آخری ڈگری برائے تقسیمِ جائیداد، اس کے خلاف اپیل --- اپیل دائر کرتے وقت ڈگری شیٹ تیار نہ ہونا --- اپیل کی بقا پر اثر --- اپیل کے زیرِ التوا رہنے کے دوران ڈگری...........

 P L D 2026 Lahore 404

آخری ڈگری برائے تقسیمِ جائیداد، اس کے خلاف اپیل --- اپیل دائر کرتے وقت ڈگری شیٹ تیار نہ ہونا --- اپیل کی بقا پر اثر --- اپیل کے زیرِ التوا رہنے کے دوران ڈگری تیار کر لی جانا --- اپیل کسی ڈگری کے خلاف نہیں بلکہ کسی اور چیز کے خلاف دائر ہونے کا اعتراض --- ڈگری شیٹ کا اپیل کی بقا کے لیے ناگزیر ہونا --- دائرہ کار --- استثناء --- عدالتی عملے کی جانب سے ڈگری شیٹ تیار کرنے میں تاخیر --- اثر --- عدالت کا عمل کسی شخص کو نقصان نہیں پہنچا سکتا --- اصول --- اطلاق ---

مختصراً، درخواست گزاروں نے الگ الگ قبضے کی حصولیابی کے لیے تقسیمِ جائیداد کا دعویٰ دائر کیا، یہ دعویٰ کرتے ہوئے کہ فریقین مشترکہ جائیداد کے شریک مالک ہیں۔ عدالت نے فریقین کی رضامندی سے ابتدائی ڈگری جاری کرتے ہوئے ان کے موجودہ قبضے برقرار رکھتے ہوئے تقسیم کا حکم دیا۔ تقسیم کی کارروائی کے لیے ایک لوکل کمیشن مقرر کیا گیا، اور دونوں فریقین کی جانب سے پیش کردہ اعتراضات مسترد کیے جانے کے بعد، آخری ڈگری جاری کر دی گئی، بشرطیکہ ضروری اسٹامپ پیپر پر ڈگری شیٹ تیار کر لی جائے۔

فریقین (ریسپانڈنٹس) کی جانب سے دائر کردہ اپیل ابتدا میں ڈگری شیٹ تیار نہ ہونے کی وجہ سے خارج کر دی گئی، جس کے بعد درخواست گزاروں نے ڈگری شیٹ تیار کرنے کی درخواست دی، جس کے نتیجے میں تقسیم کا انسٹرومنٹ تیار کیا گیا اور اپیل کے زیرِ التوا رہنے کے دوران بالآخر ڈگری شیٹ بھی تیار کر لی گئی۔ اپیلیٹ عدالت نے اپیل منظور کر لی، جس کے نتیجے میں درخواست گزاروں/مدعیوں نے موجودہ سول ریوزیشن دائر کی۔

ہائیکورٹ کے سامنے پیش آنے والا اہم ترین مسئلہ جس کا تعین درکار تھا، وہ یہ تھا کہ "کیا باقاعدہ طور پر تیار شدہ ڈگری شیٹ کے بغیر اپیل قانونی طور پر موزوں اور قابلِ سماعت تھی، اور کیا ایسی اپیل دائر کرنے کی مدتِ محدودہ اس وقت شروع ہو گئی تھی جب ڈگری ابھی تیار نہیں ہوئی تھی، خاص طور پر اس صورت میں جب ڈگری اپیل کے زیرِ التوا رہنے کے دوران عدالت کے افعال یا کوتاہیوں کی وجہ سے تیار کی گئی ہو، نہ کہ فریقین کی وجہ سے؟"

فیصلہ: ضابطہ دیوانی (سی پی سی) کی دفعہ 96 اور آرڈر 41، قاعدہ 1 کے مشترکہ مطالعے سے یہ بات واضح ہوتی ہے کہ ان کے تحت اپیل صرف ڈگری کے خلاف ہی قابلِ سماعت ہے، نہ کہ فیصلے (ججمنٹ) کے خلاف۔ اپیلیٹ عدالت کو اگرچہ ججمنٹ کی نقل پیش کرنے سے معافی دینے کا اختیار حاصل ہے، لیکن ڈگری کے معاملے میں ایسا نہیں کیا جا سکتا، کیونکہ اپیل دائر کرنے کے لیے ڈگری کا ہونا ناگزیر (سائن کو وا نان) ہے۔

