Badrinath vs Hari Bhagat

Jaswant Singh, J.—This appeal is directed against the decision dated 12-12-1968 of the Collector, Udhampur, dismissing the appeal filed

by the appellant against the judgment and decree dated 29-4-1968 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 Kah Jagir, Tahsil, Udhampur)

inter alia 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 had been made out for allowing him to file the

same during the course of arguments.

Mr. Surf 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 22-5-1968 and right upto 20-11-1968 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 properly 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 u/s 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 (Cal) 2919,

AIR 1961 Punj 81, AIR 1968 J. and K. 19, AIR 1922 Lah 172 and AIR 1923 Mad 482.

2A. Mr. D.D. Thakur, appearing for the respondent has on the other hand submitted that the provisions of O. 41, R. 1 of the CPC 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 Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, . 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.

I have given my earnest consideration to the submissions 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 CPC 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 Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, wherein their Lordships held 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.

In Debendra Nath Deb v. Hrishipada Purkayastha, 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.

In Mahabir Prosad Sharma v. Lakshmi Narayan Sureka, AIR 1955 NUC (Cal) 2919, the delay in filing a certified copy of the decree was

condoned u/s 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.

In Sham Lal Thakar Dass Aggarwal v. Punjab National Bank Ltd., AIR 1961 Punj 81, the appellant was held entitled to the benefit of Section

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.

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 8-5-

1968 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 6-11-1968, nor was the requisite copy produced by him before the lower appellate court before 20-11-

1968. 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.

It is also to be noted that in his first application dated 2-5-1968 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 v. Lassi Thakur, AIR 1968 J and K 19 cited by Mr. B.L. Suri is,

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

The contention of Mr. Suri that the appeal having been admitted on 22-5-1968 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 v. Kanhya Lal, AIR

1967 Punj 204 it has been held that even after an appeal has been admitted without a certified copy of the decree appealed from the requirement

of the relevant rule is not at an end and it is open to the court to dismiss the appeal on the ground that the aforesaid certified copy was not filed

with it.

Bearing in mind the provisions of Order 41, Rule 1 of the CPC and the observations of their Lordships of the Supreme Court in Jagat Dhish

Bhargava Vs. Jawahar Lal Bhargava and Others, , I am clearly of the opinion that the appeal presented by the appellant before the Collector

Udhampur, was defective and incompetent.

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

Although it cannot in view of the decisions reported in AIR 1922 Lah 170 and AIR 1923 Mad 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.

Let us now see whether adequate and satisfactory reasons for exercise of discretion in favour of the appellant u/s 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 non-production within the period of limitation prescribed for filing an appeal. In the application filed by him on behalf of the appellant

the 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 Lah 170 and AIR 1923 Mad 482 cited by Mr. Suri the discretion in favour of the appellant was exercised u/s

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.

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