Mir ABDUL REHMAN Versus KHURSHEED
M. TABASSUM AFTAB ALVI, J.--- The captioned appeal has been directed against the impugned judgment dated 4-1-2005, recorded by the learned Additional District Judge, Muzaffarabad, while exercising its original jurisdiction, whereby an application filed by the appellant, herein, for setting side judgment and decree dated 5-3-1997, passed in favour of predecessor in interest of respondents by the aforesaid Court, was dismissed.
2. The precise facts culminating into filing of the instant appeal are that predecessor in interest of respondents late Malik Hadayatullah, filed a suit for recovery of a sum of Rs.1,95,000 against appellant- defendant before Additional District Judge, Muzaffarabad, on 23-10-1995. It was stated by the plaintiff that he was a supplier of meat to the Military Authorities as being partner of one Anwar contractor. The appellant-defendant got loan of Rs.1,95,000 from plaintiff with promise that he would return the said amount by providing meat of sheep and goats to him. It was further averred that appellant-defendant had assured to the plaintiff that he had lot of goats and sheep which were dumped at village Dawalian in the residence of his close relative, however, when on his call he reached there, nothing was found which proved that he had committed fraud. The suit was, however, resisted by appellant-defendant through written statement dated 23-10-1995. It was stated that respondent-plaintiff was having no cause of action and suit was filed against facts/law which was also time barred. It was also stated that no amount was received by defendant from plaintiff. The learned trial Court on the basis of pleadings of the parties framed six issues on 28-12-1995. The plaintiff besides documentary evidence, in support of his claim, produced three witnesses. The appellant also produced evidence, however, later on absented, hence, was proceeded ex parte vide order dated 5-3-1997. The trial Court after hearing allowed the suit as prayed vide judgment and decree dated 5-3-1997. Against the aforesaid judgment and decree appellant-defendant filed an application for recalling the same on 5-11-1997, which application was opposed by the other side through objections dated 5-3-1998, however, after hearing the same was dismissed vide impugned judgment dated 4-1-2005, hence the instant appeal.
3. The appellant-defendant has filed written arguments. It is submitted by him that at the time of issuance of decree, the appellant-defendant was under treatment in an Hospital at Karachi, therefore, ex parte decree was passed against him. It is further stated that application was not time barred and a good cause was also shown, hence, the impugned judgment is bad in law. It is also submitted that judgment and decree dated 5-3-1997, were passed by the Court below without applying judicious mind. It is further maintained that in support of his application, appellant-defendant produced witnesses namely Rehmat-Ullah, Faqeer Muhammad, Haji Abdul Majid, Abdul Sittar, Mir Muhammad Fareed and Farooq Ahmed, however, evidence of the aforesaid witnesses was not considered by the trial Court without any lawful justification and prayed for acceptance of appeal.
4. I have perused the contents of appeal, written arguments filed by the appellant and also examined the record.
5. A glance perusal of record reveals that predecessor in interest of respondents late Malik Hadayatullah, filed a suit for recovery of Rs.1,95,000 against appellant-defendant before the trial Court on 23-10-1995. The suit was, however, resisted by appellant-defendant through written statement dated 23-10-1995. The issues on the basis of pleadings of the parties were framed on 28-12-1995. The plaintiff produced three witnesses in support of his claim, besides documentary evidence, in the shape of an agreement, executed between the parties, as "Exh. PA". The appellant-defendant in support of his defence also produced oral evidence, who was represented by a senior council Muhammad Noor Ullah Qureshi, however, later on he and his learned counsel failed to appear before the Court below, hence, after hearing the learned counsel for plaintiff the suit was allowed vide judgment and decree dated 5-3-1997. The case was contested by the appellant-defendant through written statement, who also produced evidence in support of his defence, which suit was decided by the Court below on merits. Against the aforesaid judgment and decree dated 5-3-1993, an application for recalling the same was, therefore, not maintainable. It was enjoined upon the appellant- defendant to challenge the aforesaid judgment and decree through a regular appeal before this Court. The same proposition came under consideration before the Peshawar High Court, in case titled Nasim Javed v. National Bank of Pakistan PLD 1985 Pesh. 91, wherein at page 56 of the report, it was held as under:--
"There is yet another aspect of the case. The suit of the respondent herein had been finally decided on merit by the learned trial Judge because he had proceeded under Order XVII Rule 3, C.P.C. In such a situation the appellant herein should have filed an appeal against the said decree and should not have moved an application to the trial Court for setting-aside the ex parte decree. The application of the appellant herein before the trial Court for setting-aside the decree by treating it is an ex parte decree was also misconceived."