درخواست گزاروں نے کبھی بھی وہ ضروری اسٹامپ پیپرز فراہم نہیں کیے جس کی بنا پر ٹرائل کورٹ تقسیم کا انسٹرومنٹ اور ڈگری شیٹ تیار کر سکتی۔ درخواست گزاروں نے پہلی مرتبہ 9 فروری 2015 کو اسٹامپ ڈیوٹی جمع کروانے اور ڈگری شیٹ تیار کرنے کی درخواست دائر کی، جسے منظور تو کر لیا گیا، لیکن اس کے باوجود ڈگری شیٹ تیار نہ ہو سکی۔ ڈگری شیٹ تیار نہ ہونے میں ریسپانڈنٹس کا کوئی قصور نہیں تھا۔ اگر ریسپانڈنٹس کی جانب سے کوئی چھوٹی سی کوتاہی بھی ہوتی، تب بھی اسے ان کی اپیل کی خارج شدگی کی شکل میں ان کے خلاف سزا کے طور پر استعمال نہیں کیا جا سکتا تھا۔

اصول "عدالت کا عمل کسی شخص کو نقصان نہیں پہنچا سکتا" (Act of Court shall prejudice no man) اس مقدمے پر پوری طرح منطبق ہوتا ہے۔ درخواست گزاروں نے یہ ثابت کرنے میں ناکام رہے کہ زیرِ اعتراض فیصلے میں کوئی ایسی قانونی غلطی یا مادی بے قاعدگی موجود ہے جس کی بنا پر ہائیکورٹ اپنی نظرثانی کے اختیارات کا استعمال کرتے ہوئے اس فیصلے کو کالعدم قرار دے۔

اپیل کے ساتھ ڈگری شیٹ منسلک نہ ہونا --- اثر --- اپیل کی بقا --- دائرہ کار --- اپیل کے زیرِ التوا رہنے کے دوران ڈگری شیٹ تیار کر لی جانا --- جب اپیل کے زیرِ التوا رہنے کے دوران ڈگری شیٹ تیار کی جا رہی ہو، تو اپیلیٹ عدالت کو انصاف کے تقاضوں کو پورا کرنے کے لیے ریلیف کو ڈھالنے کا اختیار حاصل ہوتا ہے۔

ہائیکورٹ کا نظرثانی کا اختیار --- متضاد فیصلے --- ترجیح --- ہائیکورٹ جب نظرثانی کا اختیار استعمال کر رہی ہو تو اس کا فرض ہے کہ وہ دونوں زیرِ عدالت فیصلوں کا تقابلی جائزہ لے تاکہ ضابطہ دیوانی کی دفعہ 115 کے پیمانوں پر ان کی قانونی حیثیت کا تعین کیا جا سکے۔ یہ قانون کا بنیادی اصول ہے کہ زیرِ عدالت فیصلوں کو ترجیح دینے کے معاملے میں، نظرثانی کے اختیارات کا استعمال کرتے ہوئے ان کا تجزیہ کرتے وقت، ہمیشہ اپیلیٹ عدالت کے فیصلے کو ترجیح اور اہمیت دی جاتی ہے، جب تک کہ ان میں کوئی قانونی کمزوری یا مادی بے قاعدگی موجود نہ ہو۔

Final decree in a suit for partition, appeal against---Decree sheet not prepared at the time of filing appeal---Effect on maintainability of appeal---Decree prepared during pendency of appeal---Appeal not being preferred against a decree, plea of---Decree sheet being sine qua non for maintaining appeal---Scope---Exception---Delay on the part of court staff in preparing the decree sheet---Effect---Act of court would prejudice no man---Principle---Applicability---Briefly, the applicants instituted a suit for separate possession through partition asserting that the parties were co-owners of joint property; The suit was preliminarily decreed with the consent of the parties, directing partition while maintaining their respective possessions---A local commission was appointed to conduct partition proceedings, and after objections from both sides were dismissed, a final decree was passed, subject to preparation of the decree sheet on requisite stamp paper---An appeal filed by the respondents was initially dismissed due to non-preparation of the decree sheet, whereafter the applicants applied for its preparation, resulting in the instrument of partition being prepared and the decree sheet ultimately drawn during the pendency of the appeal---The appellate court accepted the appeal leading the applicants/plaintiffs to file the present civil revision---Pivotal issue which came up before the High Court requiring determination was as to “whether the appeal was competent and maintainable in the absence of a formally prepared decree sheet, and whether limitation for filing such appeal commenced before the decree was drawn, particularly where the decree was prepared during the pendency of the appeal due to acts or omissions of the court rather than the parties?”---Held: From the joint reading of S.96 and O.XLI, R.1 of C.P.C., it was made clear that appeal in terms thereof was only competent against the decree and not the judgment---Appellate Court was though competent to dispense with the production of copy of judgment but not the decree, which was sine qua non for preferring an appeal---Applicants never provided the requisite stamp papers, enabling the Trial Court to prepare the instrument of partition and the decree sheet---Applicants for the first time moved an application for submission of stamp duty and preparation of decree sheet on 9.02.2015, which was allowed but even then the decree sheet was not prepared---There was no fault of respondents in preparation of decree---Had there been any peccadillo on the part of respondents it could not be made basis to penalize them in the shape of dismissal of their appeal---Principle “Act of court shall prejudice no man” was squarely attracted to the present case---The applicants had failed to point out any illegality or material irregularity in the impugned judgment, warranting interference by the High Court in exercise of revisional jurisdiction so as to set at naught the impugned judgment---

