Union of India vs Sohan Lal and others

Gurdev Singh, J.—This application u/s 5 of the Limitation Act, read with section 151 of the CPC arises out of the Regular Second Appeal No. 974 of 1968 brought by the Union of India against the appellate decree of the Second Additional District Judge, Karnal, dated the 18th of March 1968. The appeal was instituted on the 18th of June 1968, admittedly within the prescribed period of limitation, after allowing the period spent in obtaining certified copies of the judgment and decree appealed against. On the 13th of January 1969, when the appeal came up for hearing before me, Mr. Shambu Lal Puri, counsel for respondents other than the State of Punjab, took up the preliminary objection that the appeal was not properly presented and had to be dismissed without adjudication on merits, as the memorandum of appeal was not accompanied by a certified copy of the decree appealed against.

On reference to the documents accompanying the memorandum of appeal, it was found that no copy, certified or uncertified, of the appellate decree accompanied the memorandum of appeal or had been furnished till the date of the hearing. Instead, what was filed with the memorandum of appeal was only a certified copy of the memorandum of costs prepared by the appellate Court. There was thus a clear breach of the mandatory provision contained in rule 1 of Order 41 of the Code of Civil Procedure, which requires that the memorandum of appeal "shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded." It has been held in Jagat Dhish Bhargava v. Jawahar Lal Bhargava A.I.R 1961 S.C. 882, that Order 41 rule 1 is mandatory and, in the absence of certified copy of the decree, the filing of the appeal is incomplete, defective and incompetent.

Faced with this situation, Mr. Chetan Dass Dewan, Advocate-General, Haryana, who represented the appellant, sought an adjournment to ascertain how and under what circumstances omission to file a certified copy of the decree-sheet along with the memorandum of appeal had occurred. He has now put in a certified copy of the decree appealed against and come up with the present application praying for extending the period of limitation u/s 5 of the Limitation Act, 1963. The certified copy of the appellate decree, which he has placed on record, bears attestation of the Copying Department, dated the 30th of March 1968. This is also the date which the certified copy of the memorandum of costs, that was furnished with the memorandum of appeal, bears, and it cannot be disputed that both the certified copies, which in fact go to make out the decree of the appellate Court, were applied for and obtained by the appellant with in the period of limitation prescribed for filing the appeal The circumstances, under which the omission to furnish a certified copy of the decree-sheet (excluding the memorandum of costs, which is on a separate sheet of paper even in the decree as it exists on the record of the appellate Court) occurred, have been explained by Mr. Chetan Dass Dewan, under whose signatures the appeal was filed, in paragraphs 2 to 9 of his affidavit, dated the 16th of January 1969, which read thus-

That for the purpose of the said appeal an officer, namely Shri K.L. Gupta, of the office of the Military Estate, Ambala Circle, Ambala, brought with him a certified copy of the judgment and decree of the lower appellate Court, consisting of two sheets, as also a certified copy of the judgment of the Court of first instance.

That I dictated the grounds of appeal and a note to be appended thereto in the following terms:

Certified copies of the judgment and decree of the lower appellate Court and judgment of the first Court are attached.

That the grounds of appeal were typed out for submission in the Court and the same were put up before me for signatures on the I7th of June 1968.

That to the appeal as finalised only one of the two sheets constituting the decree, i.e. one bearing the amount incurred in the suit, was alone attached and by an accidental omission the other sheet was left behind. This defect in the appeal went unnoticed by me when I signed it.

That on an objection being taken by the learned counsel for the respondents on 13th of January 1969 to the effect that decree-sheet had not been attached and therefore the appeal was in competent, I made a request to the Hon''ble Court for grant of time to enable me to find out the circumstances in which one of the two sheets of the decree-sheet had not been attached to the appeal. This request was conceded by the Hon''ble Court.

That on the examination of the brief of the case on 4th of January 1969, I found the sheet of the decree which, as stated; by an accidental omission or inadvertence had not been attached to the appeal. The same is being attached with this application.

That the necessary amount of stamps of the value of Rs. 2.65 Paise required by law to be affixed on the decree-sheet had been affixed upon the sheet of the decree, which had been appended.

That the office of the Hon''ble Court did not raise the objection as to the incomplete submission of the decree-sheet when the appeal was submitted on 18th of June 1968 or there after when the appeal was placed before Hon''ble Mr. Justice S.S. Sandliawalia for the disposal of the application attached to the appeal ''intended for the grant of ad interim relief so as to direct stay of dispossession of the'' property in dispute, nor even at the subsequent stage when the appeal came up for admission on the 23rd of July 1968 before Hon''ble Mr. Justice K.S. Sarkaria. The appeal was admitted to hearing on the said date without any objection.

