Orissa High Court
Satyabhama Pattanaik vs Bijendra Mohapatra And Others ...... ... on 20 June, 2012
Equivalent citations: AIR 2013 ORISSA 26, (2013) 121 ALLINDCAS 776 (ORI) 2013 (121) ALLINDCAS 776, 2013 (121) ALLINDCAS 776
Author: M. M. Das
Bench: M. M. Das
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) NO. 140 OF 2012
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Satyabhama Pattanaik ...... Petitioner
-versus-
Bijendra Mohapatra and others ...... Opp. Parties
For Petitioner: M/s. S.P. Mishra, Sr. Advocate
S. Nanda, Miss. S. Mishra
B. Mohanty, A.K.Dash,
S. K. Mohanty &
B.S. Pangari
For Opp.Parties: M/s. Rama Chandra Sarangi,
M.K. Patnaik &
S.S. Mohanty.
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Decided on 20.06.2012
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PRESENT:
THE HONOURABLE SHRI JUSTICE M. M. DAS
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M.M. DAS,J. This writ application has been filed by the
petitioner, who was the defendant in the suit registered as T.S.
No.382 of 1996 before the learned Civil Judge (Senior Division),
Bhubaneswar.
2. The suit was instituted by the opposite party
No.1 for a decree for declaration of his right, title, interest and
confirmation of possession over the suit land along with a
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decree for permanent injunction wherein the present petitioner
and the opposite parties 2 and 3 were arrayed as defendants.
3. Bereft of unnecessary details, it would suffice
to say that after trial, the learned trial court decreed the suit
filed by the plaintiff - opposite party No.1 by its judgment and
decree dated 01.11.2007 and 15.11.2007 respectively.
The petitioner, who was the defendant No.1
being aggrieved by the said judgment, filed R.F.A. No.80 of 2007
before the learned District Judge, Khurda at Bhubaneswar. The
appeal was filed on 27.11.2007 being accompanied by the
certified copy of the impugned judgment.
4. It is the case of the petitioner that as there
was cease work by the Lawyers at Bhubaneswar from
12.11.2007to 18.12.2007, the memorandum of appeal filed by the petitioner was accompanied with the certified copy of the judgment only. The registry of the District Judge made office note and on placing the appeal before the learned District Judge for admission, the appeal was admitted. During hearing of the appeal on 20.10.2011, it was pointed out by the learned counsel for the plaintiff-respondent in the said appeal that the certified copy of the decree, having not been filed along with the appeal memo, the appeal is incomplete. After coming to know of such bona fide mistake, the petitioner - appellant applied for a 3 certified copy of the decree, which was received by her on 28.11.2011. After obtaining the same, she filed a petition for amendment of the memo of appeal by inserting the word "decree dated 15.11.2007" in the first page of the memo of appeal as well as in the last page. The petitioner also filed a petition under Section 5 of the Limitation Act explaining the delay in filing the certified copy of the decree. Objections were filed to those applications by the opposite party No. 1-plaintiff, stating therein that the proposed amendment touches the very route of the defence argument already advanced before the court and, in fact, if the petitions are allowed, the respondent shall be highly prejudiced.
5. The learned lower appellate court heard the parties on the said applications and by its order dated 25.12.2011, rejected both the applications. Being aggrieved by the said orders of rejection of the application for amendment of the memo of appeal as well as for condonation of delay, the petitioner has preferred the present writ application.
6. Miss S. Mishra, learned counsel for the petitioner urged that on the date of filing of the appeal, as per the provisions of Order - 41, Rule - 1 C.P.C., the appellant having filed the certified copy of the judgment and the appeal having been admitted by the learned lower appellate court, after 4 which notice was issued to the respondents therein, the learned lower appellate court was denuded of his power to dismiss the appeal on the ground that the certified copy of the decree was not filed along with the memo of appeal. She further contended that the impugned order has been passed on a hyper-technical ground giving a go-by to do substantial justice between the parties. She also contended that procedures being handmade of justice, justice should not be denied to a party on the ground of technicalities and that too on the ground of a defect, which is curable in nature. According to Miss Mishra, the learned lower appellate court, on coming to know that the certified copy of the decree has not been filed along with the memo of appeal, which has already been admitted, should have given an opportunity to the petitioner to file the said certified copy and should have heard and disposed of the appeal on merit. In support of her submissions, she relied upon the decisions in the case of State of Maharashtra and others v. Nazmunnisa and others, (1998)9 SCC 191 and the judgment of the Punjab and Haryana High Court in the case of Puran Singh v. Jagtar Singh, AIR 1986 Punjab and Haryana, 84 as well as the judgment in the case of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another, AIR 2006 SC 269.
