Avudai Ammal vs Ganapathi Aiyar and Another

Sadasiva Aiyar, J.—The learned District Judge dismissed the appeal preferred by the 2nd defendant''s legal representative in his Court as

barred by limitation. Hence this second appeal by the 2nd defendant''s legal representative.

We think that the learned District Judge was right in his view. Order XLI, Rule 1, Civil Procedure Code, requires the appeal memorandum to

be accompanied by a copy of the judgment unless the Appellate Court dispenses therewith."" No such dispensation was given and hence there was

an irregular presentment of the appeal on 27th July 1910 to the District Court; Assuming, however, that the presentation of the copy of the

judgment was dispensed with by the Appellate Court the appeal was presented long out of time. The appellant could not claim the deduction of

any period as required for obtaining a copy of the judgment, as no time could be required or Could have been spent in obtaining copy of the

judgment when such copy was dispensed with.

The time spent in obtaining a copy of the same judgment for purposes of filing a different appeal in another suit (though it was a connected suit

disposed of with the present suit by a single judgment) cannot legally be excluded in computing the period of limitation, for filing this appeal.

An Appellate Court would ordinarily, no doubt, do well to exercise the discretion vested in it by law to excuse the delay in the presentation of

an appeal, if copies of the lower Court''s judgment were'' made available somehow for the use of the Court and of the respondent at a reasonable

time before the data fixed for the hearing of the appeal, though no copy was filed with the appeal memorandum, provided that a connected appeal

had been filed in time.

But, in this case, the 2nd defendant and his legal representative have no merits in their case in the light, of the findings of fact which we have

come to in deciding the second appeal heard by us in the connected suit and we are not inclined to assist the 2nd defendants'' legal representative

in her attempt to non-suit wholly or partially the plaintiff (who has got merits on his side) on the strength of a mere technical defence which she

would be. entitled to argue if the delay in the presentation of her appeal to the lower Appellate Court be excused.

We dismiss the second appeal with plaintiff''s costs.

Tyabji, J.

I agree. The memorandum of appeal to the District Court was presented on the 27th July 1910. It was not accompanied by a copy of: the

judgment under appeal. Admittedly the District Court did not under Order XLI, Rule 1, of the Civil Procedure Code, formally dispense with the

necessity for filing a copy of the judgment.

It was argued that the circumstances of this case were not merely such that the copy should have been dispensed with, but that the District

Judge should have proceeded on the basis that without any leave having been obtained from him under Order XLI, Rule 1, it was necessary to file

a copy of the judgment. For there were two suits heard together; there was a common judgment in the two suits; there were appeals in both suits

to the same Court; the appeals were numbered consecutively and would in the natural course be heard together. In one of the appeals a copy of

the judgment was filed, as required by law. The omission to obtain leave for not filing a second copy of the same judgment in the other appeal may,

therefore, be considered so excusable that had the appeal been dismissed on the ground of this omission alone. I Should have been very reluctant if

inspite of the difficulty and. inadvisability of our interfering in such matters lightly the, dismissal could not have been set aside by us.

Technical objections, especially in regard to forms of procedure, cannot be utilised for effecting a denial of justice : rules of procedure, as I

conceive it, are to subserve the administration of justice and are not to be taken to furnish a means for dealing with the claims of suitors by the

application of mechanical tests as a speedy and convenient substitute for adjudication upon merits.

But in this case even if the omission to file a copy of the judgment or to apply that the Court may dispense with the necessity of filing it be

condoned, still the memorandum of appeal was itself presented quite out of time, unless all the time that was taken for obtaining a copy of the

judgment for being filed in the other appeal be deducted in computing the period of limitation. It may be that if the defence of the appellant to the

respondent''s suit had been less technical, and if in that case. I had had to decide the question for myself I should not have dismissed the appeal on

the technical grounds above referred to. But this is a case where the well-recognised, principle of a technicality defeating technicality may properly

be brought into play. See per Jessel, M. R. in Gainsford v. Dunn (1874) 17 Eq. 405 : 43 L.J. Ch. 403 : 30 L.T. 283 : 22 W.R. 499.

I find, therefore, that like my learned brother 1 should have come to the same conclusion as the District Judge.

For these reasons, I agree that this appeal should be dismissed with the plaintiff''s costs.