Badri Nath vs Hari Bhagat

(1) This appeal is directed against the decision dated 12421968 of the Collector, Udhampur, dismissing the appeal filed by the appellant against

the judgment and decree dated 2941968 passed by the Assistant Collector, Udhampur, (decreeing the respondent's suit in so far as it related to

the ejectment of the appellant from land measuring 19 kanals and 16 marlas situate in Village Kan Jagir, Tehsil, Udhampur) interalia on the ground

that the appellant had not filed a copy of the decree passed by the Assistant Collector along with the memorandum of appeal or at any time

thereafter within the period of limitation allowed by law and no cogent reason has been made out for allowing him to file the same during the course

of arguments,

(2) Mr. Suri appearing on behalf of the appellant has ' urged that the first appeal against the decision of the trial court was filed before the Collector

on 2251968 and right upto 20111968 no objection was raised either by the office of the Collector or by the opposite party to the effect that the

memorandum of appeal not having been accompanied by a copy of the decree the appeal was not property presented and was incompetent. The

argument of the learned counsel is that the appeal having been admitted without a copy of the decree it could not have been dismissed

subsequently on the ground that the memorandum of appeal was not accompanied by the requisite copy. He has further submitted that even

assuming for the sake of argument that the appeal was not properly presented the lower appellate court ought to have condoned the delay under

Section 5 of the Limitation Act He has in support of his submissions relied upon the rulings reported in AIR 1956 Assam, 120, AIR 1955 NUC

2919 AIR 1961 Punjab, £1 AIR 1968 J&K, 19, AIR 1922 Lahore, 172 and AIR 1923 Madras, 482.

(3) Mr. D. D. Thakur, appearing for the respondent has on the other hand submitted that the provisions of Order 41 rule 1 of the Code of Civil

Procedure are mandatory and the memorandum of appeal must be accompanied by a copy of the decree appealed against. He has further

submitted that even the appellate court has no power to dispense with a copy of the decree and since the memorandum of appeal before the lower

appellate court was not accompanied by a copy of trial court decree, the appeal was incompetent. He has in this connection referred me to a

decision of the Supreme Court reported in AIR 1961 SC 832. He has further urged that even assuming that section 5 of the Limitation Act applies

to appeals under the Tenancy Act, no sufficient reason for condonation of delay in filing a copy of the decree has been made out in the present

case.

(4) I have given my earnest consideration to the submission made by the learned counsel for the parties and I am of the opinion that the order

passed by the lower appellate court is correct and cannot be interfered with. The provisions of Order 41 Rule 1 (1) of the Code of Civil

Procedure are imperative and it is essential that the memorandum of appeal should be accompanied by a copy of the decree appealed from. If a

copy of the decree appealed from is not filed with the memorandum of appeal, the appeal is defective, incomplete and cannot be treated as validly

presented. I am fortified in this view by a decision of the Supreme Court in Jagat Dhisha Bhargava Vs Jawahar Lal Bhargaza and other, AIR 1961

SC 832 wherein their Lordships hold that if at the time when the appeal is preferred a decree has already been drawn up by the trial court and the

appellant has not applied for it in time it would be a clear case where the appeal would be incomplete and a penalty of dismissal would be justified.

(5) In Debendra Nath Dei and others. Vs. Hrishipada Purkayastha and others, AIR 1956 Assam, 120, the appellants were allowed to file a copy

of the decree appealed from after the prescribed period of limitation as the lower appellate court had failed to draw up the decree as required by

Section 33 of the Civil Procedure Code.

(6) In Mahabir Prasad Sharma Vs. Lakshmi Narayan Surekha, AIR 1955 NUC 2919, the delay in filing a certified copy of the decree was

condoned under Section 5 of the Limitation Act on the ground that for an appreciable time after the passing of the West Bengal premises Rent

Control (Temporary Provisions) Act (17 of 1950) appeals were admitted in the court of Small Causes even if a copy of decree did not

accompany the memorandum of appeal.