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7. Mr. R.C. Sarangi, learned counsel appearing for the opposite party No.1 - plaintiff, on the contrary, contended that as per the amended provisions of Order - 41, Rule - 1 C.P.C., requirement of filing of copy of the judgment and decree along with the memo of appeal, is not necessary and this position is accepted. There was no requirement on behalf of the petitioner to file applications for amendment and condonation of delay for accepting the certified copy of the decree, which was filed in 2011. He further contended that even though Order - 41, Rule - 1 C.P.C. has been amended providing that every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the judgment, nevertheless, Section - 96 C.P.C., which is the substantive provision in the Code for preferring an appeal before the first appellate court, provides:
"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".
He also further drew the attention of this Court to the provision of Order - 20, Rule - 6A, which provides for "preparation of decree" and, more particularly, he drew the 6 attention of this Court to Order - 20, Rule - 6A, sub-rule - (2), which states that an appeal preferred against the decree without filing a copy of the decree and in such a case, the copy made available to the party by Court shall for the purposes of Rule 1 of Order - XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of the decree for the purposes of execution or for any other purpose. (Emphasis supplied)
8. Relying upon the above provision, Mr. Sarangi vehemently argued that once the decree is drawn up, it is incumbent upon the appellant to file the certified copy of the decree along with the memo of appeal, if the same has already been drawn up by the date of filing the appeal or at a later stage, when it is drawn up. Under the provisions of Order
- 20, Rule - 6A, sub-rule (2), the certified copy of the judgment filed along with the memo of appeal shall cease to have the effect of a decree both for the purpose of execution as well as for any other purpose. The words "any other purpose" have a wide amplitude and would include filing of an appeal. In support of his contention, he relied upon the decision of the Andhra Pradesh High Court in the case of Charminar Co-operative Urban Bank Ltd. v. State Bank of Hyderabad and another, AIR 2007 A.P. 339.
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9. Considering the question raised in the present writ application, it would be apt to first refer to the decision of the Andhra Pradesh High Court in the case of Charminar Co- operative Urban Bank Ltd. (supra). In the said case, it appears that the Chairman, Co-operative Urban Bank Ltd., Hyderabad, who preferred an appeal before the High Court, filed an application under Section 151 C.P.C. in the said appeal assigning several reasons and making a prayer to dispense with filing of the certified copy of the judgment and decree including typed copy of the decree rendered by the Additional Chief Judge, City Civil Court, Secunderabad in O.S. No.11 of 2002 dated 10.11.2003 and also filed another application under Section 5 of the Limitation Act praying for condonation of delay of 1189 days in filing the appeal as against the decree and judgment in the said O.S.
10. The Andhra Pradesh High Court referred to the provisions of Order - 20, Rule - I C.P.C. dealing with "judgment when pronounced" and Order - 20, Rule - 6-A dealing with "preparation of decree" as well as Order - 20, Rule 6-B, which deals with "copies of judgments when to be made available". It also referred to the provision of Order - XLI, Rule 1 of the Code, which has undergone an amendment providing that the memorandum of appeal shall be accompanied by a copy of the 8 judgment. In the said decision, the Andhra Pradesh High Court observed as follows:-
"It is true that normally in practice the Courts would be liberal in dealing with dispense with applications. However, liberty cannot be stretched too far. It is needless to say that dispense with applications also can be permitted only where the law permits the same or at least in the interest of justice, provided there is urgency involved in the matter. Otherwise, discretion cannot be exercised in ordering such applications for dispensing with certified copies of the judgments and decrees."
The Andhra Pradesh High Court also relied upon the decision of the Supreme Court in the case of M/s. Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur, AIR 1968 SC 488, in paragraph- 10 whereof, the Supreme Court held as follows :-
"In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the Court in the proviso to S. 9 is that the Court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the Court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under O. 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal"
are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the 9 judicial examination of the decision by a higher Court of the decision of an inferior Court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court, it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax." (Emphasis supplied) The said High Court also relying upon some earlier decisions of the said Court, came to the conclusion that on a careful reading of the language of Order - XLI, Rule 1 along with Section 96 of the Code and also sub-section (2) of Order - 20, Rule - 6-A of the Code, the Court is empowered to order dispensing with the filing of the decree copy, while presenting an appeal. Moreover, it is an enabling provision and it is within the discretion of the Court either to dispense with the filing of the decree copy or to direct the party to present the appeal along with the decree copy depending upon the facts and circumstances of a given case.
11. The Andhra Pradesh High Court, on interpreting the above provisions, further came to the conclusion 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 scrutinized 10 at the initial stage soon after they are filed and the appellant is required to remedy the defects. (Emphasis supplied)
12. On coming to the decision of the Supreme Court in the case of State of Maharashtra and others (supra) cited by Miss Mishra, learned counsel for the petitioner, it will be seen that in the said decision, while dealing with the question of condonation of delay in filing the appeal by the State of Maharashtra, which was rejected by the High Court, observed that the appeal was filed with a copy of the judgment in time. However, copy of the decree was filed later on. That is the cause of delay as mentioned in the SLP, which stated that under the amended change of law the judgment and decree bears the same date and when the judgment is filed in time along with the appeal in time, the non-filing of a decree being a technical flaw ought to have been regularized by formal condonation of delay.
