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First Appeal No.5 of 1983, decided on 12th August, 1984.
---S.151--High Court exercising inherent powers under S.151, converted revision into appeal.
------S-96--Limitation Act (IX of 1908), Art.156--Appeal filed without copy of decree--Effect--Appeal filed alongwith copy of judgment alone, without supplying copy of decree within period of 3 months, Prescribed under Art.156 Limitation Act, 1908, held, was incompetent and time-barred.
1980 C L C 530 ref.
Maroof Ali Khan for Appellant.
Syed Sarwar Ali for Respondent.
Date of hearing: 12th August, 1984.
This is a miscellaneous appeal under section 96 of C.P.C. directed against the judgment, dated 8-8-1982 by Additional District Judge IV, Karachi, whereby plaint of the appellant was rejected under Order VII, Rule 11, C.P.C. The plaintiff had alleged that he was the holder of Registered Trade Mark "Matalock" which was being infringed by the present respondent by advertisement and by getting contracts for the same. The written statement was filed by the respondent and application under Order VII, Rule 11,. C.P.C. was also filed. Same was allowed on 8-8-1982.
2. The present appellant filed revision application on 22-10-1982 in the High Court and objection was taken by the office as to how the revision was competent. The same was not attended to and ultimately the Hon'ble Chief Justice on 16-11-1982, consigned the said revision application with record until further orders of the Court.
3. On 4-1-1983 the appellant applied under section 151, C.P.C. for conversion of the revision into appeal which was allowed on 30th of January, 1983.
4. The preliminary objection has been taken by Mr. Sarwar that the appeal is incompetent as no copy of decree has been filed with the appeal. He has relied upon 1980 C L C 530 where Azad Jammu and Kashmir Supreme Court has taken a view that appeal filed without a copy of decree and with copy of judgment alone cannot be deemed to have been properly presented and it has to be rejected if copy of the decree is not filed within the period of limitation. The period of limitation prescribed for appeal under section 96, C.P.C. is 3 months under Article 156 of the Limitation Act. It is admitted position in this case that no copy of decree has been filed along with this appeal at any stage and, therefore, the present appeal appears to be time-barred and incompetent.
5. Mr. Maroof Ali Khan submitted that no decree has been prepared in the original case and, therefore, the appeal cannot be dismissed. I do not agree with this submission. This appeal is incompetent and has to be dismissed as it is not accompanied by copy of the decree and more than 2 years have already passed since the date of judgment impugned in this appeal. Mr. Maroof Ali Khan submitted that the question should be left open till such time that he obtains a copy of the decree and then the question of limitation should be decided. I do not agree with this submission, and dismiss this appeal as incompetent and time-barred as it is not accompanied by the copy of the decree in spite of lapse of two years. Mr. Maroof Ali Khan says that he should not be barred from presenting the appeal after he obtains a copy of the decree. I cannot make any observation in that respect and the matter can be considered when such a situation arises. Consequently this appeal is dismissed as incompetent and time-barred.
H. B. T./M-81/K Appeal dismissed.
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