Mst. SAFIA BEGUM vs TAJ DIN And OTHER

This is a defendant's appeal under section 100 of the C.P.C. Against the judgment and decree of the Addl. District Judge, Lahore dated 22nd May, 1982 whereby the decree of the trial Court dated 12-4- 1978 was modified.

2. The dispute relates to house bearing No. 572/573 Doongar Mohallah, Saddar Bazar, Lahore Cantonment. On 9th March, 1966 Taj Din and Muhammad Yaqub respondents Nos.1 and 2 filed a suit for specific performance of an agreement to sell dated 3rd January, 1906 against Rehmat Ali respondent No.3. In the written statement filed by him Rahmat Ali stated that he had already sold the house in question to Mst. Sara Begum through a registered deed of sale in pursuance to an agreement dated 25-2-1r"). In view of this assertion the trial Court directed that Mst. Sara Begum the subsequent purchaser be impleaded as a defendant.

3. On the pleadings of the parties the trial Court framed 9 issues and recorded the evidence of the parties. On 4th November 1971 the suit filed by respondents 1 and 2 was decreed by the Civil Judge in their favour. On an appeal filed by the appellant the decree was set aside and the suit was remanded to the trial Court after framing two additional issues. The learned trial Court by means of its judgment dated. 12-4-1978 refused to grant specific performance of the agreement to sell but instead passed a decree for recovery of Rs.10,000 as damages in favour of respondents 1 and 2 against respondent No.3. Two appeals one by respondents 1 and 2 and the other by respondents No.3 was filed before the District Courts at Lahore. These appeals were heard by an Additional District Judge who on 22nd May, 1982 dismissed the appeal filed by respondent No.3 and while, accepting the appeal of respondents 1 and 2 granted a decree for specific performance of the agreement to sell in their favour against the appellant and respondent No.3. Dissatisfied, the appellant has filed this regular second appeal.

4. A preliminary objection has been raised by Mr. Muhammad Siddique Butt learned counsel for the respondents Nos. l and 2 as to the maintainability of the appeal. It is submitted that since the appellant had not filed the certified copy of the judgment of the trial Court alongwith appeal and even till today, the appeal was not properly constituted and is liable to be rejected under Order 42 rule 2 C.P.C. And it was added by the Lahore High Court on 9th March, 1.926. The learned counsel has relied upon the authorities of the Supreme Court in Akbar Khan v. Muhammad Razaaq alias Abdur Razzaq PLD 1979 SC 830, S. Muhammad Ali and others v. Muhammad Sharif and others 1983 SCMR 299 and a judgment of this Court in Siraj Din and another v. Muhammad Ishaq .1981 CLC 1740.

5. Confronted with this position Sardar Muhammad Akram the learned counsel for the appellant stated that he has already filed an application under section 151 C.' P C (C.M. No.4248-C/82) for dispensing with the certified copy but no order was passed on the said application. According to the learned counsel the appellant cannot be pcnalised by the act or omission of the Court.

6. The objection as to the maintainability of the appeal is well taken. It has been held in Akhtar Khan v. Muhammad Razzaq etc. PLD 1979 SC'830 that the filing of certified copy of the judgment of the Court of first instance is a mandatory requirement and if the copy is not filed alongwith the memorandum of second appeal in the High Court that appeal cannot be said to be properly constituted unless the requirement has been dispensed with. In the present case it is to be noticed that though the application for dispensing with the certified copies of the judgment and decree of the trial Court was filed, but the filing of these copies was never dispensed with by this Court. The learned counsel for the appellant stated that the application for obtaining certified copies has already been filed but the copies have not been supplied despite repeated efforts. A chit, has been shown to me by the learned counsel according to which the last time the appellant visited the copying agency was 27th July, 1982. Even on the own showing of the appellant, no effort at all was made to obtain the certified copies from the copying agency thereafter.

It is to be noticed that on 10th July, 1983 respondents Nos.1 and 2 fieled an application (C.M. 350- C/83) for vacation of the stay order and dismissal of that appeal inter alia on the ground that it was not properly constituted on account of failure of the appellant to file certified copy of the judgment of the lower appellate Court. Notice of this application was sent to the appellant on 20th December, 1983. The arguments of the learned counsel for both the parties were heard on this petition. It was observed that the question raised in the C.M. Petition did not require decision at that moment and may be reagitated at the time of final hearing of the appeal. This application and the order constituted sufficient notice to the appellant that her appeal was not properly constituted on account of non filing of the certified copies. A period of six years has elapsed since then but no effort was made either to obtain the certified copy or to file it before this Court. It is also to be noticed that no application for condonation of delay under section 5 of the Limitation Act has been submitted. In this view of the matter, I have no alternative but to hold that the appeal filed by the appellant is not competent in view of the provisions of Order 41 rule 2 of C.P.C.

For the foregoing reasons this appeal is dismissed leaving the parties to bear their own costs.