13. In the case of Uday Shankar Triyar (supra), the Supreme Court was considering the requirement of the appeal memo being signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) and held that such requirement is no doubt mandatory, but it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when a defect is noticed or pointed out, the Court should, either on 11 an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the Vakalatnama. (Emphasis supplied)
14. The Supreme Court, in the said case, further held that procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The Supreme Court further laid down the well recognized exceptions to this principle, which are as follows:-
"(i) Where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance; (ii) Where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) Where the non compliance or violation is proved to be deliberate or mischievous; (iv) Where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court; (v) In case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
15. At this juncture, it would be apt to take note of the provision under Order - 41 C.P.C. with regard to entertaining an appeal under Section 96 C.P.C. filed under Order - 41, Rule - 1 C.P.C.
16. As already stated, Order - 41, Rule - 1 C.P.C. has been amended by introducing the word "judgment" in place of the word "decree". The appellate Court, under Order - 41, Rule - 11 C.P.C., is required to fix the date of hearing of the appeal on the 12 question of admission and, if at that stage, it appears to the Court that the appeal should be dismissed, and the court is a court not being the High Court dismisses such an appeal, it is required to deliver a judgment recording in brief its grounds for doing so and a decree shall be drawn up in accordance with the judgment.
17. Order - 41, Rule - 12 C.P.C. provides that if the appeal is not dismissed under Rule - 11 C.P.C., the appellate Court is to fix a date for hearing the appeal. Rule - 14 of the said Order - 41 provides that when a Court fixes a date for hearing the appeal, notice of the said date of hearing is required to be affixed in the appellate Court House and a like notice is required to be sent by the appellate Court, to the court, from whose decree, the appeal is preferred and is also required to be served on the respondent or on his pleader in the appellate Court in the manner provided, for the service on a defendant, of a summons to appear and answer and all the provisions applicable to such summons and to proceedings with reference to the service thereof, shall apply to the service of such notice.
18. It is, therefore, clear from the provisions of Order - 41 C.P.C. that once an appeal is not dismissed under the provisions of Rule - 11 thereof, the appeal is to be admitted and a date of hearing is to be fixed and notice of such date of hearing is to be served on the respondent. The only provision, which 13 authorizes the appellate Court to dismiss the appeal thereafter is under Rule - 17 of Order - 41 C.P.C., which provides in sub-rule (1) thereof that where on the day fixed, or on any other day, to which the hearing of an appeal is adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal is dismissed. In the explanation to this rule, it has been provided that nothing in the said sub-rule shall be construed as empowering the court to dismiss the appeal on merit. When an appeal is dismissed under sub-rule (1) of Rule - 17 the provision for restoration of the appeal commonly called as readmission of the appeal dismissed for default is prescribed under Rule - 19.
19. In the facts of the present case, the appeal being admitted by the learned lower appellate court and summons having been issued to the respondent, the learned lower appellate court was not authorized under law to dismiss the appeal on the ground that there was no proper presentation of the appeal, as the certified copy of the decree was not filed along with the memo of appeal.
20. Summing up the facts and law, this Court is of the clear view that the learned lower appellate court has adverted to an extremely technical approach in rejecting the appeal on the ground that it was not presented in accordance with Rule - 1 of 14 Order - 41 C.P.C., when the appeal was, in fact, accompanied by a certified copy of a judgment.
21. The appeal involves substantial rights of the parties to be determined and should not have been thrown out of the precinct of the court on technical ground thereby causing hardship and prejudice to the petitioner, who was the appellant before the learned court below.
22. Justice is a virtue, which transcends all barriers. Neither the rules of procedure nor the technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. It is said even the law bends before justice. (See S. Nagaraj and others v. State of Karnataka and another and other SLP (C)s, 1993 Supp. (4) SCC 595).
23. In view of the above, this Court finds that the impugned order is unsustainable and accordingly quashes the same. The matter is remitted back to the learned lower appellate court, who is directed to accept the certified copy of the decree filed by the petitioner - appellant before it and hear and dispose of the appeal on merit by affording opportunity of hearing to all concerned. The appeal being of the year 2007, the learned lower appellate court, i.e., the learned District Judge, Khurda at Bhubaneswar shall do well to dispose of the said appeal by the end of December, 2012.
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24. The writ application is accordingly allowed.
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M. M. Das, J. Orissa High Court, Cuttack.
June 20th, 2012/Subha.