S.K. Goudu vs Kariappan

Raju, J.—The above appeal has been filed against an order of the Additional Special Judge, Dharmapuri at Krishnagiri, dated 3-7-1981, in

I.A.No. 41 of 1980 in A.S. No. 20 of 1979, whereunder the Court below dismissed a petition filed under Order 41, Rule 19 of the Code of Civil

Procedure, which in turn, was to restore the appeal which was dismissed for default on 7-4-1980, the default being of the non-filling of the printed

copy of the judgment of the trial Court. The facts are not in controversy. A.S. No. 20 of 1979 was filed before the lower appellate court against

the judgment and decree of the trial Court dated 11-8-1977. The appeal was filed on 28-11-78 in time, with a certified copy of the judgment and

decree of the trial Court. Having regard to the provisions of the Order 41, Rule 1 of the Civil Procedure Code, and Rule 135 (1) of the Civil Rules

of Practice, printed copies of the judgement are also required to be filed in cases where the judgment under appeal contains more than 700 words.

The lower appellate court, on an application made by the appellant, appears to have dispensed with the production of the printed copy (for the

present) on the ground that he had applied for printed copies and it may take some time to get them. As misfortune could befall on him, not only

the application said to have been filed was dismissed, but also a second application for the printed copies of judgements also appears to have been

dismissed. As a result, when the appeal came up before the lower appellate court for hearing, it thought fit to dismiss the appeal on account of the

default on the part of the appellant in not producing the required number of printed copies of judgment.

Thereupon, the application in I.A. No. 41 of 1980 was filed for restoration of the said appeal which also came to be dismissed. Hence the

above appeal. The learned counsel appearing on either side do not dispute the factual position as narrated above that the dismissal was only on

account of the non-filing of the printed copies of judgment, and that a certified copy of judgment and decree of the Trial Court was already filed

with the appeal at the time of presentation of the same.

Mr. M.V. Krishnan, learned counsel appearing for the appellant submitted that the lapse was a mere technical one and the same did not stand in

the way of the lower appellate court disposing of the matter on merits, and, interest of justice required that the lower appellate court should have

disposed of the appeal on merits or it should have allowed the application for restoration of the appeal on file and heard the appeal on merits. The

learned counsel appearing for the respondent opposed the application reiterating the reasoning of the court below.

After considering the respective submissions of the learned counsel on either side, I am of the view that the lower appellate court was not right in

rejecting the appeal at the initial stage as well as declining to restore the appeal when an application was made. If only the lower appellate court

had thought fit to spend at least one fourth, of the time which it had taken to write such a lengthy order and embark upon an enquiry into what the

concepts of ""ends of justice"" and ""abuse of court"" meant, real and effective justice could have been done without minding about the technicality of

the matter.

Time and again, this Court as well as the highest Court in the country have emphasised the need to be reasonable in enforcing procedural

formalities and highlighting the position that such rules of procedure are meant to be hand-maids of justice and not to be invoked to undermine the

very system of dispensation of justice. A reference to the decision in Chandrakant Bhikamdhas Bamb and others versus Baburao Bala Bahirat and

others, AIR 1982 SC 1226 can be usefully made where the Bombay High Court had an occasion to dismiss an appeal on the ground that the

paper - book as required by the High Court was not filed. Though at a later stage the paper - book was filed, the High Court was not inclined to

accept it, and hence dismissed the appeal. The Supreme Court considered the interest of justice required the order of the High Court to be set

aside. In yet another decision, reported in Smt. Dipo Vs. Wassan Singh and Others, the Court below rejected an appeal presented in forma

pauperis on the ground that the party has not presented it in person, even though the appeal has been earlier admitted and entertained. The

observations of mine are not meant to understood as though that even rules or procedure on essential matters have to be ignored or given a go-by.

So far as the present case is concerned, the certified copies of the judgment and decree were before the Court below, and even if the non-

production of printed copies of judgment is a defect, that have been waived, and in the interest of justice, the lower appellate court could have

disposed of the appeal on merits. In my view, the lower appellate court has taken a very harsh view of the matter, and in the process, denied itself

the reputation to do justice to a litigant before it. The approach as well as the conclusions of the lower appellate court cannot be approved by this

Court. The lower appellate Court, in my view failed to exercise its jurisdiction or discretion in a reasonable manner. Consequently, the appeal is

allowed, the order of the lower appellate court is set aside and A.S. No. 20 of 1979 is directed to be restored on file and disposed of on merits.

Having regard to the long lapse of time, the lower appellate court is directed to dispose of the appeal within three months from the date of receipt

of the records from this Court.