Syed ZAFFAR-UL-HASSAN GILLANI Versus NABI SHAH INQELABI
KHAWAJA MUHAMMAD NASIM, J.--- The captioned appeal by leave of the Court has been directed against the judgment and decree of the High Court, dated 08.11.2022, passed in Civil Appeal No.112/2015.
2. The brief facts forming background of the captioned appeal are that Syed Nabi Shah Inqelabi, respondent No.1, herein, along with another, filed a suit for declaration-cum-perpetual injunction, against Azad Government and others, in the Court of Sub-Judge Muzaffarabad on 09.06.1993, alleging therein that caste of plaintiffs is Syed Pirzada but, in the revenue, record it has been erroneously entered as Qureshi. It was claimed that name of the father of plaintiff No.1 has not been incorporated in mutation No.204, dated 18.10.1986, mutation No.1, dated 01.08.1989 and mutation No.3, dated 18.01.1990, whereas, plaintiffs are in possession of land measuring 300 kanal at Bari Behak, Syedan Wali, Pari Saryan, Nakyal Behak and Sachian Behak, since their forefathers, hence, prayed for decree for declaration-cum-perpetual injunction. The defendants were summoned but they did not appear before the Court and were proceeded ex-parte. After necessary proceedings, the trial Court decreed the suit vide ex-parte judgment and decree dated 29.03.1995.
Syed Zaffar-ul-Hassan Gillani, appellant, herein, filed a suit for declaration-cum-perpetual injunction and cancellation of judgment and decree passed by the Sub-Judge Muzaffarabad, dated 29.03.1995, against Nabi Shah Inqilabi and others, in the Court of Senior Civil Judge Muzaffarabad on 13.04.2009, wherein, it was stated that the defendant/ respondents Nos.1 and 2, herein, had no concern with the Syed family/ caste and the defendants obtained ex-parte decree dated 29.03.1995 by misstating the facts, hence, the same is liable to be set at naught. This suit was resisted by the defendants by filing written statement, wherein they refuted the claim of the plaintiffs. After necessary proceedings, the trial Court decreed the suit filed by the appellant, herein, and while setting aside the ex-parte judgment and decree dated 29.03.1995, also dismissed the suit titled "Syed Nabi Shah Ingelabi and another v. Azad Govt. and others, vide judgment and decree dated 03.06.2013. Feeling dissatisfied from the said judgment and decree the respondents, herein, filed an appeal before the Additional District Judge Muzaffarabad, who after hearing the parties accepted the appeal and decreed the suit filed by the respondents, herein, whereas the suit filed by the appellant, herein, was dismissed, vide judgment and decree dated 18.05.2015. Ultimately, the appellant, herein, approached the High Court by filing an appeal. After necessary proceedings, the learned High Court, through the impugned judgment has dismissed the appeal, which is the subject matter of the captioned appeal by leave of the Court.
3. At the very outset, Mr. Tahir Aziz Khan, the learned Advocate, representing the respondents while raising the preliminary objection on the maintainability of the appeal submitted that two suits were filed before the trial Court, hence, it was enjoined upon the appellant to annex the lists of legal representatives of the plaintiffs and defendants of both the suits at the time of filing of PLA/appeal, whereas the appellant has annexed the verification regarding non-filing of the list of plaintiffs of only one suit, hence, the mandatory requirement of Order XIII, Rule 3(1-A) of the Azad Jammu and Kashmir Supreme Court Rules, 1978, has not been fulfilled and this appeal has been filed incompetently. When this position was confronted to the learned Advocate, representing the appellant, he admitted the factual position, however, prayed for decision of the case on merits while dispensing with the requirement of filing of the list of the legal heirs.
4. It is an admitted position that two suits were filed before the trial Court and while flling the PLA/appeal the appellant has annexed the verification regarding non-filing of the list of the plaintiffs in Suit No.340, titled Syed Zaffar-ul-Haq Gillani v. Nabi Shah Inqelabi and another, and failed to annex the list of legal representatives of the defendants in the aforesaid suit. Similarly, neither the list of legal representatives of the plaintiffs as well as defendants in Suit No.330, titled Nabi Shah Inqelabi and another v. Azad Government and others, nor the verification in this regard has been annexed with the memo of PLA/appeal. This Court in a number of cases has held that under Sub-rule (1-A) of Rule 3 of Order XIII, of the Azad Jammu and Kashmir Supreme Court Rules, 1978, filing of lists of the legal heirs of the plaintiffs and the defendants filed before the trial Court is mandatory to be annexed with the memo of PLA/appeal and failure to comply with it entails dismissal of the PLA/appeal on this sole ground. Reference may be made to a case reported as "Muhammad Aslam v. Fazal Hussain and others" [2023 SCR 738], wherein, it was observed as under:-
"A plain reading of the above reproduced rule makes it abundantly clear that the compliance of the same is mandatory and failure to comply with it entails dismissal of the PLA/appeal on this sole ground. Whether the list of legal representatives was filed before the trial Court or not can only be determined either from the objection raised by the other party or from the certification issued by the trial Court. As according to the provision of the Supreme Court Rules, (Supra), filing of list of legal representatives along with the PLA/appeal is mandatory, therefore, it was enjoined upon the petitioner to annex the same with this PLA and if the same is not filed before the trial Court, then the certification of the trial Court should necessarily be brought on the record which has not been done. Even after filing the PLA, the petitioner has not submitted any application for brining on record the list of legal representatives within the prescribed period of limitation....."
In view of the above, it was enjoined upon the appellant, herein, to annex the lists of legal representatives of the plaintiffs and the defendants of both the suits and if the same were not filed in the trial Court, then the certification of the trial Court in this regard should necessarily be brought on the record, which has also not been done. As the instant appeal has been filed in violation of the statutory provision, hence, the same being filed incompetently, is liable to be dismissed on the sole ground.
5. So far as the contention of the learned counsel for the appellant that the requirement of annexing the lists of legal heirs, with the PLA/ appeal may be dispensed with by invoking inherent powers and the case be decided on merits, is concerned, it is revealed from the record that the appellant has annexed the certification regarding non-filing of the list of legal heirs of the plaintiffs of one suit, meaning thereby he was fully aware of the requirement of the statutory provision, but failed to file the list of legal representatives of the plaintiffs and defendants of both the suits as mandated under the rules. Consequently, in view of the appellant's negligence in complying with this statutory requirement, the inherent powers of the Court cannot be invoked to dispense with such compliance.
6. In view of the above, as we have reached the conclusion that this appeal has been filed incompetently, therefore, there is no need to dilate upon the merits and demerits of the case as the same would be a futile exercise.
Consequently, his appeal, being filed incompetently, is hereby dismissed. No order as to costs.
MQ/37/SC(AJ&K) Appeal dismissed.