Court is an appeal within the ordinary, connotation of a term. An irregular or incompetent ,appeal is nonetheless' an appeal for the purpose of limitation. However, an appeal to be regular and competent must conform to the provisions of Order XLI, rule 1, C. P. C. Which reads (1) Every appeal shall be preferred in the form 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. (2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative ; and such grounds shall be numbered consecutively. ' The High Court, under section 122, C. F. C., however, has power to annul, alter or add to the rule made in the Civil Procedure Code but to our knowledge no such alteration, addition or amendment has so far been made in Order XLI, rule 1 by the High Court of Azad Jammu and Kashmir. In this case, it is, therefore, necessary for the appellant to annex both the documents unless a copy of a judgment is dispensed with by the appellate Court. Consequently an appeal, that is filed with a copy of judgment alone and without a copy of the decree, cannot be deemed to have been validly presented and should be rejected if copy is not filed within the period of limitation prescribed for such appeal." ' In Mohammad Shall v. Mst. Jamila Bibi and others (1), it was held that under Order XLI, rule 1, C. P. C. As applicable in Azad Kashmir the memorandum of second appeal, before the High Court must be accompanied by three documents, namely, copies of the judgment and decree appealed from and unless the appellate Court dispenses with, copy of the judgment of the Court of first instance. ' In Muhammad Anwar etc. v. Mst. Soma (2), the memorandum for appeal was not accompanied by copy of decree appealed against. Hearing of such appeal was held to be without any legal sanction. The relevant observations are found in para. 4 at p. 1480 :- "There is lot of force in the argument of the learned counsel. Upon the language of Order XLI, rule 1, C. P. C. The learned lower appellate Court could not dispense with the filing of the copy of the decree. - As is borne out from the judgment, under revision, the learned Additional District Judge was also not unaware of this legal position. The reason advanced by him for entertaining the appeal, without {{FOOT NOTE}} (I) 1980 CLC 1130 1981 CLC 1479 {{FOOT NOTE}} copy of the decree, runs counter to the provision s of Order XLI, rule 1, C. P. C. He, thus, fell in error in holding th t the appeal was maintainable. Be that as it may, hearing of the ape I by the learned Additional District Judge without annexation of the opy of the decree, with the memorandum of appeal was without any legal sanction. He could have allowed time to the respondent to get the decree-sheet prepared and move the learned trial Court in the matter. Anyhow, since the memorandum of appeal was not accompanied by a copy of the decree, it cannot be deemed to have been properly instituted.
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' In this case the decree was not drawn up. Hearing of such appeal was held to be without any legal sanction. There may be exceptions to this general rule e.g. :- (1)Where a plaint has been rejected under Order VII, rule 11, and no decree-sheet is required ; (2)Where a suit is dismissed in default ; (3)There may be such more instances. ' The case will be different when a decree is obviously a nullity and can be ignored altogether as laid down in PLD 1964 SC 97 and 1984 CLC 309. 12. The omission to file a certified copy of the order of the lower Court with memorandum of appeal is npt fatal as held in PLD 1961 Lah. 366 and PLD 1965 Kar. 367 as it may be dispensed with by the appellate Court or the omission may be condoned by the Court. But the omission to file a certified copy of the decree appealed against is fatal to the appeal. 13. But this rule is subject to certain exceptions :- (1) There may be appeals against certain orders which do not necessitate the preparation of a decree e.g. The order of rejection of a plaint such a rejection is a decree under section 2(2) of C. P. C. But the appeal against such an order does not need a copy of a decree-sheet under circumstances. (ii) There may be an appeal against a decree which was not drawn up or prepared by the Court against whose judgment the appeal is preferred. In certain cases, the Lahore High Court held that such an appeal was also incompetent while in other cases it was held that a party should not suffer owing to the mistake or delay of the office in drawing up the decree and that the appellant should not be given an opportunity to produce a copy of it when obtained. The Supreme Court of India held in the case of Jagat Dlish v. Jawahar La! (1) (affirming AIR 1960 Pun. 247) that it is imperative that a copy of the decree should be filed with the appeal and that as the appellant is entitled to deduction of the time taken up in obtaining a copy of the decree where he has applied for it but has not been furnished with it because it was not drawn up, the appeal filed without it is not competent and that the order to be passed on such an appeal must depend on the facts of each case. If a copy of a decree is filed after the expiration of the period of limitation prescribed for the appeal, the appeal is time-barred and that is so because there is no valid appeal until a copy of the decree is filed. Paras. 9, 13, 14 and 15 of that judgment are reproduced below "(9) ......... Where a decree is not drawn up immediately or soon after a judgment is pronounced, two types of cases may arise. A litigant {{FOOT NOTE}} (1) AIR 1961 SC 832 {{FOOT NOTE}} feeling aggrieved by the decision may apply for the certified copy of the judgment and decree before the decree is drawn up, or he may apply for the said decree after it is drawn up. In the former case, where the litigant, has done all that he could- and has made a proper application for obtaining the necessary copies, the time requisite, for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. In other words, the time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree. (13) Then it was argued that the respondents should have moved the trial Court for the drawing up of a decree as soon as they found that no decree had been drawn up. It may be assumed that the respondents might have adopted this course ; but where the dual system does not exist it would be idle to contend that it is a part of the duty of a litigant to remind the Court or its office about its obligation to draw up a decree after the judgment is pronounced in any suit. It may be that
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decrees when drawn up are shown to the lawyers of the parties ; but essentially drawing up of the decree is the function of the Court and its office, and it would be unreasonable to penalise a party for the default of the office by suggesting that it was necessary that the party should have moved the Court for the drawing up of the decree. Therefore, we are not satisfied that the appellant is justified in attributing to the respondents any default for which the penalty of dismissing their appeal can be legitimately imposed on them. The result is that the appeal preferred by the respondents on December 23, 1959, is proper and it can now be dealt with in accordance with law. It is true that in the circumstances over which the respondents had no control the appeal it has already been admitted under Order XLI, rule 11 and as a result of the decision under appeal it may not have to go through that process again. Dulat, J. Who heard the appeal for admission was satisfied that it deserved to be admitted and we do not think it necessary to require that the present appeal should go through the formality of the procedure prescribed by Order XLI, rule 11, once again. This position is no doubt unusal, but in the circumstances of the case it is impossible to…
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