COOPERATIVE MODEL TOWN SOCIETY through Secretary vs Mst. ASGHARI

' MUNIR A. SHEIKH, J--- This petition is directed against the judgment, dated 2-10-2001 of the Lahore High Court, Lahore, through which appeal filed by the petitioner against the judgment, dated 7-12- 1998 of the First Appellate Court has been dismissed.

2. The suit filed by the respondents was decreed through judgment, dated 7-6-1997. The petitioner filed appeal against the said judgment on 5-7-1997 but did not append therewith certified copy of the decree-sheet.

' According to learned counsel for the respondents-caveator, photostat copy of the judgment was however, appended with the said memo. Of appeal. The appeal was admitted to hearing by the First Appellate Court and notice issued. On 30-3-1998, the petitioner filed two applications, one for permission to place on record certified copy of the judgment and decree of the trial Court in appeal and second under section 5 of Limitation Act, seeking condonation of delay. On 18-7-1998, however, third application was moved by the petitioner under sections 151 and 152 read with Order VI, rule 17, C.P.C. For permission to amend the memo. Of appeal to substitute the word "Order" in the title of the appeal and the prayer clause for the words "judgment and decree". All these three applications were dismissed through order, dated 17-12-1998 by the First Appellate Court and consequently, the appeal was also dismissed on the same date as barred by time. Second appeal filed by the petitioner has been dismissed through the impugned judgment, dated 2-10-2001 against which leave is sought.

3. Learned counsel for the petitioner submitted on the strength of judgments reported as Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 and Baseer Ahmad Siddiqui v. Shama Afroze 1985 CLC 1711 read with Chapter 14-B, Rule IV, Volume I of the High Court Rules and Orders that requirement of appending copies of judgment and decree-sheet with the memo. Of appeal as required by Order XLI, rule 1, C.P.C. Was directory and not mandatory. He further argued relying upon judgments reported as (Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178 and Haji Jahanzeb v. Khalid Khan and another PLD 1983 Pesh. 215 that once an appeal was admitted to hearing without certified copy of the judgment and decree, the same should be decided on merits. He argued that it was the duty of the First Appellate Court to have examined the memo. Of appeal when it was presented in order to satisfy that the same was in accordance with the requirements of law inclusive of question of limitation and once the same had been admitted, the petitioner should have been allowed to place on record the copy of judgment and decree and once the same was placed on record, the appeal shall be deemed to be duly constituted on the date when it was originally filed and not on the date when certified copy of the judgment and decree was placed on the record. Order XLI, rule 1, C.P.C. Which provides as to what should be the form of appeal reads as under:-- "1. Form of appeal. What to accompany memorandum.--- (1) Every appeal should 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 appended from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."

4. It is clearly provided that certified copy of decree is to be appended with memo. Of appeal and the copy of the judgment also unless the production of the later has been dispensed with.

5. Learned counsel for the petitioner submitted that the use of the word "shall" as regards production of certified copies of decree with memo. Of appeal are directory because the consequence of nonappendence of the same have not been provided.

6. The argument in our view has no merits. It has been held in the case of Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178 that the use of the affirmative word followed by limiting provision shall be deemed to be mandatory. It has been clearly provided in Order XLI, rule 1, C.P.C. As reproduced above that certified copy of the decree had to be appended with the memo. Of appeal which is followed by the limiting words regarding certified copy of the judgment on which the same was based therefore, the provision A regarding production of certified copy of the decree-sheet, shall be deemed to be mandatory. It has further been held in the case of Akbar Khan v. Muhammad Razzaq alias Abdur Razzaq PLD 1979 SC 830 that the appeal was not properly constituted if the same had been filed without certified copy of the decree-sheet.

7. Apart from what has been discussed above in this case, we are not inclined to exercise discretion under Article 185 of the Constitution in the matter of grant of leave in the peculiar circumstances of this case, for the petitioner is guilty of not only contumacy but also gross negligence. As has been pointed out by the learned Judge of the High Court in the impugned judgment, the application for obtaining certified copy of the judgment of the trial Court was made on 9-6-1997 within the period of limitation prescribed by law. It was prepared on 5-7-1997 and delivered to the petitioner on the same date. He kept quiet upto 30-3-1998 when he made application seeking permission to place on record certified copy of the said judgment and decree. It has been rightly held that the petitioner was not entitled to exercise of discretion in his favor and indulgence by the Court as valuable right had accrued to the respondents on the point of limitation on account of defective institution of appeal. The application filed by the petitioner under section 5 of the Limitation Act was, rightly dismissed by the First Appellate Court for the petitioner was required to explain each and every day's delay for condonation of delay which in this case has not been done, for there is no explanation as to why after obtaining certified copy of the judgment and decree on 5-7-1997 which was available to him, he did not append the same with the memo of appeal filed on the said date and even immediately thereafter within period of limitation.

8. For the foregoing reasons, the judgment impugned in this petition does not suffer from any illegality or legal infirmity, therefore, this petition has no merits which is accordingly, dismissed and leave refused.