(7) In Sham Lai, Thakar Dass Aggarwal Vs. Punjab National Bank AIR 19bl Punjab, 81 the appellant was held entitled to the benefit of Sec. 5 of

the Indian Limitation Act on the ground that the appeals were filed for a considerable length of time in the High Court without a copy of the decree

in the erroneous belief that no copy of the decree sheet was required to be filed along with the memorandum of appeal.

(8) In the present case there was no default on the part of the trial court or its office and the decree appears to have been drawn up before 85 68

on which date a copy of the same was supplied to the respondent. Furthermore, an application for a copy of the decree does not appear to have

been made by the appellant before 6111968, nor was the requisite copy produced by him before the lower appellate court before 201168. There

is also nothing to show that any practice of filing the appeals in this court without a copy of the decree appealed from had come to be built up.

(9) It is also to be noted that in his first application dated 2568 for a copy of the judgment of the trial court the appellant did not mention that he

required it for the purpose of filing an appeal. Moreover, neither any request for time to produce the requisite copy was made nor granted to him

by the lower appellate court. The Single Bench decision of this court in Mst Mali Vs. Lassi Thakur and other, AIR 1968 J&K 19 cited by Mr. B.

L. Suri is. therefore, clearly distinguishable, and cannot be pressed into service by him.

(10) The contention of Mr. Suri that the appeal having been admitted on 22568, it could not have been dismissed thereafter on the ground that the

memorandum of appeal was not accompanied by a certified copy of the decree appealed from, has no force. In Ram Nath Vs. Kanhya Lal and

another, AIR 1967 Punjab, 204 it has been held that even after an appeal has been admitted without a certified copy of the decree appealed from

the requirements of the relevant rule is not at an end andit is open to the court to dismiss the appeal on the ground that the aforesaid certified copy

was not filed with it.

(11) Bearing in main the provisions of Order 41 Rule 1 of the Code of Civil Procedure and the observations of their Lordships of the Supreme

Court in AIR 1961 S. C. 332. I am clearly of the opinion that appeal presented by the appellant before the Collector Udhampur, was defective

and incompetent.

(12) The next question for consideration is whether the extension of time for filing a copy of the decree appealed from can be granted under

Section 5 of the Limitation Act and if so, whether sufficient reasons for exercise of discretion in favour of the appellant have been made out in the

present case

(13) Although it cannot in view of the decisions reported in AIR 1922 Lahore, 170 and AIR 1923 Madras, 482 be doubted that the provisions of

Section 5 of the Limitation Act can be invoked for condoning the delay and extending the time for filing a copy of the decree, cogent reasons for

exercise of the discretion must in my judgment be made out.

(14) Let us now see whether adequate and satisfactory reasons for exercise of discretion in favour of the appellant under Section 5 of the

Limitation Act had been made out in the present case. The appeal before the lower appellate court appears to have been presented by Mr. G. L.

Goel, Advocate, who I am told has about 17 years standing at the Bar. He should have been well aware that a copy of the decree has to

accompany the memorandum of appeal. He has not given any cogent explanation for the omission to file a copy of the decree along with the

memorandum of appeal or its nonproduction within the period of limitation prescribed for filing an appeal. In the application filed by him on behalf

of the appellant lithe only reason assigned for condonation of the delay in filing a copy of the decree appealed from was that the appellant was an

illiterate person and [a copy of the decree had not been filed by him 'along with the memorandum of appeal through an oversight. This laconic

application has not even been supported by an affidavit. It is now well settled that ignorance of law is no excuse and mistaken advice negligently

given by a counsel cannot be a ground for condonation of delay. In the circumstances, the delay cannot be excused. It is also interesting to note

that in neither of the aforesaid two rulings viz AIR 1922 Lahore, 170 and AIR 1923 Madras, 482 cited by Mr. Suri the discretion in favour of the

appellant was exercised under Section 5 of the Limitation Act and the delay in filing a copy of the decree excused. The Collector was, therefore

right in dismissing the appeal as time barred.

(15) This appeal, therefore, fails and is hereby dismissed but in the circumstances of the case without any order as to costs.