Decree sheet not appended with the appeal---Effect---Maintainability of appeal---Scope---Decree sheet being prepared during pendency of appeal---When decree sheet was being prepared during the pendency of the appeal, so the appellate court was vested with the power to mould the relief for meeting the ends of justice.

Revisional jurisdiction of the High Court---Judgments at variance---Preference---High Court while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments of Courts below in order to determine their validity on the touchstones of S.115 of the C.P.C---It is cardinal principle of law that in the matter of giving preference to the judgments of lower courts, while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, unless those are suffering with any legal infirmity or material irregularity.

JUDGMENT

---This revision application in terms of Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”) originates from the suit for separate possession through partition instituted by the applicants against respondents before the learned Civil Judge, Chakwal with the assertions that parties to the suit are co-owners and it is still joint and not yet formally partitioned. Suit was ultimately decreed preliminary with the consent of both the sides on the basis of their statements that the suit property may be partitioned by keeping intact the respective possession of the parties by way of judgment dated 11th February, 2010. In pursuance to the preliminary decree local commission submitted his report, which was objected by both the sides but objections were turned down and final decree was passed on 23rd April, 2011. Feeling dissatisfied, respondents Nos. 1 to 32 (hereinafter referred to as “respondents”) preferred an appeal before learned Additional District Judge, Chakwal, which was accepted vide judgment and decree dated 20th June, 2016, hence this revision application.

2. Learned counsel for the applicants at the very outset submitted that appeal was not preferred against the decree and as such it was not tenable at all. He added that decree was though prepared during the pendency of the appeal by the orders of the appellate court but it was never brought on record by the respondents to meet with the requirements of Order XLI Rule 1 of the C.P.C. Learned counsel emphasized that even otherwise after preparation of the decree, the respondents never amended their appeal, so as to call in question the vires of decree. It is contended that appeal has wrongly been accepted by the appellate court and the impugned judgment is not tenable. In order to supplement his contentions, learned counsel placed reliance on Nasir Khan v. Zamin Shah and another (2019 CLC 741), Shaukat Ali v. Muhammad Sharif (2013 CLC 1558) and Abdul Majeed and 6 others v. Mst. Haleema and 18 others (1987 CLC 2331).

3. On the other hand, learned counsel for respondents submitted that since decree was not prepared by the trial court in pursuance to the final judgment, so there was no occasion for the respondents to append the decree with the appeal. Learned counsel contended that the decree was ultimately prepared by the trial court on the direction of the appellate court and on preparation of decree it was immediately made part of record. It is argued with vehemence that appellate court is vested with all the powers of trial court and though after making the decree as part of record no amendment was introduced in the appeal but the appellate court was vested with the power to mould the relief. It is contended that the respondents could not be made to suffer on account of act of court. Reliance is placed on Muhammad Farooq and others v. Javed Khan and others (PLD 2022 Supreme Court 73), Sher and another v. Bhai Khan and another (2008 CLC 232), Jabar Khan v. Akhtar Hussain and others (2001 MLD 1624) and Noor Ali and 3 others v. Muhammad Uris and 11 others (2000 YLR 1564).

4. Heard. Record perused.

5. Parties to the suit are admittedly co-owners. Suit was initially decreed preliminary on the basis of statements of the parties that they have no objection on decreeing the suit provided their possession be kept intact. In furtherance thereof, local commission was appointed with the direction to visit the suit property and conduct the partition proceedings according to the possession of the parties and site plan submitted by the applicants. It was also observed that shares of the parties are already determined in the Fard Jamabandi and site plan . The local commission was directed to submit report on the following points :-

i. Whether the suit property is partitionable?

ii. If yes, what is the mode of the partition?

iii. What is the market value of the property?

