Kerala High Court
Celine vs Mary Matha Education Society on 24 March, 2011
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5290 of 2009(O)
1. CELINE, W/O.SRI.WILSON LASER, RESIDING
... Petitioner
Vs
1. MARY MATHA EDUCATION SOCIETY, PALIYODE,
... Respondent
2. R.MURUGAN, CHAIRMAN, MARY MATHA
For Petitioner :SRI.K.MUHAMMED SALAHUDHEEN
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :24/03/2011
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 5290 OF 2009 O
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Dated this the 24th day of March, 2011
JUDGMENT
The Writ Petition is filed by the fourth defendant in O.S.No.801 of 2008, on the file of the II Additional Munsiff's Court, Neyyattinkara. The trial court dismissed the application for temporary injunction filed by the plaintiffs. On appeal by the plaintiffs as C.M.A.No.37 of 2008, the lower appellate court set aside the order of the trial court and granted temporary injunction. The petitioner is aggrieved by the judgment in C.M.A.No.37 of 2008. Her grievance is that though she applied for certified copy of the judgment, copy was not issued to her. On verification by the Registry, the Sub Court, Neyyattinkara informed that the petitioner had filed an application for copy of the judgment on 31.1.2009. Stamps were called for on 17.2.2009 and they were supplied on 18.2.2009. It was also informed that the other defendants have also filed copy applications and that all the applications will be complied with jointly on production of stamps in all the connected applications. It is stated that that is the practice that is being followed in complying with the copy applications. W.P.(C) NO.5290 OF 2009 :: 2 ::
2. It was thought that the practice followed in the Subordinate Courts in not issuing certified copy to an applicant unless and until stamp papers are produced in all the copy applications in the case is not a sound practice. Therefore, even though the relief prayed for in the Writ Petition has become infructuous, counsel were invited to address their arguments on that question. On a request made to the Bar to address the Court on the question, Sri.O.Ramachandran Nambiar, a senior member of the Bar, came forward and assisted the court in disposing of the matter.
3. Rule 246 of the Civil Rules of Practice, Kerala reads as follows:
"246. Order in which application to be complied with:- The preparation of all copies of documents applied for or such of them as admit of being copies in full on the stamp papers deposited shall, as far as possible, be undertaken in accordance with the serial order of the application except when the Judge makes an order for precedence as regards any particular application. Such order for precedence shall be made only on a separate application filed for that purpose."
4. There is no other provision which is relevant in this context. Rule 246 provides for priority in dealing with copy applications. The W.P.(C) NO.5290 OF 2009 :: 3 ::
applications for copies shall be dealt with in accordance with the serial order of the applications. In a given case, several parties may make separate applications for copies. When a copy application is filed, a number will be assigned to that application. There is no provision enabling making any priority among the copy applications submitted in a particular case except in the manner provided in Rule
246. There is no statutory support for the practice that is being followed in subordinate courts whereby all the copy applications in a particular case would only be complied with simultaneously. If such a practice is followed, an unscrupulous litigant can defeat the interests of his opponent and prevent him from approaching a higher forum at least for quite some time. For example, an order is passed in a case, which is against the contention of one of the parties. He applies for an emergent copy of the order. The opposite party or opposite parties can prevent that copy application being complied with urgently, by filing copy applications and by not supplying the requisite stamps in their copy applications. By adopting such a method, one party can delay the issue of a copy to the other party, thereby causing delay in approaching the appropriate higher forum in appeal or revision or writ petition. On the other hand, if the copy applications in a particular case are complied with in accordance with W.P.(C) NO.5290 OF 2009 :: 4 ::
the priority and also in accordance with the priority in complying with the requisite requirements by the parties, there would be no difficulty. Even if one of the parties does not supply the requisite stamps, the other party who has supplied the stamps earlier can be given the urgent copy, though his copy application was filed subsequent to the copy application filed by the defaulting party. On such occasions, I am of the view that it is not the priority in making the copy application in a particular case as among the parties to that case that is relevant, but the urgency of the situation and the promptitude with which one of the parties complies with the mandatory requirement of supplying stamps. If such a practice is adopted, nobody would have any complaint that his copy application was not complied with because of the lapse on the part of his opposite party to supply the requisite stamps for complying with his copy application. Reasonableness and fairness demands that a person who requires an emergent copy should get it emergently, without his rights being defeated at the instance of his opposite party by adopting some undesirable tactics.
5. The aforesaid practice that is being followed in Subordinate Courts is not supported by any law. Rule 246 of the Civil Rules of W.P.(C) NO.5290 OF 2009 :: 5 ::
Practice does not enable such a practice being followed. On the other hand, I am of the view that Rule 246 is aimed at issuing copies in accordance with priority. Rule 246 does not enable a party who has applied for copy earlier in point of time but at the same time has not complied with the requirement of supplying the stamps, to continue to keep his priority over a person who has supplied the requisite stamps well in advance than the former. The priority in making the application should not result in defeating the right of the person who has complied with the requirement of supplying necessary stamps. In other words, a person who has complied with all the legal requirements should not be denied delivery of the certified copy only because the copy application filed anterior in point of time by another party is pending because of his non-compliance of the legal requirements. The Office of the Court would certainly be entitled to issue certified copy to a person who has complied with the requirements anterior in point of time, in preference to the person who applied for copy prior in point of time, but who failed to comply with the requirements within time. Rule 242 of the Civil Rules of Practice provides for calling for stamp papers. The rule reads as follows:
W.P.(C) NO.5290 OF 2009 :: 6 ::
"242. Calling for Stamp Papers:- Every day between the hours of 3 and 5 P.M. a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board of the copying section. Such list shall remain suspended for Three clear working days in accordance with Rule 6, but, if the last day should fall during a vacation the list shall remain till the day after the re-opening day. Within that time, the applicant shall supply the stamp papers called for, failing which the application shall be struck off."
This Rule is intended to enable the parties to supply the requisite stamp papers within a reasonable time, without their application for copy being struck off. At the same time, this rule could be misused by unscrupulous litigants, if the practice that is being followed as mentioned earlier is to be approved. Rule 242 may be projected as a reason for not complying with the copy applications of the parties who had supplied stamps earlier in point of time. That is, where several parties applied for copies, some of them may produce the stamps immediately when it is called for, but others may wait till the expiry of three days and withhold supplying stamps till the period mentioned in Rule 242 is over. Thus they can prevent copies being issued to the opposite party though he has supplied the stamps earlier in point of time. I am of the view that Rule 242 cannot be extended in the matter of deciding the priority in complying with the W.P.(C) NO.5290 OF 2009 :: 7 ::
copy applications. Rule 242 and Rule 246 operate in different fields. Rule 242 cannot govern the priority under Rule 246.
6. The expression "as far as possible" occurring in Rule 246 is also relevant. Priority as mentioned in Rule 246 is not an absolute rule. The priority, according to the serial order of the application need not be adhered to if one party who has applied for copy in a particular case anterior in point of time than the others, but has not supplied stamps earlier than the other parties. I am of the view that whoever first complies with all the requirements for supply of copy should be given preference in the matter of complying with copy applications.
The Writ Petition is disposed of as above. No further directions are necessary in favour of the petitioner.
(K.T.SANKARAN) Judge ahz/