Madras High Court
L. Varadarajan And Ors. vs Thomas And Ors. on 29 February, 2000
Equivalent citations: AIR2000MAD283, AIR 2000 MADRAS 283
ORDER S.S. Subramani, J.
1. Respondents in A.S. No. 168 of 1999 on the file of the District Court at Tuticorin, (now transferred to Sub-Court, Tuticorin and Renumbered as A.S. No. 133 of 1999) are the revision petitioners :
2. Petitioners are plaintiffs in O.S. No. 686 of 1996 on the file of the District Munsif's Court at Tuticorin. Their suit was decreed as per decree and judgment dated 12-10-1999. Respondents herein without filing a copy of the certified decree, filed an appeal before the District Judge. Tuticorin. along with an application LA. No. 405 of 1999, praying to dispense with the production of certified copy of the decree for the present. In the affidavit in support of that application, it was stated by the respondents that though they have applied for the certified copy of the decree emergently on 13-10-1999 itself, the same has not been issued and if they are to wait till certified copy of decree is obtained, their rights will be prejudiced and they may be permitted to file appeal without the copy of decree and they undertook to produce the same as and when it is prepared. The District Judge, as per order dated 15-10-1999, dispensed with the production of certified copy of decree and they were directed to produce certified copy of decree of the trial Court, for which 15 days time was given. It is against that order, this revision is filed.
3. I ordered notice of motion, when the matter came up for admission and the learned counsel for respondents also entered appearance.
4. Heard both sides.
5. The only question that is canvassed in this revision Is, whether the lower Court was justified in entertaining an appeal without certified copy of the decree, when there is a statutory mandate. Counsel for the petitioners relied on the decision, (Shakuntala Devi v. Kuntal Kumari) for the said purpose. As against the said contention, counsel for respondents submitted that the Court's power to dispense with the production of copy of the decree is not taken away, even though Order XLI, Rule 1 of the Code of Civil Procedure says that, certified copy of the decree shall be accompanied with the memorandum of appeal.
6. Before considering merits of the above contention, it is better to extract Order XLI, Rule 1 of the Code of Civil Procedure, which reads thus :
"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 [Provided that where two or more suits have been tried together and a common judgment 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), While considering the law, we have also taken into consideration the facts of the case and how far the Court below has taken into consideration the Interest of justice.
7. In Shankuntala Devi's case (cited supra), in para 3 of the judgment, their Lordships held thus :
"3. Section 2(2) of the Code of the Civil Procedure defines "decree". Unless there is anything repugnant in the subject or context "decree" means "the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144...." it is because the determination of any question within Section 47 is a decree that the appellant could file an appeal from the Order under Section 96 of the Code. Order 41, Rule 1 of the Code provides that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleadet "and 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". Under Order 41, Rule 1 the appellate Court can dispense with the filing of the copy of the judgment but it has no power to dispense with the filing of the copy of the decree. A decree and a judgment are public documents and under Section 77 of the Evidence Act only a certified copy may be produced in proof of their contents. The memorandum of appeal is not validly presented, unless it is accompanied by certified copies of the decree and the judgment."
It is true that the said decision supports the case of the petitioner, wherein in para 5 of the judgment, their Lordships held that the Court has no power to dispense with the filing of the copy of the decree. In that case, along with an appeal, only a plain copy of the order was filed and an application was filed, praying that the appeal be entertained without the certified copy of the order. But, it is clear from para 1 of the judgment that the attention of the Court was not drawn to the fact that a certified copy of the order had not been filed nor was the application for dispensing with the certified copy moved and an order obtained thereon and the appeal was also registered without taking note of the same. While an objection was raised by the respondents that the appeal was incompetent without a certified copy of the order, an application was filed to condone delay in filing the copy of the order under Section 5 of the Limitation Act. After getting the certified copy of the order, the same was also filed in Court. Later, High Court held that since the appeal was not accompanied by a certified copy of the order, the appeal was incompetent and there was no sufficient cause to condone delay in filing the copy. The correctness of that judgment was challenged before the Hon'ble Supreme Court. Their Lordships held that the High Court has no power to dispense with the filing of the copy of the order and there are sufficient grounds to condone delay in preferring the appeal when the party had represented the appeal immediately on getting certified copy. In this case, respondents herein moved an application, stating that they have not obtained certified copy of the decree and they want time to produce, the same. The lower Court also did not dispense with the production of the copy of the decree forever. It granted 15 days time for production of the same. So, it has not violated the statutory provisions under Order XLI, Rule 1, C.P.C.
