SHAUKAT ALI vs MUHAMMAD SHARIF

ORDER

' ABDUS SATTAR ASGHAR, J.--- Through this Civil Revision under section 115 of the Civil Procedure Code, 1908 the petitioner has impugned the legality and propriety of the judgment dated 21-5-2012 passed by learned Additional District Judge Chunian District Kasur granting the appeal lodged by Muhammad Sharif respondent against the judgment and preliminary decree dated 23-6-2011 passed by learned Civil Judge Chunian.

2. Succinctly the facts leading to this petition are that Shaukat Ali petitioner filed a suit fir possession through partition against Muhammad Sharif respondent. It was contested by the respondent through written statement. After framing of issues and recording of evidence of the parties the learned trial Court vide judgment dated 23-6-2011 passed preliminary decree in favour of the petitioner. Respondent being dissatisfied with the judgment and preliminary decree dated 23-6-2011 preferred an appeal before the learned Additional District Judge, Chunian which was allowed through the impugned judgment.

3. Record reveals that memorandum of appeal was not accompanied by copy of the preliminary decree. It was also noticed by the learned appellate court that decree-sheet was not prepared by the learned trial Court rendering it a lacuna on the part of the learned trial Court required to be rectified.

4. It is argued by the learned counsel for the petitioner that despite taking notice of the negligence of the learned trial Court and deficiency in preparation of the decree-sheet the Learned appellate court fell, in gross error by accepting the appeal; that the appeal lies against the decree and non- preparation of the decree-sheet renders the appeal incompetent; that the impugned order passed by the learned appellate court therefore is against law and facts causing miscarriage of justice and liable to set aside.

5. Despite accepting service respondent has not turned up therefore he is proceeded against ex parte.

6. Arguments heard. Record perused.

7. It is evident on the record that the learned trial Court miserably failed to draw up a formal decree-sheet in accordance with the judgment dated 23-6-2011. This deficiency was also noticed by the learned appellate court in the impugned judgment. Needless to say that it was incumbent upon the learned trial Court to prepare a proper and complete decree-sheet in line with its judgment. Requirement of Order XLI, Rule 1 of the Civil Procedure Code, 1908 to the effect that copy of the decree shall be accompanied with the, memorandum of appeal is a mandatory provision certainly rectifiable in the interest of justice following the golden principle of law that a party cannot be penalized for the act or neglect of the court. In such circumstances the learned appellate court itself ought to have required the learned trial Court to prepare correct decree sheet and call upon the appellant to file its certified copy in the court to comply with the requirements of Order XLI, Rule 1 of the Civil Procedure Code, 1908. It is astonishing that instead of doing the needful the learned appellate court granted the appeal through the impugned judgment. It is also on the record that the petitioner after filing this Civil Revision also lodged an application to the learned trial Court seeking preparation of the decree sheet but the same has been declined vide order dated 1-10-2012 on the ground that no such direction was ever passed by this Court.

8. In the attending circumstances since the appeal before the learned appellate court was incompetent due to non-preparation of the decree sheet therefore the learned appellate court fell in gross error while granting appeal through the impugned order which is untenable in law.

9. For the above reasons this Civil Revision is allowed, the impugned judgment dated 21-5-2012 passed by first appellate court is set aside and the case is remanded to the learned appellate court with the direction that the appeal shall be deemed as pending. Simultaneously learned trial Court is directed to prepare the decree-sheet in line with its judgment dated 23-6-2011 and furnish an attested copy of the same to the learned appellate court within a period of seven days from the date of receiving the copy of this order and thereafter the learned appellate court shall decide the appeal afresh after providing opportunity of hearing to the parties within a period of 60 days. Delay in furnishing the certified copy of the decree-sheet to the learned appellate court shall be deemed condoned in the interest of justice. Parties are left to bear their own costs.

10. Deputy Registrar (Judicial) of this Court is directed to transmit the copy of this order to the learned appellate court as well as to the learned trial Court concerned through the learned District Judge Kasur forthwith by fax.