An identical point also came under consideration before the Lahore High Court, in case titled Muhammad Khan v. Alam Din (1989 CLC 1810). At page 1812 of the report, it was opined as under:--
"It was next contended by the learned counsel for the petitioners that as this Court is seized of the matter it may exercise its revisional jurisdiction and set aside the ex parte decree. It is not denied by the learned counsel that the decree could be subjected to appeal, before the appellate Court. The petitioners, however, failed to avail of this remedy. There is as such no justification for interfering in the ex parte decree in these proceedings under section 115 of the C. P. C. "
6. There is yet another fatal defect in the instant appeal. The suit for recovery of money was filed by predecessor of respondents before the learned Additional District Judge, Muzaffarabad, in original jurisdiction which was decided on merits by the Court supra vide judgment and decree dated 5-3-1997. The appellant- defendant filed an application under Order IX, Rule 13 of Civil Procedure Code, for setting aside the aforesaid judgment and decree, which application was dismissed vide impugned judgment dated 4-1-2005. Against the aforesaid judgment passed in the original jurisdiction by the learned Additional District Judge, the instant first appeal has been filed. As per section 96 of Civil Procedure Code, an appeal could be filed against the decree and not against the judgment. The aforesaid section 96 of C.P.C. speaks as follows:--
"96. Appeal from original decree-(1) Save where otherwise expressly provided in the body of this Code or 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 authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties."
7. As per record the appellant moved an application for issuance of certified copy of judgment dated 4-1-2005, along with other documents, on 6-1-2005, however, neither solicited decree on the basis of judgment supra nor the same was drawn by the trial Court. An appeal can lie from every decree passed by any Court exercising original jurisdiction and not against the judgment, therefore, appeal is bad in law even from this angle. The same point was considered by the apex Court in case titled Azad Government and 5 others v. Syed Sajjad Ali Gillani and another 2001 CLC 1105 wherein at page 1108 of the report, it was opined as follows:--
"5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that for availing the appellate jurisdiction of the High Court in appeal it was mandatory for the appellants to attach with the memorandum of appeal the attested copies of the judgment and decree passed by the First Appellate Court and also provided with it the judgment of the trial Court, unless the same was either expressly or impliedly dispensed with. To have a correct perception of the proposition involved in the instant case it would be useful to reproduce the provisions of Order XLI, Rule 1 of the Code of Civil Procedure which reads as follows:-
"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."
The requirement of law, as we understand, is that the memorandum of appeal in the High Court must be accompanied by three documents viz, copies of the judgment and decree appealed from and copy of the judgment of the Court of first instance; however, a discretion is vested in the Court to dispense with the copy of the judgment of either the trial Court or the appellate Court, keeping in view the facts and circumstances of each case. So far as the copy of decree appealed from is concerned, it cannot be dispensed with for the simple reason that an appeal is basically preferred against a decree and not against a judgment, unless of course the judgment itself amounts to a decree."
As the instant appeal has been filed against the judgment, whereas appeal could be filed against the decree, therefore, the same is vis-a-vis to the basic provisions of Statutory Law.
8. For the reasons enlisted above, the instant appeal is not maintainable, which is accordingly dismissed with no order as to the costs and consigned to record.
AG/24/HC(AJ&K) Appeal dismissed.