In short, the plea of the learned counsel for the appellant is that the omission to file the certified copy of the requisite decree sheet was neither intentional nor deliberate, but purely accidental and inadvertent, occasioned by the fact that one of the sheets, on which the copy of the decree-sheet was prepared got detached from the other and this fact came to the notice of the counsel only when the preliminary objection was raised at the hearing of the appeal and thereupon the counsel searched his brief.

In support of his submission that it is a fit case for condo nation of the delay u/s 5 of the Limitation Act, where the mistake is due to inadvertence, the learned counsel has placed reliance on Mst. Mali v. Lassi Thakur AIR 1968 J. & K. 19. It is true that in that case the delay in filing the certified copy was condoned, but it is distinguishable on facts. The appeal in that case was entertained without the copy of the decree-sheet, and when that fact was brought to the notice of the appellant''s counsel, his request for grant of time t o produce certified copy of the decree-sheet was acceded to and time granted to him for that purpose. It was in those circumstances that a learned Single Judge held that it was a fit case or condo nation of delay in exercise of the Court''s powers u/s 5 of the Limitation Act. In holding the appeal to be within time, the Court observed:

In this case both the court and the counsel have contributed to the present state of affairs. If the Court had at the time of presentation of the appeal not admitted the appeal without a copy of the decree sheet, the present difficulty would not have arisen. Or if the learned counsel who presented the appeal had cared to see that the memo of appeal was not accompanied with a copy of the decree-sheet, the difficulty could have been avoided. That is the factual aspect of this case.

Having stated this factual position it was then said:

The Court by an act of indulgence to the appellant gave him time to produce copy of the decree-sheet and when the decree-sheet was produced in pursuance of the order of the Court, the appeal will be deemed to have been presented on the initial date of presentation. Therefore the question of condo nation of delay is foreign to this case. But one thing is very clear that the appellant has been very careless and negligent, may be due to his ignorance or inattention, and for that he has to thank himself and none else. For the negligence he must pay costs to the respondents.

In the instant case the copy of the requisite decree-sheet was obtained before the appeal was filed. This copy admittedly consists of two separate sheets of paper, on one of which appears the memorandum of costs. This latter sheet (memorandum of costs) was filed with the memorandum of appeal and unfortunately tiling of only a part of the certified copy of the decree-sheet appearing on one page and not the complete certified copy of the decree-sheet consisting of the two sheets went unnoticed by everyone who dealt with it. including the official of this Court who received the memorandum of appeal, till the mistake was pointed out by the respondents'' learned counsel. Considering the facts that the copy of the complete decree sheet had been applied for and obtained before the appeal was instituted and a part of what was actually appended with the memorandum of appeal, I have no hesitation in accepting the averment of the appellant''s learned counsel that the mistake in not filing the complete certified copy of the decree-sheet was inadvertent and unintentional. It is true that at the time the memorandum of appeal was presented, the documents accompanying the memorandum were not examined by the appellant''s counsel with meticulous care, but considering the fact that a part of the certified copy of the decree-sheet had been appended and the appeal had been prepared by the Advocate-General Office, Mr. Dewan could have no reason to suspect that the entire copy was not being attached to the memorandum of appeal, and I do not think it can even be considered as a case of gross negligence or carelessness. The mistake, in my opinion, was purely accidental and inadvertent. In these circumstances the delay in furnishing the complete copy of the requisite decree-sheet must be condoned.

The learned Advocate-General has further sought to justify such an order in his favour by pointing out that the mistake was not detected by the official of this Court, to whom the memorandum of appeal was presented, and has urged that if the official had properly scrutinized the documents accompanying the memorandum of appeal and pointed out that the certified copy of the decree-sheet was not there, the defect would have been remedied by him then and there. He has pleaded that in such circumstances the appellant was entitled to the benefit of section 5 of the Limitation Act. Reliance in this connection has been placed upon the decision of their Lordships of the Supreme Court in Jagat Diesh Bhargava v. Jawahar Lal Bhargawa (supra) where dealing with rule 1 of Order 41 of the Code of Civil Procedure, Gajendra gadkar, J. (as he then was), observed as follows:

