P. J. Lartius v. Board Of Revenue — 1984 DIGILAW 216 (ALL)

JUDGMENT K. P. Singh, J. 1. THIS writ petition has been directed against the judgment of Sri R. S. Verma, Member, Board of Revenue dated 27-10-1980 whereby revision no. 507 of 1977-78 and Reference No. 920 of 1977-78 Allahabad have been decided. The subject matter of the present writ petition is decision concerning revision no. 507 of 1977-78. 2. BRIEFLY facts giving rise to the present writ petition are that Beni Prasad filed a suit for declaration under section 229-B of the UP ZA and LR Act against the petitioner and others. The suit was decreed on 18-5-77. The defendant petitioner had filed an appeal against the judgment of the trial Court on 21-5-1977 without attaching the copy of the decree of the trial court with the memo of appeal. The decree of the trial court was prepared on 25-5-1977. It appears that on 8-8-1977 copy of the decree of the Trial court was applied and the same was filed before the first appellate court on 20th August, 1977. An application on 7-10-1977 was filed for treating the appeal against the decree and a prayer for condonation of delay was also made as is evident from Annexure 2' attached with the writ petition. The Additional Commissioner through his judgment dated 16-11-1977 dismissed the appeal as not maintainable and did not accept the contention that the word 'order' was written in the memo of appeal by clerical error. The revisional court in its judgment dated 27-10-1980 by placing reliance upon Rule 6-A of Order XX CPC confirmed the dismissal of appeal by the first appellate court. Aggrieved by the judgment of the revisional court the defendant petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner has contended before me that in the circumstances of the present case the learned Member Board of Revenue has patently erred in making the following observation ;- " ...............The question of filing the copy of the decree at a later stage and the question of condoning the delay in filing the copy of the decree does not arise at all. " 3. HE has emphasised that the petitioner-appellant was not at fault. The lawyer and the court official are really at fault, and in such a circumstances the above observation of the learned Member is patently erroneous. 4. " 3. HE has emphasised that the petitioner-appellant was not at fault. The lawyer and the court official are really at fault, and in such a circumstances the above observation of the learned Member is patently erroneous. 4. THE second contention raised on behalf of the petitioner before me is that when the decree of the trial court was filed before the first appellate court it was incumbent upon the appellate court and the revisional court to consider the circumstances involved in the present case regarding condonation of delay and they should have treated the appeal filed by the petitioner well within time and they should have decided the claims of the parties on merits, but they have failed to exercise jurisdiction in them by law by dismissing the petitioner's appeal as not maintainable. The learned counsel for the contesting opposite party has tried to refute the contentions raised on behalf of the petitioner. He has emphasised that the defendant-petitioner preferred an incompetent appeal knowingly and deliberately. Hence his appeal was rightly dismissed as not maintainable by the court concerned. It is not a fit case where interference should be made with the impugned judgments. He had placed reliance upon a large number of rulings-Kazmi Begum v. Zawwar Husain, 1954 RD 62, Maro Mst. v. Naubat Singh, 1955 RD 251; Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 , Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 ; Phool Chand v. Gopal Lal, AIR 1967 SC 1470 , State of West Bengal v. The Administrator Howrah Municipality, AIR 1972 SC 749 and has submitted that the appeal filed by the defendant petitioner was an incomptent appeal and that the petitioner was not at all entitled to condonation of delay in filing certified copy of the decree of the Trial Court. He has also referred to Order 41 Rule 1 CPC, Paragraphs 161 and 164 of U. P. Revenue Court Manual and Order 20 Rule 6-A of the Civil Procedure Code and has contended that in absence of the decree of the trial court the appeal was rightly dismissed as not maintainable. 5. I have considered the contentions raised on behalf of the parties. 5. I have considered the contentions raised on behalf of the parties. I find that the learned Member discussing the provisions of Order 20 Rule 6-A of CPC came to the conclusion that the appeal filed by the defendant petitioner was incompetent hence he confirmed the dismissal of the appeal by the first appellate court without appreciating the circumstance that at times in order to obtain stay of the execution the defendant petitioner prefers an appeal against the judgment of the Trial Court without a copy of the decree of the Trial court and such appeal is entertained by the first appellate court The revisional court has failed to address itself to this aspect of the matter. In the present case the defendant petitioner filed an appeal before the first appellate court and the appeal was admitted and later on an objection about want of decree was raised on behalf of the plaintiff opposite party. Thereafter a decree has been filed before the first appellate court, but the revisional court has not examined the question as to whether the delay in filing copy of the decree should be condoned in the circumstances of the present case or not. I think that the ends of justice demand that the judgment of the revisional court be quashed and the revisional court be asked to examine the question regarding condonation of delay in filing the certified copy of the decree of the Trial court before the first appellate court. It should also be asked to examine the question if the appeal preferred by the defendant petitioner was entertained at the first instance, what would be its effect on the petitioner's claim for condonation of delay in filing the certified copy of the decree. Before me a suggestion has been made that under the un-amended provisions of law appeal lay against the judgment only and if the defendant petitioner preferred appeal against the judgment of the trial court only without attaching the copy of the decree of the Trial court whether the defendant-petitioner is entitled to condonation of delay in filing copy of the decree or the laches on the part of the petitioner's counsel and the mistake on the part of the court official in entertaining the appeal at the first instance would entitle the petitioner for getting the requisite relief on merit or not. 6. 6. AFTER hearing the learned counsel for the parties at great length and after examining the rulings cited on behalf of the contesting opposite parties, I think that the revisional court is not quite correct that an appeal without a copy of the decree attached with the memo of appeal could not be filed unless the provisions of Order 20 Rule 6-A of the CPC were attracted. In my opinion the revisional court is not right in observing that the question of condoning the delay in filing the copy of the decree does not arise at all in the circumstances of the present case. In State of West Bengal v. The Administrator Howarah Municipality, AIR 1972 SC 749 cited by the learned counsel for the contesting opposite party it is evident that liberal constructions should be made so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. Wrong advice by counsel constitute sufficient cause for condonation of delay. 7. IN the present case the appeal was filed allegedly by a junior counsel and under the unamended provisions of law the appeal even lay against the judgment or final order, hence the observation of the revisional court about question of non-condonation of delay appears to me patently erroneous. 8. IN Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 their Lordships of the Supreme Court have observed as below 5- "...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 be thus clear that now 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 scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. 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 scrutinised 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 realised that it would be very unfair to penalise the party for the mistake committed by the trial court and 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. " In the present case it is evident that the defendant-petitioner's appeal was entertained by the office of the first appellate court and thereafter an objection for want of copy of the decree was raised by the plaintiff-opposite party. Thereafter the defendant-petitioner applied for certified copy of the decree and filed the same. As the revisional court has not examined the question of condonation of delay in filing the certified copy of the decree, I think it proper to quash the impugned judgment of the revisional court and ask the revisional court to examine the question in the light of the above rulings. 9. AS I am sending the case back to the revisional court for examining the question indicated above, I do not think necessary to deal with the other cases cited by the learned counsel for the contesting opposite party. It would be open to the contesting opposite party to canvass his view point bofore the revisional court hereafter. 10. IN the result the writ petition succeeds and the impugned judgment of the revisional court in revision no. 507 of 1977-78 is only quashed and the revisional court is directed to examine the claims of the parties in the light of the observations made above. Parties are directed to bear their own costs. Petition allowed.