8. Both these questions were came up for consideration before the Hon'ble Supreme Court in the decision, reported in 1992 Supp (2) SCC 473 (Bharat Khandasari Udyog v. Khandasari Inspector), a case coming under Sugarcane (Purchase Tax) Rules, 1961, which also provided for an appeal, procedure of which is similar to Order XLI, Rule 1 of the Code of Civil Procedure. Rule 24(3) of the Sugarcane (Purchase Tax) Rules, 1961. provided that the memorandum of appeal shall be accompanied by an attested copy of the order of assessment of imposing penalty or a notice of demand of Interest, if any. Since the appeal was filed without an attested copy, the Appellate Authority, dismissed the appeal as not maintainable. Writ Petition filed before the Hon'ble High Court, Allahabad, was also dismissed. The Hon'ble High Court held that Rule 24(3) was mandatory and when the memorandum of appeal was not accompanied by the copy of the order, the appeal itself could not be entertained. The scope of the said provision along with Order XLI, Rule I of the Code of Civil Procedure was considered by their Lordships in that case. It is only proper on my part to extract the entire judgment from para 5 onwards, which reads thus :
"5. Rule 24(3) is on the familiar pattern of Order 41, Rule 1, C.P.C. The requirement of the production of the attested copy of the order of assessment was, no doubt, mandatory. In the absence of an attested copy of the order, the filing of the appeal, on the analogy of the principles informing the interpretation of Order 41, Rule 1, Civil Procedure Code, would be "incomplete, defective and incompetent". But that is not to say that the appellate authority, wherever the attested copy was not produced along with the Memorandum of Appeal was prevented from calling upon the appellant to make good the deficiency and was compelled to dismiss the appeal. A similar argument was noticed by this Court in the context of Order 41, Rule 1 in Jagat Dhish Bhargava v. Jawahar Lal Bhargava :
". . . .The argument is that Order 41, Rule 1, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of Order 41 with regard to the filing of the decree being of a mandatory character....."
6. This Court held that what is relevant is the circumstance in which the non-filing of the copy of the decree came about and that mere absence of the copy of the decree without going into the justification for the non-
filing, would not automatically entail the consequence of dismissal. Repelling the contention raised in that case, this Court said :
". . . . .It would be difficult to accede to the proposition thus advanced in a broad and general form. .......
....It would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41, Rule 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. . . ."
7. In Jogdhayan v. Babu Ram this Court held that where in an appeal time had been granted for filing of the certified ropy of the decree, the Court had power to enlarge that time under Section 148. Civil Procedure Code.
8. The point to note and emphasise is that the non-filing of an attested copy of the order along with the Memorandum of Appeal does not compel the appellate authority to dismiss the appeal as if it had no other option. The appropriate thing to do in such a case is to call upon the appellant to make good the defect within the time to be specified. If cause for non-compliance is not shown and the defect not made good, then alone the appeal should be dismissed.
9. We may refer to the observations of Venkatarama Ayyar, J. (as he then was) (in regard to such matters of procedure) in A.S. Subbaraj v. M. Muthiah "The decisions under Order 33, Rules 2 and 5 are even more directly applicable to the present case. Order 33, Rule 2 provides that every application for permission to sue "in forma pauperis" shall be signed and verified in the manner prescribed for the signing and verification of pleadings and Order 33, Rule 5 provides that the Court shall reject an application for permission to sue as a pauper when it is not framed in the manner prescribed by Rule 2. These provisions thus correspond to Section 83(1) and Section 85 of the Act. The authorities on Order 33, Rules 2 and 5 clearly establish that before exercising the power of dismissal under Order 33, Rule 5 the Court should give an opportunity to the party to amend the petition and that the order of dismissal should follow only when there is thereafter a failure to amend ......
