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1981 Regular Second Appeal No. 305 of 1979, decided on 23rd November,

---S. 33 & O. XX, r. 7‑Drawing up decree‑sheet after judgment- Imperative for trial Court‑Omission or neglect on part of Court in performance of its statutory duty, held, cannot be taken as a ground for penalising appellant who cannot be deprived of his right of appeal on account .of such omission or neglect.‑[Decree‑Appeal (civil)].

Sher Muhammad v. Muhammad Khan and another A I R 1924 Lah. 352 ; Jaggat Dhish Bhargava v. Jawahar Lal Bhargava and others A I R 1961 S C 832 and Manohar Lal v. Manak Chand A I R 1919 Lah. 53 rel.

---S. 33 & O. XX, rr. 6 & 7 and S. 100 read with Limitation Act . (IX of 1908)‑Trial Court omitting to draw up decree but appellant applying well in time for copy of judgment and decree and filing appeal culminating into impugned order within one month of preparation of decree‑Appellant, held, cannot be deprived of his right of appeal on ground of limitation by holding period of limitation to commence from date when impugned judgment passed but no decree drawn up, [Decree‑Appeal (civil)].

Syed Zamir Hussain for Appellant.

Muhammad Rashid Ahmad for Respondents Nos. 1 and 2.

Muhammad Siddiq Butt for Respondent No. 3.

Date of hearing: 23rd November, 1981.

The appellant filed a suit before Civil Judge 1st Class, Lahore, against the respondents, seeking declaration to the effect that the order of cancella tion of leas‑. in respect of Plot No. 45/215 B. I. Bazar, Lahore Canton ment, from the name of the Appellant's mother, was illegal, ineffective, inope rative and without jurisdiction and that he was still lessee of the said plot. As a consequential relief, the appellant prayed the cancellation of the subse quent lease in respect of the aforesaid plot granted by respondents Nos. 1 and 2 in favour of respondent No. 3.

2. The appellant contended in the plaint that his mother Mzhr Bibi who had since died leaving the appellant as the sole heir, was granted the lease in respect of the suit plot and she paid the requisite charges. Subse quently, according to appellant's contention, respondent No. 3 started removing earth from the plot and the appellant's mother approached respon dents Nos. 1 and 2 to know the correct position and at that occasion she was intimated that her request for lease had in fact been rejected by defendant No. 1. The appellant, therefore, after the demise of his mother, filed the suit giving rise to the present Regular Second Appeal.

3. The appellant's suit was of course resisted by the respondent through separate written statements. The respondents inter alia raised legal objections with regard to want of statutory notice under section 273 of the Cantonment Act, non joinder of necessary parties and incompetency of the suit.

4. In the light of the legal objections raised by the respondents, the learned trial Court framed the following issues :‑

(1) Whether this suit is not maintainable for, want of statutory notice

(2) Whether the suit is bad for non joinder of necessary parties (3) Whether the suit is not competent

5. After recording the evidence produced by the parties in respect of the preliminary issues, the learned Civil Judge found all the preliminary issues in favour of the Defendants and consequently by his judgment dated 30‑3‑1976 dismissed the appellant's suit.

6. The appellant preferred appeal before the lower Appellate Court on 24‑4‑1976. At the time of hearing of appeal it transpired that the appeal was directed against the order dated 30‑3‑1976 passed by Mehr Ahmad Raza, the then Civil Judge, 1st Class; Lahore, while in fact he had dismissed the appellant's suit and the appeal should have been against the decree. It further transpired that certified copy of the decree had not been filed alongwith the memorandum of appeal and in fact the decree sheet had not been prepared. The appeal was consequently dismissed on 19‑0‑1978 for being premature. It appears that subsequently on 15‑6‑1978 the trial Court prepared the decree sheet: .On 19‑6‑1978 the appellant applied for obtaining copy of the decree‑ sheet. The copy was prepared on 8‑7‑1978.

7. On 15‑7‑1978, the appellant again filed an appeal enclosing copy of the impugned judgment as well as decree sheet with the memorandum of appeal. This appeal was dismissed by the learned Additional District Judge, Lahore, on 12‑3‑1979‑as being time‑barred.

8. The present Regular Second Appeal is directed against the judgment dated 12‑3‑1979 of the learned Additional District Judge.

9. 1 have heard the learned counsel for the parties and the contents of the relevant records have also been gone into and considered.

10. As observed earlier, the learned trial Court had failed to draw up the decree sheet although it was imperative for that Court to do so. The omis sion or neglect on the part of the Court in the performance of its statutory duties cannot be taken a ground for penalizing the Appellant, who cannot be deprived of his right of appeal on account of omission or neglect on the A part of the Court. The learned trial Court drew up the decree sheet on' 15‑6‑1978 while the appellant filed the subsequent appeal resulting in the impugned judgment on 15‑7‑1978. Alongwith the memorandum of appeal, the Appellant submitted an application under section 5 of the Limitation Act, seeking condonation of delay on the ground that the decree was not prepared by the trial Court and that the same was prepared pursuant to his application and, therefore, the delay, if any, might be condoned. In Sher Muhammad v. Muhammad Khan and another (A I R 1924 Lah. 352),.it has been held that when the plaintiff's suit was dismissed by the trial Court but no decree sheet was prepared, the proper course for the District Judge to be adopted was to grant an adjourn ment to enable the plaintiff to get a decree‑prepared and then to dispose of the appeal. In Jaggat Dhish Bhargava v. Jawahar Lal Bhargava and others (A I R 1961 S C 832), it was observed as under

"Where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and the decree before the decree drawn up as he has done all that he could do and has mad.‑ a proper application for obtaining copies, the time requisite for obtaining copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for drawing up of the decree itself. The time taken by the office or the Court in drawing up a decree after a litigant has applied for a certified copy of judgment being. pronounced, would be treated as a part of the time taken for obtaining certified copy of the said decree."

It was also observed in this case that the litigant deserves to be pro tected against the default committed or negligence shown by the Court or a its Officers in the discharge of their duties.

11. In Manohar Lai v. Manak Chand(A I R 1919 Lah. 53), it was found that although under section 33, it was imperative that a decree should follow the judgment and it was the duty of the Court to have drawn up, yet an omission or neglect by the Court in the performance of the duties in this respect could not deprive appellant of his right of appeal.

12. In the circumstances of the under consideration appeal as well, it was an omission on the part of the trial Court that it did not draw up the decree and the appellant applied well in time for copy of the judgment and decree. He also filed the appeal culminating into the impugned order within one month of the preparation of the decree by the trial Civil Judge. The appellant, in the circumstances, cannot be deprived of right of appeal on the ground of limitation by calculating the period of limitation to commence from the date when the impugned judgment was passed but no decree was drawn up.

13. In the light of what has gone above, I accept the appeal, set aside the impugned judgment and decree dated 12‑3‑1979 of the learned Additional District Judge, Lahore, and remand the appeal to the learned lower Appellate Court for deciding it on merits in accordance with law. The parties, in the circumstances of the case, are left to bear their own costs:,

M. Y. H. Appeal accepted.