Haji JEHANZEB vs KHALID KHAN AND ANOTHER

' This revision petition has arisen in the following circumstances :- ' Haji Jebanzeb plaintiff-petitioner brought a suit for possession by preemption with regard to the suit land fully described in the heading of the plaint situated in village Toota Khan Malakand Agency against Khalid Khan and Ismail respondents which was dismissed by Senior Civil Judge, Malakand on 13-1-1977. The petitioner impugned the judgment and decree by filing an appeal in the Court of District Judge, Malakand at Batkhela which was dismissed being incompetent and time-barred for that a copy of the decree sheet was filed after the prescribed period had expired.

Consequently Haji Jehanzeb, the plaintiff-petitioner had filed this revision petition challenging the judgments and decrees of both the forums below.

2. In order to resolve the legal question a short narration of facts appears to be essential. The suit of the plaintiff-petitioner was dismissed on 13-1-1977. On 18-1-1977 he applied for the copy of the judgment which was delivered to him the same day. On 2-2-1977 the plaintiff-petitioner filed an appeal in the Court of District Judge, Malakand and the office 'note of even date reads :- "Civil appeal alongwith stay application and order of Senior Civil Judge, Batkhela, powers of attorney affixed court-fee nineteen rupees only, presented by Bashirullah Advocate, checked and found correct. To be put to Court for order today."

' The appeal was heard the same day by the learned District Judge and his, order is as follows "Counsel for the appellant present Appeal admitted. Notice to respondents for 26-2-1977 for hearing at Batkhela. Process fee within three days. Record be sent for Execution proceedings shall stay in the meanwhile."

' The appeal in-between was adjourned for times when on 4-5.1977 the appellate Court ordered the appellant to place on record attested copy of the decree sheet subject to objection of counsel for the respondents. The ..... petitioner immediately applied for the certified copy of the decree sheet and after obtaining it placed on record of appeal the same day i,e, 4-5-1977. On 17-5-1977 the petitioner by filing an application under section 5 of the Limitation Act sought the condonation of delay in filing the copy of decree sheet. However, the learned District Judge by his impugned judgment and decree dated 3-6-1977 held that the appeal without copy of decree sheet was not proper presentation and for the purposes of prescribed limitation the crucial date was 4-5-1977 when the decree sheet was placed on record. As the appellant had applied for the copy of decree sheet much after the expiry of prescribed period it rendered the appeal as incompetent and time-barred and accordingly it was dismissed. The prominent feature of the matter which cannot be lost sight of is that the parties to the litigation belong to Malakand Agency where regular civil Courts were established on 1-11- 1976, earlier to it the Assistant Commissioners were exercising the power of Civil Judges. It has been so mentioned in the application seeking the condonation of delay in filing the copy of the decree sheet with the appeal, which position has not been controverted by the learned counsel for the respondents. Of course the appeal was filed by Bashirullab Khan an Advocate who it was repeatedly urged was-a junior-counsel of not much standing.

3. Reverting to the facts of the case one finds that the office of the District Judge had been negligent in handling the appeal as it was found to be in order when checked on 2-2-1977 and later the same day heard in limine and admitted to regular hearing by the appellate Court too. The learned counsel for the petitioner is not far wrong to contend that had the office pointed out that the appeal was not accompanied by the copy of the decre sheet and returned it to the appellant, the error would have been rectified as there was still time available for filing of the appeal till 13-2- 1977. The requirement of Order XLI, rule 1, C. P. C.. That certified copy of the decree is to be filed alongwith the memorandum of appeal is mandatory and in the absence of the decree the appeal would be incomplete, defective and incompetent, but then the most important step that is to be taken in ca of defective presentation of the appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant be directed to remedy the defects. After the appeal has passed through the stage of admission through oversight of the office then the fair and rational course to adopt was to adjourn the hearing of the appeal with the direction that the appellant should produce the certified copy of the decree as soon as it is obtained. If it was not so done the litigant deserved to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. As the office of the District Judge was enqually negligent in not pointing out that the appeal was defective being not accompanied by a decree sheet, with the result that it was admitte to regular hearing, the proper and equitable course for the District Judge was to have passed an order condoning the delay in filing the copy. Of the decree sheet and thereafter decided the appeal on merits.

4. For the foregoing discussion I accept the revision petition, set aside the judgment and decree dated 3-6-1977 of the District Judge, Malakand and remand the case to him who after hearing the parties shall decide the appeal on merits. There shall be no order as to costs.