 
 
IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
CIVIL MISC. APPLICATIONS NO.2593 AND 2812 OF 2008 IN 
CIVIL APPEAL NO.1268 OF 2008 
 
 
CDA and another  
 
…Appellant(s) 
VERSUS 
Hashwani Hotels Ltd. 
 
…Applicant/Respondent 
 
For the Appellant: 
Syed Najmul Hassan Kazmi, Sr. ASC 
Mian Muhammad Hanif, ASC 
Raja Abdul Ghafoor, AOR 
 
 
For the Applicant/ 
Respondent:  
Mr. Naeem Bukhari, ASC 
 
 
Date of Hearing: 
25.9.2017 
... 
ORDER 
 
 
MIAN SAQIB NISRA, CJ.- Through the noted CMAs, 
the applicant (who is the respondent in the main appeal) seeks the dismissal 
of the appeal filed by the appellants on 11.8.2008 challenging the 
impugned judgment of the learned Islamabad High Court dated 
10.7.2008 on the ground that the same is barred by 44 days for 
the reason that when the appeal was filed, the decree-sheet was 
not attached thereto and when it (decree-sheet) was filed on 
24.09.2008 vide CMA No.2720/2008 by that time the appeal had 
become barred by the above-stated number of days.   
2. 
 
Brief facts of the case are:- that the applicant filed a 
suit for declaration, permanent injunction, restitution and damages 
alternative for the specific performance, possession and compulsory 
execution and registration of lease deed in its favour against the 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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appellants. This suit was dismissed by the learned Trial Court vide 
judgment and decree dated 29.7.2006. Aggrieved of the said 
decision, the applicant filed RFA No.86/2006 before the learned 
Islamabad High Court, which was allowed vide impugned 
judgment dated 10.7.2008 and the judgment and decree of the 
learned Trial Court was set aside. It may be pertinent to mention 
here that the suit of the applicant was not specifically decreed in 
any of the terms as per the prayer made by it in the plaint. Be that 
as it may, on 23.7.2008, Mr. Zafar Khan, Advocate applied on 
behalf of the appellants for the certified copy of the impugned 
judgment vide Form No.4451 and the same was delivered to the 
appellants on 25.7.2008 and the appeal as mentioned above was 
filed on 11.8.2008 which was within time. The office entertained 
the appeal without any objection or calling upon the appellants to 
file the copy of the decree-sheet as well. The case of the applicant 
is that through this Form, the appellant did not apply for the copy 
of the decree-sheet, but only the impugned judgment; besides, as it 
is evident from the memo of appeal, the title and the prayer clause, 
the appellants had only challenged the impugned judgment dated 
10.7.2008 but not the decree. It is argued that as the appeal was 
incompetently filed, therefore, the applicant moved the instant 
application for the dismissal of the same and it is only thereafter 
that the appellants applied for the copy of the decree on 9.9.2008 
which was supplied on the same day and they filed the same in 
this Court on 24.9.2008 and by that time the appeal had been 
rendered barred by time. 
3. 
 
The learned counsel for the applicant has argued that 
according to Order XII Rule 4 of the Supreme Court Rules, 1980 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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(Rules, 1980) the memo of appeal had to be accompanied by the 
certified copy of the judgment and decree to be challenged and as 
the appellants have failed to do so, therefore, the appeal should be 
dismissed as being barred by law. For the purposes of drawing 
support that the memo of appeal should be accompanied by the 
decree-sheet, the learned counsel has relied upon the provisions of 
Order XLI Rule 1 of the CPC and the judgments of superior Court 
reported as Haji Abdul Karim and others Vs. Messrs Florida 
Builders (Pvt.) Limited (PLD 2012 SC 247 at page 263, para 
10), Apollo Textile Mills Ltd. And others Vs. Soneri Bank Ltd. 
(PLD 2012 SC 268 at pages 287 & 288, para 27), Cooperative 
Model Town Society through Secretary Vs. Mst. Asghari Safdar 
and others (2005 SCMR 931), Anoud Power Generation Ltd. 
and others Vs. Federation of Pakistan and others (PLD 2001 
SC 340 at pages 353 & 358) and Imtiaz Ali Vs. Atta Muhammad 
and another (PLD 2008 SC 462 at page 465, para 6). 
4. 
 
