KHALID MEHMOOD Versus SABIR ALI

MUHAMMAD RAZA QURESHI, J.--- The supervisory jurisdiction of this Court has been invoked by the Petitioner under Section 115 of the Code of Civil Procedure, 1908 ( "C.P.C." ), by calling into question the legality and propriety of the Judgment and Decree dated 12.10.2020 passed by the learned Appellate Court. Through the said Judgment, the appeal preferred by the Petitioner against the dismissal of his Suit for specific performance of an agreement to sell vide order dated 23.10.2019 passed by the learned Trial Court on account of non-deposit of the balance sale consideration, was dismissed as being barred by limitation. The Petitioner contends that not only the impugned Judgment, but the entire proceedings before both the learned Courts below, suffer from legal infirmities warranting interference by this Court in the exercise of its revisional jurisdiction.

2. The respondent initially joined the proceedings but subsequently, for the reasons best known to him absented himself and consequently, was proceeded ex parte through order dated 04.07.2025 passed by this Court.

3. After hearing learned counsel for the Petitioner, it is observed from the record that Petition's spectrum of challenge before this Court is very limited and on account of mistakes of learned Courts below, the controversy remained pending till this stage. To comprehend the factual matrix, it is noteworthy that Petitioner namely, Khalid Mehmood was plaintiff in the Suit, inter alia , for specific performance of agreement to sell dated 04.04.2019 with respect to property, the details whereof and terms and conditions contained therein were duly enumerated in paragraph No.1 of the plaint.

4. Through order dated 30.05.2019, the learned Trial Court extended injunctive relief in favour of the Petitioner by directing the maintenance of status quo with respect to the Suit property. Subsequently, vide order dated 20.09.2019, the Petitioner was directed to deposit the balance sale consideration. However, the Petitioner failed to comply with the said direction until 15.10.2019, when the respondent/defendant appeared before the Court and made a statement expressing his willingness to execute the sale deed in favour of the Petitioner, subject to deposit of the balance sale consideration. The Petitioner, however, again failed to fulfill the Court's direction, and ultimately, through order dated 23.10.2019, the learned Trial Court dismissed the Suit due to his default and non-compliance with the orders of the Court.

5. The Petitioner instead of filing an appeal against order dated 23.10.2019 filed an application seeking restoration of his Suit without adverting to the legal position that such application was not maintainable. The learned Trial Court entertained the application for restoration and directed the Petitioner to deposit the balance sale consideration, which he deposited on 26.11.2019. Thereafter, the learned Trial Court through order dated 20.02.2020 dismissed the said application on the ground that order dated 23.10.2019 having been passed in terms of Order XVII Rule 3, C.P.C. was an appealable order, therefore, application was liable to be dismissed.

6. The Petitioner, thereagainst, devised two modes of challenges to question the proceedings before the Court of first instance. The order dated 20.02.2020 was challenged by filing a revision petition, whereas the order dated 23.10.2019 dismissing the Suit was questioned through an appeal before the learned Appellate Court.

7. The revision petition filed against the order dated 20.02.2020 was, by its very nature, misconceived and beyond the permissible scope of revisional jurisdiction. Unsurprisingly, the learned Revisional Court, through order dated 12.10.2020, dismissed the said petition.

8. The second mode of challenge, namely, the appeal filed against the dismissal of the Suit is directly linked to the present Petition. This appeal too was dismissed by the learned Appellate Court through the impugned Judgment and Decree of even date, i.e., 12.10.2020, on the ground that it was clearly barred by limitation. The Petitioner, however, contends that although the appeal was admittedly filed beyond the prescribed period, the learned Appellate Court failed to consider, let alone adjudicate upon, the grounds set forth in the Petitioner's application under section 5 of the Limitation Act, 1908, annexed therewith wherein he had sought condonation of delay on specific and substantial grounds. It is the Petitioner's firm stance that dismissal of the appeal solely on the ground of limitation was unwarranted, particularly when the said application raised plausible and substantial grounds for condonation of delay, which were not given due judicial consideration.

9. This Court while exercising supervisory jurisdiction has given thoughtful consideration to the legal position and the sequence or flow of proceedings in the present case. It appears that the Petitioner consistently pursued legally misconceived challenges against orders which were, in fact, the consequence of his own default and non-compliance. At the same time, the learned Appellate Court also failed to adequately address certain lapses attributable to errors committed by the learned Trial Court, thereby contributing to the procedural complexity of the matter.

10. Clearly, the application seeking restoration of the Suit filed by the Petitioner was not maintainable. The legally misconceived and procedurally incompetent challenge in this regard culminated into orders dated 20.02.2020 and 12.10.2020 passed by the Trial Court and Revisional Court respectively. It is noteworthy that these orders have been questioned by the Petitioner through connected Writ Petition bearing No.38695 of 2021. However, upon being confronted with the inherent incompetency in the underlying proceedings, the Petitioner opted to withdraw the said Writ Petition.

