JUDGMENT CMP No. 723/1998 1. Applicants on 25th March 1997 filed Civil Second Appeal against judgment and decree passed by Learned District Judge Pulwama on 28th December 1996 in Civil First Appeal No. 29/1989 titled Hamid Ahmad and another v. Iqbal Kaloo and others, as also judgment and decree passed by Learned Sub Judge, Shopian, on 23rd February 1989 in Civil Suit titled Mst. Sara v. Iqbal Kaloo and others (File1/Transfer). Learned Sub-Judge, Shopian, vide judgment and decree dated 23rd February 1989, decreed the suit with costs. First Appellate Court dismissed appeal against Trial Court judgement with costs and upheld Trial Court judgement and decree. Certified copies of judgement and decree of First Appellate Court were enclosed with memorandum of appeal. However, applicants failed to append certified copies of judgement and decree passed by the Court of First instance/Trial Court, though judgement and decree were also impugned in the appeal. 2. Non-applicants questioned maintainability of appeal on the ground that the copies of Trial Court judgement and decree did not accompany memorandum of appeal. They insisted that in absence of copies of judgement and decree, Civil Second Appeal was liable to be dismissed at threshold. The objection taken has prompted applicants to file instant applicant for grant of leave to place on record copies of judgement and decree passed by Sub Judge, Shopian. 3. Applicants in paragraph 01 of application admit that they in terms of Order XLI Rule 1, CPC, were "supposed" to file copy of Trial Court judgement and decree with the appeal. Applicants' case is that word "shall" in Order XLI Rule 1 CPC is to be read as "may" as the procedural law is not to be allowed to be an impediment in'the course of substantial justice. It is averred that First Appellate Court has partly disallowed the appeal and recorded disagreement with some of conclusions drawn by learned Trial Judge. Applicants explain reasons for filing application in following words: "In view of this matter, the application is made because of the fact that the counsel for the respondents has taken this objection that the appeal is to be dismissed because it is not accompanied by the judgment and decree of the Court of 1st instance i.e. Sub judge Shopian". They, on grounds urged, seek permission to place on record copies of Trial Court judgement and decree, earlier not annexed with the memo of appeal. 4. They, on grounds urged, seek permission to place on record copies of Trial Court judgement and decree, earlier not annexed with the memo of appeal. 4. Application is resisted by non-applicants on the ground that as requirement to annex copy of judgement and decree of Court of first instance with memo of appeal is mandatory, failure on part of applicants to file copy of judgement of Court of first instance with appeal, renders appeal not maintainable. It is pleaded that as Civil Second Appeal was not maintainable on the date it was filed, it by time the application on hand was filed, became time barred and liable to be dismissed on the ground of limitation. It is next averred that as applicants have failed to plead a sufficient cause in application to explain failure to annex copy of judgement and decree of Court of first instance with memo of appeal, application merits outright dismissal. Non-applicants dispute that First Appellate Court partly allowed appeal or modified Trial Court judgement as claimed in application. Non-applicants, labelling application as misconceived and without substance, seek its dismissal with costs. 5. I have gone through application as well as objections filed by non-applicants and have heard counsel for parties. 6. Order XLI and XLII, Code of Civil Procedure, are relevant to present controversy and deserve to be given closer look. Order XLI deals with appeals from original decrees. Rule 1 Order XLI gives form of appeal and enumerates documents to accompany memorandum of appeal. It reads as under- "(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 Judgement: Provided that where two or more suits have been tried together and a common judgement has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the appellate Court may dispense with the filing of more than one copy of the judgment. 7. Order XLII relates to appeals from appellate decrees. Rule 1 Order XLII titled "Procedure" needs to be noticed: "1. Procedure The rules or Order XLI shall apply, so far as may be, to appeals from appellate decrees. 7. Order XLII relates to appeals from appellate decrees. Rule 1 Order XLII titled "Procedure" needs to be noticed: "1. Procedure The rules or Order XLI shall apply, so far as may be, to appeals from appellate decrees. The appellate shall, in addition to the copies of the decree and judgment appealed from, also file a copy of the judgment of the Court of first instance." 8. Conjoint reading of Rule 1, Order XLI, and Rule 1, Order XLII, leads to conclusion that copies of judgement and decree appealed from, as also copy of judgement and decree of Court of first instance are to accompany memorandum of appeal, where appeal is directed against appellate decree. 9. In the present case, appeal is directed against appellate judgement and decree as well as judgement and decree of Court of first instance or Trial Court. Applicants, therefore, had to mandatorily enclose copy of judgement and decree of Court of first instance with memorandum of appeal. Applicants have not adhered to requirements laid down in Order XLI and XLII. This is the reason they have come up with application on hand for leave to place on record copies of judgement and decree of Court of first instance. 10. It is well settled law that requirement to enclose copy of judgement and decree of Court of first instance with the memorandum of appeal is mandatory as evident from use of expression "shall" by the law makers. In the event requirement is not adhered to, appeal is rendered not maintainable. In Om Prakash Gupta v. Suresh Bakshi AIR 1998 J&K 9 : JKJ Soft JKJ/7116, where appellant had placed on record photocopy of judgement and decree of Court of first instance and failed to place on record certified copies of judgement and decree, it was held that requirement to append copy of judgement and decree of Court of first instance was mandatory and not directory as sought to be projected by appellants. The principle was reiterated in Mali v. Ghulam Haider (7 JKLR 104 (DB): JKJ Soft JKJ/8315) and Qazi Khalil ul Rehman v. Atma Ram (7 JKLR 101: JKJ Soft JKJ/8314). 11. It is important to note that applicants do not spell out any reason muchless convincing one to justify their failure to append copy of judgement and decree of Court of first instance with memorandum of appeal. 11. It is important to note that applicants do not spell out any reason muchless convincing one to justify their failure to append copy of judgement and decree of Court of first instance with memorandum of appeal. The applicants do not plead, let alone make out sufficient cause to explain their failure or delay in enclosing judgement and decree of Court of first instance. They woke up only after non-applicants took an objection to maintainability of Civil Second Appeal and insisted on its dismissal on the ground that copy of judgement and decree of Court of first instance did not accompany memorandum of appeal. Even if it is assumed, though such a view may not be permissible in view of settled legal position, that applicants could seek leave to place copy of judgement and decree of Court of first instance on record, in the facts and circumstances of the case such prayer does not deserve to be allowed inasmuch as leave is sought more than 1-1/2 year after Civil Second Appeal was filed and that too without any sufficient cause. 12. For reasons discussed, application for grant of leave to place on record copy of judgement and decree of Court of first instance is dismissed. Resultantly, Civil Second Appeal is also dismissed as not maintainable. Appeal dismissed