The argument is that Order 41, rule 1, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of Order 41 with regard to the filing of the decree being of a mandatory character. It would be difficult to accede to the proposition thus advanced in a broad and general form. 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 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 that 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 the 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 case like the present, if the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational pours to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him In such a case it would be open to the High Court, and we apprehend it would be its duty, to direct the subordinate Court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate Court should return the appeal to the appellant as defective, and when the decree is filed by him the question of limitation may be examined on the merits. It is obvious that the complications in the present case have arisen as a result of two factors: the failure of the trial Court to draw up the decree as required by the Code, and the failure of the office in the High Court to notice the defect and to take appropriate action at the initial stage before the appeal was placed for admission under Order 41, rule 11. It would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41, rule 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant required to remedy the defects. Therefore, in our opinion, the appellant is not justified in challenging the propriety or the validity of the order passed by the High Court because in the circumstances to which we have already adverted the said order is obviously fair and just. The High Court realized that it would be very unfair to penalize the party for the mistake committed by the trial Court and at its own office, and so it has given time to the respondents to apply for a certified copy of the decree and then proceed with the appeal.

These observations, according to the learned Advocate-General, are an authority for the proposition that if a defect in filing the appeal is not pointed out by the Court official, whose duty it is to receive the appeals, and the appeal is admitted, the appellant would be entitled to indulgence by granting him time to remedy the defects u/s 5 of the Limitation Act. I am afraid the observations of their Lordships of the Supreme Court, on which the learned Advocate-General has relied, do not support such a general and wide proposition. In fact their Lordships have specifically said in the observations quoted above that each case has to be decided on its own facts and circumstances. In the case with which their Lordships were dealing, the decree-sheet had not been prepared by the Court against whose decree the appeal was preferred. Obviously, in that situation a copy of the decree-sheet could not be furnished with the memorandum of appeal and it was only after the decree-sheet had been prepared that the appellant could obtain its copy and furnish it with the appeal. In the instant case the position is entirely different. Not only the decree-sheet had been prepared, but its copy had also been obtained by the appellant before the appeal was filed. It is true that by oversight or otherwise the official who received the memorandum of appeal omitted to notice that the complete copy of the decree-sheet had not been filed and only the sheet bearing memorandum of costs had been appended with the memorandum of appeal, but his failure to notice the omission or the mistake ''did not, in nay opinion, absolve the appellant of the necessity of complying with the mandatory provisions of Order 41, rule 1, Civil Procedure Code. It is true that no litigant should suffer for the mistake of the Court or its official, but that well-known maxim far from helping the appellant in this case, entries for the benefit of the respondents. If the official of the Court has been negligent in receiving the memorandum of appeal without a complete certified copy of the decree-sheet, the respondents have gained a valuable right and they cannot be deprived of it, nor made to suffer. In fact, in this case the mistake or omission in filing a complete certified copy of the decree-sheet with the memorandum of appeal was that of the official attached to the office of Advocate General and it was not a mistake committed by an official of this Court, nor can it be said that the official receiving the memorandum of appeal had contributed to that mistake. At best what can be urged against the official is that he was not vigilant and either because of rush of work or his failure to scrutinise the documents that accompanied the memorandum of appeal he had omitted to notice that copy of the decree-sheet had not been furnished with the memorandum of appeal. In fact I am of the opinion that the conduct of the Court official in receiving a memorandum of appeal, which is incomplete or otherwise incompetent or barred by time, cannot be made a ground for indulgence u/s 5 of the Limitation Act, when the defect or the mistake in preferring an incomplete appeal is attributable to the appellant himself or his agent. A different view would relieve a litigant of his duly to see that the requisite copies accompany the memorandum of appeal lead to startling results. Take the case where an official of the Court receives a memorandum of appeal which is barred by time and either on account of oversight or due to mistaken view of law he omits to point out the appeal is time barred and places it for admission before the Court and the Court, its attention not having been invited to the question of limitation in the absence of the opposite party, admits the appeal. Can it be said in such circumstances that because the official of this Court, either at the initial stage when the appeal was filed or at anytime thereafter before the appeal was admitted, had omitted to notice that the appeal was barred by time, the respondent is debarred from taking up the plea of limitation ? The authorities on this point warrant only one answer to this question, and that is in the negative.

I need not dwell on this point any further. I have referred to it merely because this argument was sought to be raised and the decision of the Jammu and Kashmir High Court was cited in support of it. So far as this case is concerned, for the reasons which I have stated earlier, since I am satisfied that the mistake in filing an incomplete certified copy of the decree-sheet along with the memorandum of appeal was not deliberate, but purely accidental and inadvertent, I am of the opinion that the delay in filing complete certified copy of the decree-sheet must be condoned. I accordingly accept the application and, overruling the preliminary objection on the question of limitation, hold that the appeal within time.