11. The pivotal question that now falls for determination by this Court is the precise nature and legal effect of the order dated 23.10.2019, whereby the learned Trial Court dismissed the Petitioner's Suit on account of his failure to comply with a specific direction regarding the deposit of the balance sale consideration. Although the order does not expressly cite any specific provision of law, yet its content and legal effect unmistakenly indicates that it was passed in terms of section 22 of the Specific Relief Act, 1877. Given the Petitioner's failure to establish his readiness and willingness to perform his part of the agreement to sell, an essential prerequisite for grant of specific performance, the learned Trial Court exercised discretion against him and dismissed the Suit. The Petitioner's non-compliance with the Court's direction to deposit the balance sale consideration, despite the grant of time, amounts to a delinquent default falling within the ambit of Order XVII Rule 3, C.P.C. The said provision equips and empowers the Court to proceed to decide the suit forthwith, notwithstanding such default, in cases where a party fails to perform an act necessary for further progress of the suit within the time allowed.

12. It is significant to observe that although the order dated 23.10.2019 constituted a formal adjudication whereby it conclusively determined the rights of the parties in relation to the matters in controversy yet no decree sheet was ever drawn by the learned Trial Court in terms of Order XX Rule 6, C.P.C. Equally notable is the fact that the Petitioner, despite being aggrieved, never moved any application seeking preparation of the decree sheet pursuant to the dismissal of his Suit. The impugned Judgment dated 12.10.2020, while examining the merits of the case through the lens of the Limitation Act, regrettably failed to consider that in the absence of a decree, there was no valid or competent appeal before the learned Appellate Court in light of the mandatory requirement under Order XLI Rule 1, C.P.C. This procedural lapse rendered the appellate proceedings inherently flawed, defective, lacking the jurisdictional foundation necessary for a lawful adjudication on merits.

13. Under the settled principles of procedural law, it is not merely the judgment or order that is assailable in appellate proceedings, rather it is the decree that embodies the formal expression of adjudication and is amenable to appellate challenge. In terms of Article 156 of the Limitation Act, 1908, the limitation period for preferring an appeal commences from the date of signing of the decree. The interval between the pronouncement of judgment and the signing of the decree is treated as time requisite for obtaining a certified copy of the judgment and decree. A plain reading of Order XLI Rule 1, C.P.C. reinforces this position, which mandates that every memorandum of appeal shall be accompanied by a copy of the decree appealed from and, unless dispensed with by the Appellate Court, of the judgment on which it is founded. It is therefore well-settled that the right of appeal crystallizes upon the signing of the decree, and any reckoning of limitation must be computed accordingly. Reliance in this regard is placed upon the judgments reported as "(1) the Government of West Pakistan, through the Chief Secretary, Lahore, (2) The Project Director, Guddu Barrage WAPDA, Sukkur, (3) The Superintending Engineer, Duddu Mechanical Circle, Sukkur now at Keshmore, (4) The Executive Engineer, Field Division, Keshmore and (5) The Sub-Divisional Officer, Transport Sub-Division, Keshmore v. Niaz Muhammad" (PLD 1967 Supreme Court 271), "Messrs Emirates Airlines v. Dr. Prof. Haroon Ahmed and 3 others" (PLD 2006 Karachi 126) and "Government of Sindh through Land Acquisition Officer and others v. Muhammad Juman and another" (2009 SCMR 1407) .

14. Under section 2(2) of the C.P.C., a decree has been defined as under:

"(2) "decree" means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within Section 144 and an order under Rules 60, 98, 99, 101 or 103 of Order XXI]. But shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

[Emphasis provided]

15. The provision clearly stipulates that a decree is not required to be prepared only in two exceptional circumstances: first , where an appeal lies against an order under Order XLIII of the Code of Civil Procedure, 1908; and second , where the suit is dismissed for default. It is, therefore, essential to emphasize that the dismissal of the Suit by the learned Trial Court in the instant case does not fall within either of these exceptions. The order was not passed due to the Petitioner's absence or default in appearance, rather, it was a judicial determination under section 22 of the Specific Relief Act, 1877, premised on the Petitioner's failure to demonstrate his readiness and willingness to perform his part of the agreement. Consequently, the Petitioner was held disentitled to the discretionary relief of specific performance, and the dismissal was a decision on merits, requiring the preparation of a formal decree.

16. In terms of rule 20 of Order XX of the C.P.C. as amended by the Lahore High Court, it is mandatory for the Court, at the time of pronouncement of judgment, to provide certified copies of the judgment and decree to the parties at their expense. Compliance with this procedural requirement is not merely directory but mandatory or obligatory, as it directly impacts the right of appeal. Under Order XLI Rule 1, C.P.C., every memorandum of appeal must be accompanied by a copy of the decree appealed from and, unless expressly dispensed with by the Appellate Court, a copy of the judgment upon which the decree is founded. Therefore, the non-annexing or absence of decree sheet renders the appeal procedurally defective and incompetent. Henceforth, the preparation and provision of decree is to be treated as a condition precedent to the exercise of the statutory right of appeal. This legal proposition finds authoritative support in a celebrated judgment of the Hon'ble Supreme Court of Pakistan titled as "(1) the Government of West Pakistan, through the Chief Secretary, Lahore, (2) The Project Director, Guddu Barrage WAPDA, Sukkur, (3) The Superintending Engineer, Duddu Mechanical Circle, Sukkur now at Keshmore, (4) The Executive Engineer, Field Division, Keshmore and (5) The Sub-Divisional Officer, Transport Sub-Division, Keshmore v. Niaz Muhammad" (PLD 1967 Supreme Court 271) , which on the proposition in hand reads as under:

