Babu Singh vs M.C. Ropar and others

T.H.B. Chalapathi, J.—Since the office has been taken an objection that the appeal is barred by time, the same has been placed before me to decide the said objection.

The judgment of the Ist Appellate Court was rendered on 27-8-1997 and the appeal has been filed on 24-10-1997. Therefore, the appeal is filed within time. After filing of the appeal, the office had taken the following objection:

(i) Affidavit should be attested.

(ii) Opening shoot should be filed properly.

(iii) Index should be complete.

(iv) Case should be page marked.

After complying with the said objections, the memorandum was represented on 26.11.97. Again the office had taken objection that the affidavit has to be signed by the Counsel and the objection dated 24-10-1997 has not been completely complied with. After complying with the said objection, the appeal was again represented on 2-12-1997. On 12-3-1998 another objection was taken by the office that it should be explained how the appeal in within limitation. According to the office, by the time the appeal was represented on 2-12-1997, it was barred by time.

The learned Counsel for the Appellant represented the appeal saying that the appeal is competent in view of the decision of the Allahabad High Court in Syed Mohammadi Husain Vs. Mt. Chandro and Others, . Thus the matter has been placed before me to decide whether the appeal is within time.

The order dated 27-8-1997 which is impugned in this appeal is as follows:

Present: None

The appeal has been called out repeatedly.

Await.

sd/- Addl. Distt. Judge, Ropar.

27-8-1997

Called again. Harjit Singh Churia, & M.C. Khurana is present. But none is present for the Appellant. The appeal is dismissed. File be consigned.

sd/- Addl. Distt. & Session Judge, Ropar.

27-8-1997

Thus it is clear that the appeal was dismissed for default.

The Appellant has filed an application in this Court to exempt the filing of the copy of the decree sheet on the ground that the Appellant was informed that the decree-sheet in the case has not yet been prepared. When the appeal was dismissed for default and when the decree sheet has not been prepared, the Appellant cannot be found fault with. In fact the lower Court treated the same as an order not a judgment as can be seen from the copy of the order filed in this Court. Therefore, non-filing of the decree is not fatal to the maintainability of the appeal.

Learned Counsel appearing for the High Court argued that under Order 41 Rule 1 CPC filing of the certified copy of the decree-sheet of the Lower Court''s order against which the appeal is filed is necessary, Since the copy of the decree with the appeal was not filed the appeal is barred by time.

There cannot be any doubt that an appeal filed without copy of the decree is no appeal in the eyes of law. But as held by the Supreme Court in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and decree before the decree drawn up as he has done all that he could and he has made a proper application for obtaining the necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. The time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree. Further it has been held in the decision above that the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. The Supreme Court also observed that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41 Rule 1 of the Code of Civil Procedure. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most import step to take in case of defective presentation of appeals is that they should by carefully scrutinised at the initial stage soon after they are filed and the Appellant required remedy the defects. If at the time when the appeal is preferred a decree has already drawn up by the trial Court and the Appellant has not applied for it in time it would be clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would however be substantially different if at the time when the appeal is presented before the Appellate Court a decree in fact had not been drawn up by the trial Court, in such a case if an application has been made by the Appellant for a certified copy of the decree, then all can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up and it is a decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect, the appeal may be returned to the Appellant for presentation with the certified copy of the decree after it is obtained.

In the present case, the Appellant has clearly stated that the lower Appellate Court has not prepared any decree since according to the lower Appellate Court, the order of dismissal of the appeal for default is only an order and is not a judgment. Therefore, I am of the opinion that non filing of the decree is not fatal to the maintainbility of the appeal since no decree has been prepared. Further it is the duty of the Registry of the High Court to see whether there is any non-compliance with the Order 41 Rule 1 CPC at the initial stages, itself. But no objection as to non-filing of the decree has been taken when the case was returned at the initial stage. In fact the office took the objection that the appeal was barred by time by the time it was represented. There may be delay in representation of the appeal, but once the appeal was filed and when no decree has been prepared, the subsequent delay in representation of appeal after it is returned for complying with certain objections cannot be taken into for computation of the period of delay. If the appeal is filed after complying with all the mandatory requirements, then it is to be taken that the appeal is filed on the date of the original presentation/filing.

In the case on hand, I am of the view that the appeal has been filed within the period prescribed under law and subsequent delay in complying with other objections raised by the Registry cannot be said to be fatal to the maintainability of the appeal. The office objection is, therefore, overruled. Let this appeal be listed for motion hearing.