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1965 DIGILAW 86 (DEL)

MUNICIPAL CORPORATION OF DELHI v. MOTI LAL

1965-10-08

S.K.KAPUR

body1965
S. K. Kapur ( 1 ) THIS appeal is directed against the order of the Additional Senior Subordinate Judge, Delhi, with enhanced powers, dated 30th May, 1963. A preliminary objection has been taken on behalf of the respondents that the appeal is barred by time. ( 2 ) AN application for obtaining certified copies of the judgment and decree of the Additional Senior Subordinate Judge was made on 6 th June, 1963. and it was ready for delivery on 17th July 1963 The appeal was filed in this Court on 8th Octomber, 1963. On the same day it was returned by the office with the remarks that a certified copy of the trial Court s order had not been filed and the affidavit filed was not attested. The appeal was required to be reflied within a week. In spite of that the appellant did not apply for a certified copy of the trial Court s Judgment till 29-10-1963 and the same was ready for delivery on 3-12-1963. The appeal was refiled three days thereafter, that is, on 6-12-1967. The learned counsel for the respondents submits that when the appeal was filed on 8-10-19263, 130 days had expired and afr taking the time spent for obtaining -the certified copy of the Appeal Court s judgment, the total number of days available ford filing the appeal would be 132 daps. Consequently if only the appeal Court s judgment and decree had to be filed with the appeal the appeal would be within time. He, however, refers to the provisions of rule 2 as added in Punjab to Order 42, Civil Procedure, Code, and submits that the appeal was not validly presented on 8. 11. 1963 unaccompanied as it was by the judgment of the Court of first instance. He further submits that the time spent in obtaining a certified copy of the judgment of the Court of first instance cannot be taken into consideration since even the application for the certified copy was made after the expiry of the period of limitation. According to the learned counsel the appeal was validly presented only on 6-12-1963. He further submits that the time spent in obtaining a certified copy of the judgment of the Court of first instance cannot be taken into consideration since even the application for the certified copy was made after the expiry of the period of limitation. According to the learned counsel the appeal was validly presented only on 6-12-1963. In support of the proposition that the appeal can be taken to have been validly presented only when it is accompanied by a copy of the judgment of the Court of first instance and of the copies of the decree and judgment appealed against the learned counsel relies on:- (1) Dyala and others v. Hiru and others. (2) Mathra v. Ram Singh. (3) Naul v. Mula. , and (4) Custodian, Evacuee Property v. Prabhu Dayalin S. A. 0. No. 95-D of 1965, decided by me on 24. 8. 1965, I accepted the contention which is now sought to be put forth by the. learned counsel for the respondents regarding the valid presentation of the appeal. In that view the appeal would he clearly barred by time. ( 3 ) MR. Tara Chand Brijmohan Lal has raised two-fold contentions. He says that all the aforesaid judgments are no longer good law in view of the decision of their Lordships of the Supreme Court in Jagat Dhish v. Jawahar Lal. His contention is that in the said judgment the Supreme Court has held that an appeal even if not accompanied by a copy of the decree would be a validly presented appeal. The learned counsel says that if that were not the decision their Lordships would have dismissed the appeal and directed the party to file a fresh one. I do not agree. In at case a copy of the decree had not been filed with the appeal because the same had not been drawn up by the trial Court. In those circumstances their Lordships said that the only fair and rational course 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 those circumstances their Lordships said that the only fair and rational course 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. As a matter of fact, their Lordships in terms said :- "if at the time when the appeal is preferred TO 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. "there is, therefore, no force in this contention and it must be held that an appeal presented without a certified a copy of the judgment of the Court of the first instance would not be a validly presented appeal. ( 4 ) THE learned counsel for the appellant then submits that since the appeal had been admitted by this Court and notice issued it should assumed that the Court had dispensed with the filing of the judgment of the Court of first instance, which it was competent to do under the said rule 2 of Order 42, Civil Procedure Code. He relies for this proposition on Agent G. I. P. Ry. Co. v. Jasrup Shrinath and Labha Singh v. Basant Singh. In, Jasrup Shrinath s case, a copy of the judgment appealed against liad not been filed as required by Order 41, rule 1 , Civil Procedure Code, and the memorandum of appeal stated that the copy of the judgment would be supplied later. In these circumstances it was held :- "* * * * as the appeals were admitted on presentation notice being ordered to issue to the respondents, it must be taken that the Court dispensed with the copy of judgment. In any case this is a matter between the Court and the appellant. In these circumstances it was held :- "* * * * as the appeals were admitted on presentation notice being ordered to issue to the respondents, it must be taken that the Court dispensed with the copy of judgment. In any case this is a matter between the Court and the appellant. "a similar argument was raised in Labha Singh s case Addision, J. quoted the above passage from Jasrup Shrinath s case and observed :- "the last words are important, and I would hold that in the peculiar circumstances of the present case, when the appellant thought he had fully complied with the provisions of the law, a dispensation should be granted to him as regards the first part of the judgment which has, as a matter of fact, been printed in the paper book. Each case of this kind must be decided on its own merits. And the first part of the judgment been attacked in appeal, it might have been different and when the law is better known such a concession might not so easily be granted. "it would, therefore, appear that the learned counsel for the appellant is not right in the saying that the judgment in Jasrup Shrinath s case was approved by the Lahore High Court regarding the presumption of dispensation with the filing of the copy of the judgment in case the appeal was admitted and notice issued to tin" respondent. The Lahore High Court only dispensed with the filing of the first part of the judgment. If the broad proposition sought to be laid by the learned counsel for the appellant were to be accepted it would mean that whenever an appeal is not properly scrutinised by the office and or the non-filing of any of the required copies of the judgment or decree escape notice amounts to dispensation of the judgments which may not have been filed. I am not prepared to subscribe to that rule. After all the appeals it the stage of admission are heard ex parte and the Court never directs its attention to the question of dispensing with the filling of any cerified copies. Of course, if the court detects that a certain copy had not been filed it may in its discretion either dismiss the appeal or dispense with the filing of the copy, or allow time for filing the same. Of course, if the court detects that a certain copy had not been filed it may in its discretion either dismiss the appeal or dispense with the filing of the copy, or allow time for filing the same. ( 5 ) LASTLY, the learned counsel for the appellant submits that it is a fit case where I should exercise my discretion now by either dispensing with the filing of the copy of the judgment of the Court of first instance or condoning the delay. The facts of case, however, do not entitle the learned counsel for the appellant to that concession. The appeal was returned by the office on 8-10-1963 inter alia because a certified copy of Court of first instance had not been filed. Still no application was made till 29-10-1963. No ground has been shown for condonation of that delay. Again the copy was ready on 3-12-1963, and yet it was filed in this Court on 6-12-1963, when his preliminary objection was raised by the learned counsel for the respondents. The learned counsel for the appellant took time till 30th to look into that question. Still no application has been made in this Court either for condonation of the delay or for dispensing with the filing of the copy. Having regard to the aforesaid circumstances I see no ground either to condone the delay or to dispense with the filing of the copy of the judgment. In the circurntances, it must be held that the appeal was not validly presented: till 6-12-1963 and is barred by time. The same is, therefore, dismissed but the parties will bear their own costs.