"..... .It is true that there is no express provision in the Act conferring any power on the Election Commission to permit amendment. But such a power is inherent in all bodies exercising judicial functions. ....."
10. We may also recall the observations of this Court in Owners and Parties Interested in M.V. 'Vali Pero' v. Fernandeo Lopez :
"Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not to rule the cause of justice. . . . ."
11. In the circumstances of this case we think the appellant should be afforded an opportunity to rectify the defect. We accordingly allow this appeal, set aside the order dated April 25, 1989 of the appellate authority as well as the order dated January 7, 1991 of the High Court in W.P. No. 984 of 1989 and remit the appeal to the appellate authority for a fresh disposal in accordance with law. The appellant shall file before the appellate authority an attested copy of the order dated February 8, 1989 of the Assessing Officer within two months from today. If the attested copy of the order is so filed, the appeal shall be proceeded with and disposed of on the ments, decming it to be a properly constituted appeal and no objection as to the bar of limitation shall also be permitted to be raised. The civil appeal is disposed of accordingly. No costs."
9. In the above decision, their Lordships have relied on the decision, (Jogdhayan v. Babu Ram). In paras 7 and 8 of the judgment, it was held thus :
7. Shri S.K. Mehta, learned counsel appearing for respondent 1 submitted that the execution appeal filed by the appellant in the High Court was incompetent as the certified copy of the impugned order of the lower appellate Court was not filed along with the memorandum of appeal. We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at the time of the admission and was allowed to file the certified copy "as soon as it is available". It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on June 3, 1970 and filed in Court on June 10, 1970, seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of the Code of Civil Procedure, the Court has enough power to enlarge time from time to time. Section 148 provides :
Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
8. The power given to the Court under Section 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers under Section 148, C.P.C. and in dismissing the appeal without going to the merit of the matter."
10. In Mulla -- Code of Civil Procedure (Abridged) 13th Edition, while commenting on Order XLI, Rule 1, the learned Author said thus :
"Where a decree has not been drawn up but the party aggrieved files an appeal without a copy of the decree, is it a valid presentation? There was divergence of judicial opinion on the question. The matter is now concluded by the decision of the Supreme Court in Jagat Dhish v. Jawaharlal that it is imperative that a copy of the decree should be filed with the appeal; that as the appellant is entitled to deduction of the time taken up in obtaining a copy of the decree where he has applied for it but has not been furnished with it because it had not been drawn up, the appeal filed without it is not incompetent and that the orders to be passed in such an appeal must depend on the facts of each case. The same rule applies where all appeal is preferred from an order; in such a case the memorandum should be accompanied by the copy of an order. The Court has power to dispense with the production of a copy of a judgment. But when it has not dispensed with it. Its production is mandatory."
11. The decision relied on by the learned counsel for the respondents (Jagat Dhish v. Jawahar Lal) also fully supports the case of the respondents. In fact, in Bharat Khandasari Udyog's case (1992 Supp (2) SCC 473) (cited supra). the above decision was relied on. Another decision relied on by the learned counsel for the respondents is (Balakrishna Industrial Works v. Venkatachari), wherein a Division Bench of this Court held that, an appeal not accompanied with the copy of the decree is not maintainable. But, at the same time, their Lordships took notice of the submission made by the learned counsel for the appellant that he will produce a copy of the decree next day and the appeal itself was posted for further orders and after production of copy of decree, their Lordships held that the appeal is in order and free from the objection raised. From the above decision, it is clear that in a proper case, the Court can give time for production of copy of decree and powers under Sections 148 and 151 of the Code of Civil Procedure also could be invoked and if a copy of decree is produced within the time granted, the appeal must be deemed as presented properly. In this case, the lower Court has exercised the discretion that due to urgency, the respondents must be given some time for production of copy of decree. Even though the argument of the learned counsel for the petitioners that the Court has no power to dispense with the production of copy of decree for filing the appeal is correct, that does not follow that the lower Court has no power to grant time for production of copy of decree. By granting time, it is not dispensing with the prosecution of copy of decree.
12. In the result, the C.R.P. is without merit and consequently, the same is dismissed. C.M.P. Nos. 18930 and 20376 of 1999 are also dismissed.