In terms of above noted reference, local commission submitted his report. Both the sides being offended offered their objections to the report and initially while acceding the objections of the parties, report of local commission was set aside whereafter Syed Abid Hussain Zaidi, Advocate along with revenue officer was appointed as local commission. On submission of report by the commission subsequently appointed, the respondents submitted their objections but while discarding the objections, suit was finally decreed by way of judgment dated 23rd April, 2011. For the purpose of refence relevant part of the judgment is reproduced below :-

“…….I don't see any material objections raised by the parties. Therefore, objections are turned down. The report of local commissioner Syed Abid Zaidi Adv. and Revenue Officer are accepted. The mode of partition suggested by the learned local commissioners are accepted and finalized by this court. Therefore, the suit of the plaintiffs is hereby finally decreed. The reports of local commissioners be made the part of final decreed. Decree sheet be drawn on the requisite stamp paper which will be supplied by the plaintiffs in accordance with the value of the suit property suggested by the local commissioners. No order as to be costs……”

(Underlining supplied for emphasis)

The respondents being aggrieved preferred an appeal against the judgment dated 23rd April, 2011, which was dismissed by learned Additional District Judge, Chakwal vide judgment dated 6th June, 2013 on the ground that decree sheet has not been prepared and respondents as well as applicants are not ready to submit stamp duty. Following the mandate, the applicants themselves moved an application to the trial court for preparation of decree on 9th February, 2015 which was allowed on 14th February, 2015 and resultantly, instrument of partition was prepared on the same day. The appeal was presented by the respondents on 5th March, 2015 but that too was not accompanying the decree sheet as it was prepared on 21st March, 2016.

6. In the above backdrop, it is main contention of learned counsel for the applicants that appeal was not maintainable at all and it was barred by time as well. To this effect, it is observed that Section 96 and Order XLI Rule 1 of the C.P.C. are the relevant provisions, which are reproduced below :-

“96. Appeal from original decree– (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court and the Court shall decide the appeal within sixty days from the date of first appearance of the respondent in appeal.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with consent of parties.”

*************

“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 his 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.

Contents of memorandum.--(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.”

(Underlining supplied for emphasis)

From the joint reading of the above referred provisions of law, it clearly manifests that appeal in terms thereof is only competent against the decree and not the judgment. It is also obvious therefrom that an appellate court is though competent to dispense with the production of copy of judgment but not the decree, which is sine qua non for preferring an appeal.

7. In the above perspective when case law cited by learned counsel for the applicants in support of his contentions is examined it appears that in all the cases decree sheet was though prepared by the trial court and it was ready to be made part of appeal but not appended by the appellant on account of one reason or the other mentioned therein and thus it was held that in absence of decree appeal is not maintainable. There can be no exception to this proposition of law but facts in the present case are entirely different. It is an admitted position on the record that the suit was finally decreed vide judgment dated 23rd April, 2011 with the observation that decree sheet be drawn on the requisite stamp paper, which will be supplied by the plaintiffs/applicants in accordance with the value of the suit property suggested by the local commissioners. The applicants never provided the requisite stamp papers, enabling the trial court to prepare the instrument of partition and the decree sheet.

8. A wade through the record reveals that the applicants for the first time moved an application for submission of stamp duty and preparation of decree sheet on 9th February 2015, which was allowed vide order dated 14th February 2015 but even then the decree sheet was not prepared. The applicants, however, moved an application for dismissal of appeal which was decided vide order dated 19th January, 2016 with the following observations:-

11. Respondents Nos. 1 and 2 of appeal who were plaintiffs in the suit gave application for summoning of decided file dated 23.04.2011 and for submission of stamp duty for preparation of final decree sheet on 09.02.2015. On this application, original record was summoned. On 14.02.2015, learned trial Court in a separate order, allowed the application for submission of stamp duty and prepared instrument of partition. Certified copies of instrument of partition are also annexed with appeal. This instrument of partition is prepared on stamp paper. However, no decree sheet in accordance with Order XX Rules 6 and 7, C.P.C. and on the prescribed performa of Appendix-D was prepared by learned trial Court. Relying on citation presented by learned counsel for appellants 2001 MLD 1624 where it is held that when decree sheet was not prepared by trial Court, appellate Court should keep the appeal pending and direct trial Court to prepare the decree sheet or direct the appellant to apply to the trial Court for preparation thereof. In the light of this citation, learned trial Court is directed to prepare the decree sheet on the prescribed performa as provided in Order XX Rules 6 and 7, C.P.C. and Appendix-D. Appellants are directed to produce certified copy of decree sheet in appeal. The decree sheet has not been prepared till today, therefore, appeal cannot be consider to be time barred as limitation will run from the date of preparation of decree sheet. The objection with regard to maintainability is partially accepted to the extent of preparation of decree sheet whereas remaining objections are turned down.”