On the contrary, learned counsel for the appellants 
has argued that the decree-sheet in this case was not prepared 
along with the impugned judgment, but it was much later in time. 
When the appellants applied for the judgment of the court on 
23.7.2008, the decree-sheet was not ready and prepared and thus, 
only the impugned judgment was delivered to them. He has further 
argued that while passing the impugned judgment, the learned 
High Court has not passed a decree to hold as to what relief has 
been allowed to the applicant, i.e., either the relief pertaining to 
declaration, injunction or the specific performance etc., therefore, 
any decree prepared in the case is beyond the scope of the 
judgment, rather it is absolutely not in consonance thereto. He has 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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further submitted that when the file of the Trial Court was sent 
back to it on 15.07.2008, only the copy of the impugned judgment 
of the learned High Court was attached thereto and not the decree-
sheet. Had the decree-sheet been prepared, that should have also 
been attached therewith. It is also submitted that according to the 
provisions of Order XII Rule 4 of the Rules, 1980, the filing of the 
decree-sheet in all cases is not required as the language of this 
rule is absolutely different from the provisions of Order XLI Rule 1 
of the CPC, which provisions even otherwise are not applicable to 
the appeals filed before this Court. Learned counsel has also 
submitted that when the appeal was filed, the office did not raise 
any objection about the non-attachment of the decree-sheet. Such 
objection was only conveyed to the appellants when the office in 
this respect issued a notice on 5.9.2008, but before that the 
appellants had already procured the decree-sheet and filed the 
same. He has also submitted that even the applicant had applied 
for the judgment and decree of the learned Trial Court, but only 
the copy of the judgment was supplied to it on 15.7.2008 because 
till then the decree-sheet had not been prepared. It is for such 
reason that when Criminal Original Petition No.77/2008 was 
initiated by the applicant before the learned High Court, seeking 
implementation of the impugned judgment/decree, the decree-
sheet had not been filed alongwith. Learned counsel in support of 
his submissions has relied upon the judgment reported as Imtiaz 
Ali vs. Atta Muhammad (PLD 2008 SC 462) and Prime Dairies 
Ice Cream Ltd, Lahore vs. Commissioner of Income Tax, 
Companies Zone (2002 SCMR 540 at page 543, para 6). In the 
former judgment this Court held that where a copy of the judgment 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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impugned has been appended with the memo of appeal, while filing 
of appeal in this Court, the same would be competent as the 
impugned judgment has been treated as a decree by fiction of law 
due to the provision of Order XLV, Rule 1 of the C.P.C. In the later 
judgment it was held by this Court that since by virtue of 
subsection (2) of Section 137 of the Income Tax Ordinance, 1979 
(ITO), the provisions of the CPC relating to appeals to the Supreme 
Court against the judgment and decree of the High Court so far as 
applicable shall apply to the appeals under that section, and the 
provisions of CPC shall be deemed to have been incorporated by 
way of legislation with regards to the regulation of the procedure of 
filing of appeals to judgments under the ITO in the Supreme Court, 
therefore, by fiction of law, a judgment under appeal is to be 
treated as a decree of the High Court passed in a regular civil 
matter. 
5. 
 
Heard. The gist of the submissions made by the 
learned counsel for the parties has been provided above. However 
during the course of reasoning of this opinion, if any further 
submission made by them requires mention, it shall be so 
depicted. In order to resolve whether the provisions of Order XII 
Rule 4 of the Rules, 1980 have been complied with by the 
appellants or not, suffice it to say that this rule prescribes as 
under:- 
“(4). The petition of appeal shall be accompanied by: 
(i) 
certified copies of the judgment and decree 
or final order appealed against, and of 
Courts below;  
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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(ii) 
a certified copy of the certificate granted 
under Article 185(2)(f) where that certificate 
is not embodied in the judgment; and 
(iii) 
an affidavit of service of copy of the petition 
or appeal on the respondent.” 
 
