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Regular Second Appeal No.439 of 1971, decided on 24th April, 1985.

‑‑‑O.XLI, R.1‑‑Filing of appeal‑‑Omission to file copy of decree‑ Effect‑‑Omission of appellant to file decree‑sheet of trial Court with memorandum of appeal in Appellate Court, held, would be fatal, even if Court had not insisted to file same at time when appeal was admitted to regular hearing‑‑Negligence of official of Court, at time of receiving memorandum of appeal, would not jeopardise right of opposite party to ask for dismissal of appeal on ground of such omission.

Ali Haider Shan v. Ghulam Muhammad 1981 C L C 359; Nur Din v. Secretary of the State A I R 1927 Lah. 49 and Muhammad Anwar etc. v . Mst. Soma 1981 C L C 1479 ref.

Malik Amjad Pervaiz for Appellant.

Raja Afrasiab Khan for Respondent.

This Regular Second Appeal filed in 1971, was not accompanied by certified copies of the judgment as also the decree‑sheet of the trial Court. It was contended that perhaps the same may have been filed in the connected R.S.A. No.33 of 1971 but this impression seems to be wrong as even the memo. of appeal of that file was without such copies.

2. Relying upon Ali Haider Shan v. Ghulam Muhammad 1981 C L C (A J & K) 359, learned counsel for the appellant contended that since the appeal stood admitted to regular hearing, it was too late to throw it away on the ground of as omission to file such copies.

3. On the other hand, Raja Afrasiab for the respondent placing reliance upon Nur Din v. Secretary of the State A I R 1927 Lah. 49 and Muhammad Anwar etc. v. Mst. Soma 1981 C L C 1479, urged that the omission was fatal, as even the rule itself did not allow any discretion to the Court to dispense with a copy of the decree‑sheet. According to him, if at all, only the copy of the judgment could have been dispensed with and hence to stretch the rule even to cover the omission of the decree‑sheet was quite contrary to the said provisions of Order XLI, rule 1, C.P.C. He added that there was no reason why not to follow the rule adopted by this Court even though the afore cited decision of Ali Haider that may be a bit helpful to the appellant.

4. Omission to file the decree‑sheet was indeed fatal. No discretion is allowed on the premises that the Court should have insisted for it at the time when the appeal was admitted to regular hearing. The rule yields a right in favour of the opposite party to ask for the dismissal of the appeal on this ground that right may not be jeopardised only because the official concerned was not much vigilant at the time of receiving the memo. of appeal. In this case perhaps even an objection was also raised by the Court and ever since the matter is hanging fire. Till today, the certified copies have not been appended. What could be a worse case than this where even after fourteen years, the decree‑sheet has not been appended. Accordingly, the R.S.A. is dismissed. They shall, however, be no order as to costs.

H.B.T. Appeal dismissed.

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