In pursuance to the above, trial court prepared the decree sheet on 21st March, 2016, which was accordingly made part of record.

9. In somewhat similar facts and circumstances in the case of Jabar Khan v. Akhtar Hussain and others (2001 MLD 1624), this Court held as under:-

“It is axiomatic that the appeal is preferred only against the decree and not the judgment/order. Since no decree sheet had been prepared in the instant case, therefore, it could not be successfully maintained that the time limited for filing of appeal had begun .to run against the appellant. Respectfully following the rule laid down in the case of "Sher Muhammad v. Muhammad Khan and another" noted supra that in such an eventuality, the Court should keep the appeal pending and direct the lower Court to prepare the decree or direct the appellant to apply to the lower Court for the preparation thereof, whereafter the said decree is brought on the record and then only the appeal is heard and decided. I am persuaded to hold that the time limited for the appeal had not begun to run for the decree sheet itself was not prepared, therefore, there was no question of appeal of being barred by time. In the circumstances the learned Appellate Court has proceeded with material irregularity amounting to illegality in the exercise of its jurisdiction while dismissing the appeal of the petitioner.

5. In result, this revision is accepted, the order, dated 5-1-2000 dismissing the appeal is set aside, resultantly, the said appeal shall be deemed to be pending before the learned Appellate Court who shall proceed to decide the same on merits. There shall, however, be no order as to costs.”

Reference to the above effect can also be made to Sher and another v. Bhai Khan and another (2008 CLC 232) and Noor Ali and 3 others v. Muhammad Uris and 11 others (2000 YLR 1564).

10. It is an oft repeated principle of law that no party can be made to suffer on account of any act or omission of Court. Preparation of decree was the function of court and its ministerial staff, which was subject to supply of stamp duty by the applicants. There was no fault of respondents in preparation of decree. Had there been any peccadillo on the part of respondents it cannot be made basis to penalize them in the shape of dismissal of their appeal. This well-known principle is founded on maxim “actus curiae neminem gravabit” (an act of the court shall prejudice no man). A litigant cannot be taxed, much less penalized of the act or omission of the court. Reference to this effect can be made to Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. (2016 SCMR 834) and Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 Supreme Court 69).

11. So far contention of learned counsel for the applicants that the respondents since did not question the decree in their appeal, so it cannot be set aside; suffice to observe that decree sheet was prepared during the pendency of the appeal, so the appellate court was vested with the power to mould the relief for meeting the ends of justice. Guidance to this effect can be sought from Muhammad Farooq and others v. Javed Khan and others (PLD 2022 Supreme Court 73).

12. This application is though arising out of divergent views of the courts below as the conclusion are contrary to each other but this Court, while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments in order to determine their validity on the touchstones of Section 115 of the C.P.C. It is cardinal principle of law that in the matter of giving preference to the judgments of lower courts, while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, unless those are suffering with any legal infirmity or material irregularity. Reference in this respect, if needed can safely be made to the case of Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300). Relevant extract from the same is reproduced herein below:-

“12………We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the cases of Madan Gopal and others v. Maran Bepari and others (PLD 1969 SC 617) that “If the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding.” This view also finds support from the cases of Muhammad Shafi and others v. Sultan Mahmood and others (2010 SCMR 827)……..”

The above view also finds support from the cases of Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1) and Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398).

13. After having a comparative analysis of both the judgments, I am of the candid and firm view that the learned Additional District Judge, Chakwal has rightly interfered with the judgment passed by the learned Civil Judge, Chakwal. The applicants have failed to point out any illegality or material irregularity in the impugned judgment, warranting interference by this Court in exercise of revisional jurisdiction so as to set at naught the impugned judgment. The instant application thus fails and is dismissed with no order as to costs.

Civil Revision No. 830-D of 2016

Syed IMTIAZ HUSSAIN Versus

MUHAMMAD HUSSAIN and 35 others