It may also be relevant to mention here the specific provisions 
under Order I Rule 5 of the Rules, 1980 which provide that “Save as 
otherwise expressly provided by these Rules, the provisions of the Code shall not 
apply to any proceedings in the Court”. The ‘Code’ has been defined in 
the Rules to mean “the Code of Civil Procedure, 1908” (CPC). We have 
not come across any provision of the Rules, 1980 whereby the 
provisions of Order XLI Rule 1 of the CPC has been made 
applicable thereto; therefore, the case law relied upon by the 
applicant’s counsel and his reliance upon Order XX Rule 7 of CPC 
is not of much help in this case. Even otherwise order/rule ibid is 
not meant for the purpose of the determination and the calculation 
of period of limitation for the purposes of appeal, rather according 
to the said provisions, regardless of the decree-sheet when it is 
prepared, the purpose and the object is that it (decree) shall have 
the effect from the date of the pronouncement of the judgment. 
This is so clear from the wording of the rule which stipulates that 
“The decree shall bear date the day on which the judgment was pronounced …”. 
It does not mean that such date should be considered to be the 
date of coming into existence of the decree-sheet, rather the decree 
sheet should mention the date of its preparation and completion, 
so that the limitation for the appeal purpose should be reckoned 
from that date. It may not be irrelevant to mention here that there 
are no two opinions that the decree-sheet is not prepared on the 
same day, rather it takes time and therefore, the date on which it 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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came into existence is relevant and has to be mentioned in the 
decree-sheet. It may be mentioned that according to the judgment 
reported as Government of Sindh through Land Acquisition 
Officer and others Vs. Muhammad Juman and another (2009 
SCMR 1407) the limitation for filing appeal will commence from 
the 
date 
of 
decree 
and 
the 
time, 
elapsed 
between 
the 
announcement of the judgment and signing of the decree, shall be 
included in the time requisite for obtaining the copy of the 
judgment and decree. In another judgment of this Court reported 
as The Government of West Pakistan through Chief Secretary, 
Lahore etc. Vs. Niaz Muhammad (PLD 1967 SC 271) in which it 
has been clearly held that the limitation for the purposes of appeal 
shall commence from the date of preparation of the decree. In this 
case, we had sought report from the learned High Court as to when 
the decree was prepared and had also requisitioned the original 
record but it is not clear therefrom on what specific date the 
decree-sheet has been prepared. There is no material about the 
movement of file indicating as to when, after the judgment had 
been signed by the Hon’ble Bench, the file was sent to the office for 
the preparation of the decree, how much time was consumed in 
this respect and what is the exact date when the decree-sheet was 
prepared and completed in all respects. It is this date, on which 
the decree comes into existence and thus there is a serious doubt 
in this regard. This view is fortified by the fact that when the 
applicant filed the contempt petition before the learned High Court, 
the decree-sheet was not appended thereto. We had repeatedly 
required the learned counsel for the appellants to produce any 
certified copy of the decree which the applicant had applied and 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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was supplied to him so as to suggest the exact date on which the 
decree-sheet was prepared. The record of the Trial Court when sent 
by the learned High Court also does not accompany the decree-
sheet, rather it is only the impugned judgment was sent. The office 
had entertained the appeal against the impugned judgment alone 
and never required the appellants to also file the decree-sheet till 
such date when a notice in this regard was issued but before that 
the appellants had already filed an application for obtaining the 
copy of the decree-sheet which was, as mentioned earlier, supplied 
to them and had been filed. Keeping in view all these 
circumstances in totality, we are of the candid view that no sure 
date can be ascertained as to when the decree as per the 
provisions of Rule 8 Part H of Volume V of the Rules and Orders of 
the Lahore High Court, Lahore (which too were adopted by the Islamabad High 
Court) was prepared because one thing is absolutely and 
unequivocally clear that the decree-sheet was not prepared and 
was not in existence on the date of the pronouncement of the 
impugned judgment i.e. 10.7.2008, rather it is subsequently 
prepared and, as repeatedly mentioned above, the date in this 
regard is absolutely obscure. Obviously in such a situation the 
appellants’ appeal cannot be with surety held to be barred by time 
and even if that being so on account of the facts forthcoming and 
the law mentioned, the appellants are entitled to the condonation 
of delay which is hereby condoned. Before parting with this 
opinion, we must make it clear that we do not agree with the 
contention of the learned counsel for the appellants that as per 
Order XII Rule 4 of the Rules, 1980 (reproduced above) it is not 
mandatory that the impugned judgment and the decree (whereby the 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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decree-sheet has been prepared pursuant to the impugned judgment) is not required 
to be filed, rather in case where either the judgment or the decree 
has not been filed, that shall be the sufficient compliance of the 
above provision. Rather to the contrary, such an appeal filed by the 
appellants would be incompetent and the defect would only stands 
cured from the date when the decree-sheet or the impugned 
judgment is filed and obviously the time limitation shall also be 
reckoned from the date of complying with the mandatory provision 
of law. Obviously this shall be subject to the appellant in any case 
showing ‘sufficient cause’ for not filing the copy of either of the two 
documents and can seek the condonation of delay which would be 
dependent upon the facts and circumstances of each case. 
6. 
 