"Article 156 of the Limitation Act prescribes with precision terminus a quo for an appeal of this kind. This is "the date of the decree or order appealed from" and the words are apt to bear the inference that a decree always follows upon a judgment in a suit and does not follow upon an order other than a judgment. By the effect of Order XX, rule 7, the decree is to bear the date of the judgment and it would appear that in a case where Order XX, rule 7, C.P.C., is applied, the time which elapses between the announcement of the judgment and the signing of the decree is included in the time requisite for obtaining a copy of the judgment and the decree. Reference to Order XLI, rule 1, will show that a memorandum of appeal is to 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 rule places primary importance upon there being attached to the memorandum a copy of the decree, and clearly mentions the judgment in terms of lesser essentiality. From this a conclusion may be reached, at least tentatively, that until the decree has been made out so that a copy thereof may be obtained, the requirements of Order XLI, rule 1, cannot be met. In other words, that the date of taking steps requisite for satisfying the requirements of Order XLI, rule 1, commences, from the point of view of limitation, from the time when the decree has come into existence. The view that application can be made by an interested party at any time after announcement of the judgment, and that if this is delayed until after the decree has been signed, the conclusion of negligence on the part of the person applying must follow, does not in our view, find full support from the wording of Order XLI, rule 1. There is difference between anxiety and due diligence. An anxious litigant may make an immediate application after the announcement of the judgment, but for satisfaction as to due diligence, it is the requirement of law, which must determine the matter. There being a sanction provided, viz., that of dismissal if the prescribed period of limitation is exceeded, care should be taken that no burden is placed upon the litigant which is heavier than that which the statute, fairly interpreted within its terms, imposes. Since Order XLI, rule 1, renders it possible for an appellate Court to dispense with the copy of the judgment, but not of the copy of the decree, for the due presentation of a memorandum of appeal, and since Article 156, in terms, prescribes the date of the decree, and not of the judgment, as terminus a quo , the duty of the litigant should be assessed in relation principally to procurement of a copy of the decree. Just as no application for copy of a judgment can be expected to be made until the judgment has at least been announced, so, no litigant satisfying the law in its terms can be required to make application for a copy of the decree before that decree has come into existence. The relevant law appears clearly to distinguish between the judgment and the decree which follows upon it, and speaking with respect, this distinction cannot be allowed to be obscured on assumptions, such as, that a decree "in a legal sense comes into existence as soon as a judgment is pronounced, or that "in its essence" a decree is not a thing "separable from the judgment."

[Emphasis provided]

17. Actually, the learned Trial Court had failed seriously to exercise the most important jurisdiction vested in it. The Trial Court, under the law, was bound to draw a decree-sheet and shall remain bound forever, regardless of what the parties have been doing on their part. It is not a default of a party rather it is actually a conduct of the Court of first instance as well as the learned Appellate Court, who should have referred a reference to the learned Trial Court directing it to prepare the decree sheet in the matter. Reliance in this regard is placed upon the judgment reported as "Zahid Zaman Khan and others v. Khan Afsar and others" (PLD 2016 SC 409) and "Khaista Khan v. Senior Member, Board of Revenue, N.W.F.P... Peshawar and 4 others" (2001 CLC 1847) .

18. It was equally mandatory for the learned Appellate Court to identify whether a decree sheet was annexed with appeal or not. The record of instant Civil Revision throughout reflects that the learned Trial Court had failed to prepare the decree sheet in the matter, therefore, the impugned Judgment holding that the appeal filed by the Petitioner is barred by time was not sustainable in the eyes of law. The scope of impugned Judgment reflects that it construed limitation from the date of order dated 23.10.2019 without adverting to the fact that under the scheme of the C.P.C. the decree sheet was mandatorily to be prepared and since decree sheet was not prepared by the learned Trial Court, the appeal could not have been declared to be barred by time.

19. In this view of the matter as well as legal position, it is declared that the impugned Judgment and Decree passed by the learned Appellate Court is nullity in the eyes of law. Therefore, while allowing the instant petition, the impugned Judgment and Decree is set aside and the Appeal shall be deemed to be pending before the Appellate Court who shall ensure presence of decree sheet whereafter fate of application filed under section 5 of the Limitation Act, 1908, annexed with the appeal shall be determined in the light of date of preparation of the decree sheet and if the learned Appellate Court condones the delay, which appears to be inevitable in the instant case, the matter shall be decided strictly in accordance with law.

MQ/K-19/L Revision allowed.