IMTIAZ ALI vs ATTA MUHAMMAD and another

' SHEIKH HAKIM ALI, J.---Against the sale of agricultural lands, measuring 120 kanals, situated in Chak No,319/TDA, Tehsil Layyah, transacted between Imam Din, vendor and Atta Muhammad and another, vendees, through registered sale-deed dated 5-3-1981, a preemption suit under the old law of Pre-emption Act, 1913, was filed before the learned Civil Judge, Layyah on 3-3-1982. The sale price entered into the aforementioned sale-deed, was shown to be of Rs,90,000 while the suit for pre-emption for the purpose of court fees and jurisdiction was valued at Rs,58,855.50. The suit was decided against the vendees, the present respondents, from the learned Civil Judge, as the decree was passed by the learned trial Court in favour of Imtiaz Ali, present appellant/plaintiff, on 19-1- 1986, which was assailed through appeal before the learned District Judge, Layyah, by the vendees respondents but without success, as the appeal was dismissed on 11-7-1987 by the aforesaid learned District Judge. Aggrieved from the aforementioned judgment and decree passed in appeal, respondent filed R.S.A. No,164 of 1987, before the learned Lahore High Court, Multan Bench, Multan, from where they succeeded to get the judgment and decree of the learned District Judge reversed, with consequence of dismissal of the pre-emption suit on 17-8-2001. Imtiaz Ali, the present appellant has filed the instant appeal on 22-9-2001. According to the office note, the appeal is barred by the delay of 1 day. C.M.A.No,4352 of 2001 has been filed by the appellant to get the condonation of delay on the ground that the decree sheet was prepared and signed on 23-8- 2001. Therefore, the delay in filing of the appeal may be condoned.

2. Learned counsel for the appellant has reiterated his noted stance of the application through his arguments that as the decree sheet in the R.S.A. No,164 of 1987 was prepared on 23-8-2001, by the office of Lahore High Court, Multan Bench, therefore, the appellant could claim the condonation of delay due to the late preparation of the decree sheet. According to learned Court, to obtain copy of decree, application was filed on 14-9-2001, which was supplied on 17-9-2001. The appellant was entitled to deduct this period of 4 days also, in the computation of period of limitation.

3. According to record, decree sheet. Was admittedly prepared on 23-8-2001 but the appellant had filed application for obtaining copy of it on 14-9-2001, why this period up-till the filing of the application to obtain the copy of the decree was allowed to run, no explanation was advanced.

Moreover, the appellant has not made any disclosure with regard to his knowledge of decree sheet, having not been prepared, by the office on the date of delivery of judgment. When and how the appellant came across with the knowledge of preparation of the decree, nothing has been brought on the record. With the announcement of judgment, it was incumbent upon the appellant to file an application for obtaining copy of the judgment and decree simultaneously. Why bifurcation in filing of an application to obtain copy of judgment and for the decree sheet later on, was made by the appellant and on what grounds, nothing was laid before us.

4. We have also considered and examined this proposition on the anvil of legal touchstone, but we are not satisfied with the plea raised and arguments submitted by the learned counsel. According to Order XII, Rule 2 of the Supreme Court Rules, 1980, it is compulsory for an appellant to file an appeal within 30 days from the date of impugned judgment, decree or order of the High Court. The aforementioned Rule 2 of Order XII is reproduced as below for ready reference:-- ' The petition of appeal shall be presented within thirty days from the date of the grant of the certificate by the High Court or the date of impugned judgment, decree or final order of the High Court: Provided that the Court may for sufficient cause extend the time." Underlining has been provided by us.

While examining the above noted rule, it transpires unambiguously that the appeal before this Court had to be filed against the impugned judgment, decree or final order of the High Court within 30 days. The appellant had not been allowed by the above rule to wait for the preparation of decree sheet in the High Court because the words used in the rule are "----------- or the date of impugned judgment---------- which clearly display that the petition of appeal can be filed against the impugned judgment also. It is not necessary for an appellant to bide for the preparation of decree sheet for filing of an appeal. If a judgment has been delivered, that can easily be challenged through filing of appeal in this Court according to the above indicated rule. As the law has not bound down the appellant to file appeal against a decree only. The period spent waiting for the preparation of decree, therefore, cannot be exempted. A distinction has to be kept in view with regard to a case, wherein an appeal cannot be filed without decree and has mandatorily to be filed against a decree, and those cases in which appeal can be filed even against the judgment/order only. In the former case, period consumed in the preparation of decree would be allowed while in the latter case, the period of limitation would commence with the birth and announcement of the judgment/order to be appealed against.

5. It is interesting to note that in Order XLV, Rule 1 of the C.P.C., for the definition of "decree" it has included in its compass, a judgment or final order also. For immediate perusal, Order XLV, rule 1 of the C.P.C. Is noted as below:-- "In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a judgment or a final order"

6. In other words, a copy of the impugned judgment, if has been appended with the appeal, while filing of appeal in this Court, it would be competent as the impugned judgment has been treated a decree by fiction of law due to provision of Order XLV, Rule 1 of the C.P.C. Therefore, the argument of the learned counsel that waiting period of appellant for the preparation of decree may be excluded, cannot be accepted, as this has not been found to be based upon any sound legal reason and justification. This view which we have adopted has got supportive base of a judgment of this Court also, reported in 1971 SCM R 54 (Nakuleswa r Sikdar v. Barun Chandra Chakravorty and another. It may be clarified here that filing of appeal within limitation of 30 days mandatory from the delivery of judgment, while insufficiency of documents filed with an appeal due to some reasons, have got a different concept and effect. Due to the non-availability of required but not mandatory document, one can obtain a period from the office/court, after filing of an appeal within the prescribed period of limitation because from the date of announcement of the judgment, limitation period having commenced, no interruption could stop the limitation running.

The period spent for obtaining copy of impugned judgment could be exempted from 25-8-2001 to 29-8-2001 spent for obtaining copy of judgment, which we have found, office has correctly excluded a period of 5 days and computed it in the period of limitation for the filing of the instant appeal. But the appellant cannot be allowed any more period of 4 days spent for obtaining copy of decree, as it would have overlapping effect and a grant of period doubly.

7. Winding up the above noted discussion, the appeal having been filed after one day of period of limitation, has created valuable right in favour of respondents. We having found no sufficient cause for filing of delayed appeal, are not prepared to condone it. Hence, the appeal is dismissed in limine.