In light of the above, the delay of 44 days as alleged by 
the applicant in filing the present appeal is condoned. The 
applications seeking dismissal of the appeal on account of the 
limitation are dismissed. 
 
 
 
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
25th of September, 2017 
Approved for reporting 
Waqas Naseer/* 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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Be that as it may, we have required a report from the learned High 
Court as to when the decree was prepared and also requisitioned 
the original record from the learned High Court. It is not clear 
therefrom that on what specific date the decree-sheet had been 
prepared. As there is a serious doubt about the date of preparation 
of the decree in this case and the signing thereof by the competent 
authority, throughout, we have asked the learned counsel for the 
applicant to place on the record the decree-sheet which had been 
provided to it pursuant to the application which it had filed for the 
attested copy of the judgment and decree, but it has not been able 
to do so. There is no material on the record as to when the file of 
the case after the pronouncement of the judgment was sent to the 
office, where the decree sheet had to be prepared by the office. 
Moreover, the office of this Court also did not raise any objection 
while entertaining the appeal of the appellants, rather issued a 
notice on 15.07.2008 requiring them to file the copy of the decree. 
Before that date, the appellants having the awareness that the 
applicant is seeking the dismissal of this appeal being time barred, 
as a precaution, had moved an application for obtaining the 
certified copy of the decree, which was supplied to the appellants 
on 9.9.2008 and immediately, the same was filed in the office. 
Keeping in view all the facts in totality, we find it obvious that the 
decree which had to be prepared by the office in terms of the 
provisions of Rule 8 Part H of Volume V of Rules and Orders of the 
Lahore High Court, Lahore  (which too were adopted by the Islamabad High 
Court) the decree-sheet was not prepared on the same day when the 
judgment was pronounced on 10.7.2008, rather it was prepared 
subsequently, but it is not divulged from the record that on which 
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008 
 
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date the same was prepared and thus came into existence. 
Obviously, in such a situation, the benefit should be given to the 
appellants for the purpose of condoning the delay. Thus, following 
the view set out in the judgment reported as The Government of 
West Pakistan through Chief Secretary, Lahore etc. Vs. Niaz 
Muhammad (PLD 1967 SC 271), we hold that the decree-sheet 
having not been prepared on the same day, but subsequently on 
an unknown date, hence, in the circumstances, the provisions of 
Order XX Rule 7 of CPC shall not be attracted. 
6. 
 
In light of the above, we find it to be a fit case for 
condonation of delay; resultantly, the delay of 44 days in filing of 
the appeal is condoned. The applications are accordingly 
dismissed. 
 
 
CHIEF JUSTICE 
 
 
JUDGE 
 
 
JUDGE 
Islamabad, the 
25th of September, 2017 
Not approved for reporting 
Waqas Naseer/* 
