AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad vs SIKANDAR KHAN and another
This civil appeal was filed by the Azad Jammu and Kashmir Government against a High Court judgment affirming a decree of Rs. 1,96,847 passed in favor of a government contractor. The Supreme Court of Azad Jammu and Kashmir dismissed the appeal on multiple grounds. First, the Court held that the appeal was procedurally defective because it failed to include certified copies of the judgment and decree of the trial and lower appellate courts, violating the mandatory requirements of Order XII Rule 5 of the Supreme Court Rules. Second, the Court ruled that the appeal was not maintainable under clause (d) of Section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, as that provision does not permit appeals against judgments of affirmation, regardless of the monetary value of the dispute. Finally, the Court rejected the appellant's request to convert the appeal into a petition for leave to appeal, noting that such a petition would be time-barred. The appeal was consequently dismissed.
- Does the failure to attach certified copies of trial and lower appellate court judgments to a petition of appeal warrant dismissal under the Supreme Court Rules?
- Is an appeal maintainable under clause (d) of Section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act against a judgment of affirmation?
- Can a time-barred appeal be converted into a petition for leave to appeal if the limitation period for the latter has already expired?
- Section 42(11)(d), Azad Jammu and Kashmir Interim Constitution Act
- Order XII Rule 5, Supreme Court Rules
1. ' BASHARAT AHMAD SHAIKH, J.--This is a civil appeal under clause (d) of section 42 (11) of the Azad Jammu and Kashmir Interim Constitution Act which has been filed on the ground that the vaue of the subject-matter in dispute is more than Rs,50,000. The learned District Judge Muzaffarabad passed a decree to the tune of Rs,1,96,847 in favour of Sikandar Khan, respondent herein, who is a Government Contractor. Appeal filed by the Azad Government was dismissed on a technical ground with the result that the decree passed by the District Judge was affirmed.
2. ' Mr. Muhammad Farid khan, the learned counsel for respondent No,1 Sikandar Khan, has raised a preliminary objection that the appeal is liable to be dismissed on the short ground that the appeal filed in this Court was not accompanied by the judment and decree passed by the learned District Judge as is required by Order XII rule 5 of the Supreme Court Rules. He relies on two judgments of this Court Government of Pakistan and another v. Tariq Hussain Farooqi PLD 1984 SC (A J & K) 47 and Azad Government v. Sardar Ghulam Nabi (Civil Appeal No,1 of 1984).
3. ' The relevant part of rule 5 mentioned above is as follows:-- "5. The petition of appeal shall be accompanied by
(i) certified copies of the judgment and decree or order appealed against as well as those of trial and lower appellate Courts; (ii)
4. (iii)
5. ' This rule requires that certified copies not only of the judgment and decree appealed against but also of the trial and lower appellate Courts shall accompany the petition of appeal. This is a mandatory provision and its violation entails dismissal of the appeal. The objection raised by the learned counsel is fully supported by the two judgments referred to above.
6. ' Even otherwise the appeal is not maintainable in view of the clear provision of clause (d) of section 42 (11) of Azad Jammu and Kashmir Interim( Constitution Act under which the appeal has been filed. The relevant parts of subsection (11) are as follows:- "42. (11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir:-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or"
7. ' In the present case, as already noted, the decree passed by the learned District Judge was affirmed by the High Court. The law is clear that clause (d) reproduced above does not apply to judgments of affirmation even if the amount or value of the subject-matter is more than Rs,50,000.
8. The appeal is, therefore, liable to be dismissed on this ground also.
9. ' Confronted with this difficulty, the learned counsel for Azad Government, Raja Muhammad Hanif Khan, prayed that petition of appeal may be treated as a petition for leave to appeal and may be disposed of as such. We note that the period of filing a petition for leave to appeal is sixty days while the petition filed by the learned counsel has been filed beyond the period of limitation. Thus, even if the petition is treated as one for leave to appeal it would still entail dismissal.
10. ' The learned counsel for the respondent, Muhammad Farid Khan, also contended that the proper court-fee was not deposited in this Court and when the Registrar of the Court ordered the appellant to deposit the necessary fee he did not do so and sought adjournments for a number of times. He, therefore, contended that the appeal was liable to be dismissed on that ground. Since, we have decided to dismiss the appeal on the ground already mentioned, we need not decide this question as it has become academic in nature.