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Second Appeal No.262 of 1978, heard on 12th August, 1987.

---Ss.100 & 151 read with O.XLI, Rr.1, 27 & 33--Limitation Act (IX of 1908), S.5--Motor Vehicles Act (IV of 1939), S.96--Rash and negligent driving--Liability for--Second appeal--Form of appeal--Second appeal against judgments and decrees passed by District Judge in two separate appeals Memo of appeal accompanying certified copy of decree in only one appeal and its reading also showing that the appeal was directed only against one judgment and decree--Respondent (Insurance Company) raising objection to maintainability of appeal against it on ground that no appeal against judgment and decree in his appeal having been filed, the judgment in that appeal had attained finality--Appellant, in reply, contending that as both civil appeals arose from a common judgment and decree in suit and both having been disposed of by one and the same judgment, omission on part of appellant to file a certified copy of decree in that appeal was of no consequence and alternatively appellant having subsequently filed a certified copy of decree in said appeal objection raised was one of technical nature and could not affect maintainability of appeal- Contentions of appellant, held, were without any substance, firstly because Court possessed no power to dispense with the copy of decree which had to be filed along with memo of appeal and secondly, delay of 27 days in applying for certified copy of decree was not explained--Insurance Company, not only contesting suit but having filed an appeal against judgment and decree of Trial Court and having succeeded in getting reversed the same, it was necessary for Appellant to have filed an appeal against Insurance Company if they wanted to enforce liability against them--Preliminary objection raised by Insurance Company that there was no proper appeal and as such the said judgment and decree had attained finality, upheld.

Man Matha Nathpuri v. Mohomed Mukhlisur Rehman P L D 1969 S C 565 held not applicable.

---S.96--Tort--Rash and negligent driving--Suit of appellant-plaintiff claiming compensation against owner and driver of car and Insurance Company on account of Doctor's fees, reduced efficiency and his permanent disability and mental agony suffered by him as a result of accident decreed by Trial Court but on appeals of respondents, judgment and decree of Trial Court reversed by First Appellate Court--None of witnesses examined by appellant in support of his case stating that car which caused the accident was being driven in a rash and negligent manner at the time of accident or that car was driven at high speed or that it was on the wrong side--Conclusion arrived at by First Appellate Court that appellant had failed to establish rash and negligent driving on part of the driver, being was quite correct, appeal was dismissed.

Yousuf Ali Rizvi for Appellant.

Mansoor-ul-Arfin and Ali Mohammad F. Seth for Respondents.

Date of hearing: 12th August, 1987.

This appeal under section 100, C.P.C. is filed by the appellant/plaintiff against the judgments and decrees passed by the learned Vth Additional District Judge, Karachi in Civil Appeals Nos.43 and 51 of 1975. At the hearing of appeal Mr. Mansoorul Arfiri, who appeared for respondent No.3 raised a preliminary objection to the maintainability of this appeal against his client on the ground that no appeal against the judgment and decree in Civil Appeal No.51 of 1971 was filed by the appellant and as such the judgment in that appeal has attained finality. In reply to the above preliminary objection, the learned counsel for the appellant contended that as both the Civil Appeals namely C. As. Nos.43 and 51 of 1975 arose from a common judgment and decree in Suit No.1702/69 and both were disposed of' by one and the same judgment, therefore, the omission on the part of the appellant to file a certified copy of decree in Civil Appeal, No.51/75 is of no consequence. Alternatively, it is contended by the learned counsel that subsequently the appellant did file a certified copy of the decree in Civil Appeal No.51/75 in Court and as such the objection raised by the learned counsel is only of a technical nature and cannot effect the maintainability of the appeal. After hearing the learned counsel for the appellant and the learned counsel for the respondent No.3, I am of the view that there is no proper appeal filed against the judgment and decree in Appeal No.51/75 and as such the said judgment and decree has attained finality.

The appellant instituted Suit No.1702 of 1969 against the respondents and one Mst. Kishwar Sultana claiming a sum of Rs.24,000 against them jointly and severally on account of doctor's professional fees, reduced efficiency and permanent disability of the plaintiff/ appellant and mental agony suffered by him for about 3 months on account of accident. It was alleged in the plaint that the aforesaid claims arose on account of an accident in which the plaintiff was injured by a Taxi which at the relevant time was owned by the respondent No.1 and driven by respondent No.2 and respondent No.3 was held liable for the above claim on account of their statutory liability as an Insurer. Learned trial Court decreed the suit of the appellant/plaintiff against the present respondents jointly and severally in the sum of Rs.15,000 with costs. Against the judgment in the suit respondents No.1 and 3 filed separate appeals. Both these appeals were heard and decided by the learned Vth Addl. District Judge, Karachi by a common judgment and the decree passed against respondents Nos.1 and 3 were reversed. The appellant then filed the above second appeal against the judgment and decree of the First Appellate Court under section 100 C P C but alongwith the memo of appeal only certified copy of decree in Civil Appeal No.43 of 1975 was filed. No copy of the decree prepared in Civil Appeal No.51/175 was filed alongwith the memo of appeal. A reading of the memo of appeal in the above case also show that the appeal was directed only against one judgment and decree. The opening paragraph of the above memo of appeal reads as follows:-

"Being aggrieved by the judgment and decree passed by the learned Vth Additional District Judge, Karachi, setting aside the decree in Suit No.1702 of 1969 passed by the learned 1st Civil Judge, Karachi, the appellant begs to file this appeal on the facts as stated below."

