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1962 DIGILAW 51 (KER)

Mammad Haji v. Kunhamina

1962-02-16

M.MADHAVAN NAIR

body1962
Judgment :- 1. A question of some nicety has been raised by the Office, and that is whether the copy of the impugned order containing more than 2000 words produced along with the Civil Revision Petition should necessarily be a printed copy. The office note is that it ought to be a printed copy, but the copy produced is typewritten. 2. Counsel for the petitioner relies on Chapter IX of the Rules of the High Court of Kerala dated the 22nd June 1960, especially R.73 thereof which reads; "In Civil Revision Petitions the following papers shall be printed or typed at the cost of the petitioner: (a) the judgment or order sought to be revised; and where that judgment or order is passed in appeal the judgment or order of the court of first instance; (b) the memorandum of revision; and (c) such other papers as the parties desire to have printed and have within the period prescribed by R.86 applied to be included in the record." and submits that the copy of the judgment produced along with the Civil Revision Petition being type-written there is no defect in the institution, and a printed copy cannot be insisted by the Office. 3. Chapter IX of the Rules of the High Court of Kerala deals with the preparation of paper-books for the purpose of hearing the appeals, as is clear from the R.75, 85 and 98 thereof. It has nothing to do with the institution of appeals and revision petitions which is dealt with in Chapter IV of the Rules. Counsel read R.31 of the Rules of the High Court of Kerala. It certainly relates to the institution of Civil Revision Petitions. It only says that "a certified copy" of the decree, judgment or order concerned should be produced along with the petition. It does not provide the form in which the certified copy should be. Guidance has therefore to be sought in other rules on the matter. 4. Before leaving Chapter IX of the Rules of the High Court, I must observe that the expression "printed or typed" in R.70 to 73 does not mean that any document mentioned therein may be either printed or typewritten. Generalibus specialia derogant is a rule of general application. Guidance has therefore to be sought in other rules on the matter. 4. Before leaving Chapter IX of the Rules of the High Court, I must observe that the expression "printed or typed" in R.70 to 73 does not mean that any document mentioned therein may be either printed or typewritten. Generalibus specialia derogant is a rule of general application. The above said rules must therefore mean only that wherever there is a specific rule requiring a document produced in Court to be printed, it shall be in such form only; but if there be no such specific rule, it may be either printed of typewritten. For specific rules prescribing printed copies, see (1) R.1, Order XLI C.P.C.; (2) R.1, Order XLII C.P.C.; (3) R.1, Order XLIIA C.P.C; (4) R.2, Order XLIII C.P.C.; (5) R.228 of the Civil Rules of Practice (Travancore-Cochin); and (6) R.135, sub-rules (1) and (5), of the Civil Rules of Practice (Madras). 5. It is pertinent to note that for the institution of appeals in the Madras High Court, R.2 of 0.41 A, R.1 of O.41B, R.2 of O.42, and R.2 of O.43 C.P.C., as amended in Madras, require printed copies of judgments to be filed along with the memorandum of appeals, irrespective of the length of the judgments concerned. R.135 of the Madras Civil Rules of Practice (See Civil Procedure Code published by R. Satyamurti Ayyar, P. 378) provides: "135. (1). When a copy of judgment or Order passed by a Civil Court, is applied for by a party to the suit or proceeding for the purpose of appealing against it to the District or Subordinate Judge's Court, the copy shall be printed provided the length of the judgment or order (excluding the names of parties and witnesses and the list of exhibits) exceeds 700 words. In cases where the length of the judgment or order does not exceed 700 wards the production of a printed copy is not compulsory. (5) When a copy of the judgment or order passed by an appellant court is applied for by a party to the suit, proceeding or appeal for the purpose of appealing it to the High Court, such copies shall likewise printed." 6. The Travancore-Cochin Civil Rules of Practice also, in its R.228, provides: "228. (5) When a copy of the judgment or order passed by an appellant court is applied for by a party to the suit, proceeding or appeal for the purpose of appealing it to the High Court, such copies shall likewise printed." 6. The Travancore-Cochin Civil Rules of Practice also, in its R.228, provides: "228. Printing of judgments or orders when compulsory:- When a copy of a judgment or order passed by a court is applied for by a party to a suit or proceeding for the purpose of appealing against it to the District Court or the High Court, the copy shall be printed provided the length of the judgment or order excluding the names of the parties and witnesses and the list of exhibits is in excess of 700 words. In cases where the length of the judgement or order does not exceed 700 words, printing is not compulsory." Under S.54 of the States Re-organisation Act, in cases where specific provisions have not been made in the Act, "the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State (which for Kerala is defined in S.2 (c) of the Act, to be Travancore-Cochin) shall, with the necessary modifications apply in relation to the High Court for a new State (Kerala)." It then follows that in the matter of the procedure regarding institution of appeals in this court for which no provision has been made in Part V of the States Reorganisation Act; the rules of the Travancore-Cochin High Court are to be followed until other provisions are made by this Court. It is happy to note that the rules made by the Travancore-Cochin High Court were less stringent than those made by the Madras High Court, but it is indeed regrettable to find that in this High Court a loose practice has developed of instituting appeals with manuscript copies of impugned judgments containing thousands of words. Several instances have come to my notice where, though printed copies of judgments of the original Courts are available and have beep filed in the lower appellate Courts, only hardly, legible manuscript copies of the same were filed in this Court in Second Appeals. Levity in practice cannot go farther than this. 7. Several instances have come to my notice where, though printed copies of judgments of the original Courts are available and have beep filed in the lower appellate Courts, only hardly, legible manuscript copies of the same were filed in this Court in Second Appeals. Levity in practice cannot go farther than this. 7. The expression "for the purpose of appealing to the High Court" is not the same as "for the purpose of preferring an appeal in the High Court". In my view, the former is wider in its purview than the latter. 'Appeal' as a noun denotes, a particular, form of proceeding in a higher tribunal; but the word, in its verbal sense denotes resorting to a higher tribunal for deliverance from a decision of the lower tribunal. A motion in revision under S.115 C.P.C., is for relief against an order causing grievance to the petitioner. Moving a petition for revision of an order of a subordinate Court is also a form of appealing to the High Court. I would therefore hold that the provisions in R.228 of the 'Travancore-Cochin Civil Rules of Practice and R.135 (5) of the Madras Civil Rules of Practice apply when copies of judgments or orders are sought for the purpose of moving Revision Petitions against them. 8. It is imperative, under the present rules, that an appeal or revision before this High Court against a judgment or order containing more than 700 words in its body should be accompanied by a printed copy of the impugned judgment or Order. The Office is therefore right in their note. As the necessity for production of a printed copy of the impugned order along with the revision petition was being doubted by several at the Bar, and since the copy produced in the present case is legibly type-written, I dispense this case from the necessity of procuring another 'printed' copy of the order. The Office will therefore treat the present as a special case in which a particular order is made by the Court and accept the Civil Revision Petition to the file.