Darshan Singh and another vs Shri Ajaib Singh and another

S.P. Goyal, J.—This second appeal against the judgment and decree of the learned Additional District Judge, Patiala, dated May 4, 1976, was filed on August 5, 1976 but the same was returned by the office with certain objections, one of them being that the certified copy of the trial Court judgment should also be filed. The appeal was refilled along with a certified copy of the trial Court judgment on August 11, 1976, whereas admittedly, limitation for filing the appeal had expired on August 6, 1976. On a further objection raised by the office, the appellants moved an application--Civil Miscellaneous No. 1871-C of 1976--under section 5 of the Limitation Act for condonation of the delay in the filing of the said copy. The appeal came up for a preliminary hearing before Sidhu, J. who issued notice in the appeal, allowed the said application and condoned the delay vide order dated November 12, 1976.

After service of the notice in the appeal, the respondents moved this application--Civil Misc. No. 1346-C of 1976--for setting aside the ex parte order condoning the delay. By another order, dated August 23, 1976, the appellants were allowed to make up the deficiency in the court fee payable on memorandum of appeal which was also challenged in this application but at the time of arguments, the learned counsel did not choose to press this matter any further and we are no more concerned with it.

Though, in the reply filed to this application, the appellants have raised a preliminary objection that the same was liable to be dismissed having been filed beyond 30 days from the date of service upon the respondents yet this objection was not pressed at the time of the arguments. Moreover, as he held in Krishansami Panikondar v. Ramasami Chettiar AIR 1917 P.C. 179, where an appeal filed beyond limitation, without notice to the opposite party, is admitted by the admitting Judge after excusing the delay u/s 5, Limitation Act, it must be regarded as a tacit term of the order admitting the appeal that though unqualified in expression it should be open to reconsideration at the hearing at the instance of the party prejudicially affected and at the hearing the Court has jurisdiction to reconsider the sufficiency of the cause shown, and to dismiss the appeal as time barred.

On merits, the first contention raised by the learned counsel for the appellants was that the provision of Order 42 rule 2, CPC (hereinafter referred to as the Code) is only directory and non-compliance thereof within the period prescribed for filing an appeal cannot lender the appeal barred by time. In support of this contention, reliance was placed on a recent judgment of the Supreme Court in Mahant Bikram Dass Chela v. Financial Commissioner, Revenue, Punjab Chandigarh etc 1977 C.L.J. 481, wherein it was held that rule 3 of Chapter 2-C of Volume V of the High Court Rules and Orders was directory and not mandatory. This decision of the Supreme Court, in my view, has no bearing on the present case. Rule 3 which was held to be directory requires filing of three copies of the documents mentioned in the rule when the appeal under clause 10 of the Letters Patent is filed. This rule is contained in Chapter 2-C which deals with the preparation of paper-books in letters patent appeals. In these circumstances it was held that the core of the matter was not that three copies of documents mentioned in the rule must be filed but that copies of all the documents mentioned in the rule should be filed before the Court and there should be no over-emphasis on the filing of the three copies of the documents at the time when the appeal is filed. It was further observed that if no copy, at all, of any of the three documents, is furnished, the result might be different but failure to comply with the rule strictly is a mere irregularity which the Court, in the exercise of its discretion, can condone by granting further time for formal compliance with the rule. Whereas, rule 2 has been added in Order 42 by the High Court in the exercise of its powers u/s 122, Civil Procedure Code. Similar is the provision in Order 41, rule 1, respecting the first appeals which requires that the memorandum of appeal shall be accompanied by a copy of the judgment on which it is founded unless the appellate Court dispenses therewith. This provision came up for consideration before the Supreme Court in Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and it was held that the memorandum of appeal is not validly presented unless it is accompanied by certified copies of the decree and the judgment which means that the requirements of Order 41 rule 1 of the Code are mandatory. Provision of Order 42, rule 2 of the Code, is exactly similar to the provision of Order 41, rule 1, and, in view of the decision of the Supreme Court, it also has to be held mandatory. Though, no such argument was raised in Karanbir Singh v. Smt. Mukhtiar Inder Kaur (1968) 70 P.L.R. 438 of the trial Court judgment was filed after four days of the limitation. The question as to whether the provision of Order 42 rule 2 was mandatory or not was directly under consideration in Satinder Kaur Vs. Iqbal Singh, and Pattar J., held that the same was mandatory and the memorandum of second appeal must be accompanied by a copy of the the judgment of the trial Court unless the appellate Court dispenses therewith. A similar view was taken by R.N. Mittal, J. in Harbant Singh v. The State of Punjab 1972 R.L.R. 552 and Sharma J. in Regular Second Appeal No. 152 of 1964 (Shiv Dayal Dhiman v. Haveli Ram R.S.A. No. 152 of 1964) decided on February 19, 1976. In view of the decisions of the Supreme Court and of this Court noticed above, the contention of the learned counsel that the provision of Order 42 rule 2 is merely directory cannot be sustained and has to be over-ruled.

As regards the condonation of delay, the learned counsel for the appellants referred to the affidavit of Darshan Singh, one of the appellants, dated September 9, 1977, and argued that the appellant could not come to Chandigarh to file the copy earlier than August 11, 1976 because of the illness of his wife which was a sufficient cause within the meaning of section 5 of the Limitation Act I am, however, unable to agree with this contention. In the original application filed u/s 5 of the Limitation Act and the affidavit which was also filed by Darshan Singh, appellant no such plea was taken. All that was stated then was that the appellant did not know that it was necessary to file a copy of the judgment of the trial Court with the second appeal and because of this he was prevented from obtaining a certified copy of the trial Court judgment. Sufficient cause now stated for not filing the certified copy earlier than August 11, 1976 is therefore, only an afterthought and cannot be accepted. The reason given in the original application has no meaning because even according to the averments made therein it was stated that their counsel had told them that the certified copy of the trial Court judgment was required to be filed with the appeal. It was thereafter that Darshan Singh, appellant, went to Patiala and secured a certified copy of the judgment on the same day, that is, August 5, 1976. The reason for its not filing in the Court upto August 11, 1976 having been found unacceptable, it has to be held that the appellants failed to produce the same within limitation without any sufficient cause. I, therefore, find no sufficient cause to condone the delay.

It is settled law that while claiming benefit of section 5 of the Limitation Act, the appellant has to explain each day''s delay. The appellants, in this case, have failed to show any cause as to why copy of the trial Court judgment could not be filed with the memorandum of appeal during 5 days prior to August 11, 1976. In Karanbir Singh''s case (supra), certified copy had been filed after four days'' delay and no sufficient cause having been shown, the appeal was dismissed as barred by time. In view of this decision of the Division Bench, this appeal has also to be dismissed as barred by time.

In the result, Civil Miscellaneous Application No. 1346-C of 1977 is allowed and Regular Second Appeal No. 1332 of 1976 dismissed as barred by time. In view of the circumstances of the case, there will be no order as to costs.