From the grounds set forth in the memo of appeal also it does not appear that the two separate decrees passed by the 1st Appellate Court were challenged specifically in the above appeal. Section 100, C. P. C. provides that unless otherwise provided by the Code of Civil Procedure or by any other law for the time being enforced a second appeal shall lie from every decree passed in appeal by a Court subordinate to the High Court on the grounds mentioned in that section. Similarly Rule 1 of Order XLI, C.P.C. which govern the procedure for filing of 1ts and 2nd Civil Appeals under the Code of Civil Procedure reads as follows:- .

"1.Form of appeal; What to accompany memorandum.

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or ft pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."

From reading of the above provision of law it is quite clear that a separate appeal is to be filed from every decree and the memo: of appeal in each case has to be accompanied by a certified copy of the decree appealed against. In this view of the matter even if I accept the contention of the learned counsel for the appellant that memo of appeal filed by his client may be, treated as a joint appeal against the judgments and decrees passed in both the appeals, namely Civil Appeals Nos. 43 and 51 of 1975, it will not be of any help to him as it is an admitted position that with the memo of appeal presented on 2-8-1978 only certified copy of decree in 1st Appeal No.43/75 was filed. The further contention of learned counsel for the appellant that in any case he submitted a certified copy of the decree in 1st Appeal No.51/75 on 18-11-1986 and as such the defect if any stood cured and the time may be extended by the Court a/s. 5 of the Limitation Act, is also without any substance. Firstly as provided in Rule 1 of Order XLI, C.P.C., the Court possesses no power to dispense with the copy of decree which has to lie filed alongwith the memo of appeal; secondly on 13-10-1986 when this matter came up before my learned brother K.A. Ghani, J. (as he then was) Mr. Mansoorul Arfin, for the respondent No. 3 raised a specific objection that there is no appeal against' respondent No.3 against the decree in Civil Appeal No.51/75. On this the learned counsel for the appellant requested for adjournment to study the point and thereafter filed C.M.A. No.1379 of 1986 and C.M.A. No.1380 of 1986 with prayer that certified copy of the judgment and decree in Appeal No.51/75 may be admitted on record and the delay if any in filing the same may be condoned. A perusal of the certified copy of decree in Appeal No.51/75 shows that the certified copy of the decree was applied for on 10th November, 1986 which was made ready on 17-11-1986 and was supplied to the appellant on 18-11-1986 and on the same day it was presented with an application under Order XLI, Rules 27 and 33 read with Section 151, C.P.C. and section 5 of Limitation Act for bringing it on record after condoning the delay if any. It is significant that in spite of a specific objection having been raised by the learned 'counsel for tile respondent on 13-10-1986 the appellant applied for certified copy on 10th November, 1986 after about 27 days, and there is no explanation whatsoever for this delay in making the application for grant of certified copy of the decree. The learned counsel for the appellant also contended that mere omission of filing an appeal against respondent No. 3 which is insurance company is not fatal as under Section 96 of the Motor Vehicles Act a judgment against the insured person would automatically operate against the Insurance Company. In support of above, contention he referred to the case of Man Matha Nathpuri v. Mohomed Mukhlisur Rehman (PLD 1969 SC 565). In the case cited by the learned counsel it was held that the liability of the Insurance Company a/s. 96 of the M. V. Act is a statutory liability and as such in the event of a decree having been passed against the insured the Insurance Company was liable as a judgment debtor although it may not be impleaded as a party in the suit. It was further held in that case that the requirement of law will be satisfied if a notice was given to the Insurance Company after the commencement of the proceedings. In that case the Insurance Company was added as a pro forma defendant in the suit and summons were issued to them. The Insurance Company filed written statement but thereafter did not contest the suit. In the case before me the Insurance Company not only contested the suit but filed an appeal against the judgment and decree of the trial Court passed against it and succeeded in getting the decree reversed in appeal. In these circumstances, it was necessary for the appellant to have filed an appeal against the judgment and decree against the Insurance Company if they wanted to enforce the liability against them. The case cited by the learned counsel is therefore not applicable in the circumstances of the present case. I accordingly uphold the preliminary objection raised by Mr. Mansoorul Arfiii.

With regard to appeal against the judgment and decree in Civil Appeal No.43 of 1975 the learned First Appellate Court after discussing evidence on record reversed the findings of the trial Court and reached the conclusion that there is nothing on record to show that at the time the accident took place the taxi which was driven by respondent No.2 and was owned by respondent No.1. was driven--in a rash and negligent manner. Since this finding of the learned First Appellate Court is at variance with the finding of the trial Court I have gone through the evidence recorded in the case with the, assistance of the learned counsel for the appellant and find that although reasoning s given by the learned First Appellate Court with regard to non-occurrence of the accident in the manner described by the appellant and consequential reversal of the finding of trial Court, i not very logical but the conclusions are correct. The appellant in support of his case examined himself, his brother and another independent witness Siraj Ahmad but none of these witnesses stated in their evidence that the Taxi which caused the accident 'was being driven in a rash and negligent manner at the time of accident. These witnesses also did not suggest in their evidence that the Taxi was driven at high speed, or that it was on the wrong side. On the contrary the independent witness Siraj Ahmed examined in the case by the appellant if believed, then the entire case set up by the appellant is belied. In these circumstances the conclusion arrived at by the learned first Appellate Court that the appellant has failed to establish rash and negligent driving on the part of the driver appears to be quite correct. I accordingly find no merits in this appeal which is dismissed but in the circumstances of the case leave the parties to bear their respective costs.

S.Q./A-169/K Appeal dismissed.

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