P. J. Lartius v. Beni Prasad — 1984 DIGILAW 502 (ALL)

JUDGMENT R.S. Verma, Member. - The plaintiff Beni Prasad is a poor Harijan. On April 23, 1975 he filed a suit under Section 229-B, U.P.Z.A. and L.R. Act against E.R. Frank, Nagar Mahapalika Allahabad and U.P. State. He claimed that he had become Sirdar of plot No. 21, area 2 Bighas 17 Biswas of Muirabad, Allahabad by virtue of his long adverse possession. In the copy of Khatauni 1382-84F., filed alongwith the plaint E.R. rank defendant No.1 was recorded as Sirdar. 2. On August 19, 1976 P.J. Lartius applied to the court for being impleaded as a party to the suit on the ground that he was in adverse possession of the land in suit for more than 25 years. He did not file any document to show his possession over the land in suit in any year, and yet the learned trial court ordered his impleadement. Thus P.J. Lartius was added as defendant No. 4 in the suit. As filed a written statement to the effect that he was in adverse possession of land in suit for 34-40 years, that since 1381 F., the plaintiff Beni Prasad was also in possession of the land in suit alongwith him, that he is the sole occupant of the land in suit and has become its Sirdar. His pleadings are self-contradictory in so far as in Para 10 of his written statement he admits the joint possession of the plaintiff alongwith him while in paras 9 and 17 of the written Statement he asserts his sole possession. 3. The State of U.P. contested the suit on the ground that the plaintiff has no interest in the land in suit and that the disputed plot had vested in the State of U.P. 4. The original defendant E.R. Frank was substituted by his son E.O. Frank, who contested the suit on the grounds that he is the tenant of the land in suit and tat his attorney E.p. Clofs looks after the suit-Plots on his behalf. 5. The parties adduced oral and documentary evidence in the case P.W. 1 Smt. Nanka Devi stated about the possession of the plaintiff. She is a school teacher and is an independent and reliable witness. P.W. 2 is Raghubash Lal Peon. He stated about the possession of the plaintiff and said that the house of the plaintiff stands on the land in suit. She is a school teacher and is an independent and reliable witness. P.W. 2 is Raghubash Lal Peon. He stated about the possession of the plaintiff and said that the house of the plaintiff stands on the land in suit. He is peon in Muirabad trust. Nothing material was elicited in his cross-examination to discredit his testimony. P.W. 3 Gopinath stated about the possession of the plaintiff. He is aged 76 years and was formerly a clerk of a Vakil. He is also an independent and reliable witness. P.W. 4 Beni Prasad plaintiff state on oath his case. He stood the test of cross-examination well. 6. The Plaintiff has filled rent receipt dated July 31, 1950 August 31, 1957, July 31, 1952, August 31, 1961, which are all in the name of E.R. Frank. He has filed land revenue receipts 1375 F., land revenue receipt No. 41/140636 dated May, 24, 1970, and land revenue receipt 1382F. 7. D.W. 1 A. Eliot stated on oath that P.J. Lartius defendant No. 4 was in possession of the land in suit for the last 34-35 years. He never saw the defendant No. 4 himself cultivating the disputed plot. D.W. 2 Lucus Limbert corroborated the statement of D.W.1. He has admitted that the house of the plaintiff Beni Prasad stands on the land in suit. He further said that he never saw P.J. Lartius Cultivating the land in suit alongwith Beni Prasad Plaintiff. D.W.3.P.J. Lartius defendant No.4 has stated on oath his case. He stated that the plaintiff Beni Prasad is also cultivating the land in suit for the last 3-4 Years along with him and that Beni Prasad is his servant and labourer as far as cultivation of the land is concerned. He has admitted that the house of Beni Prasad plaintiff stand on the land in suit. 8. Two witnesses were examined on behalf of the defendant No. 1 D.W. 1 is Masiuddin who has said that he is cultivating the land in suit on behalf of Clofus. He admits that the house of Jhagru is situated on the land in suit. Jhagru was the father of the plaintiff. He does not know whether the plaintiff is in possession of the land in suit or not. D.W. 2 is E.P. Clofus, who says that he gets the land cultivated on behalf of the defendant No.1. He admits that the house of Jhagru is situated on the land in suit. Jhagru was the father of the plaintiff. He does not know whether the plaintiff is in possession of the land in suit or not. D.W. 2 is E.P. Clofus, who says that he gets the land cultivated on behalf of the defendant No.1. He has said that the rent and land revenue was paid by the plaintiff on his behalf. He has said that the plaintiff on his behalf. He has said that the plaintiff unlawfully lives in the house which stands on the land is suit. He further said that the plaintiff forcibly constructed this house. 9. The defendants did not file any document in support of their cases. 10. After the discussing this evidence the learned trial court decreed the plaintiffs' suit on May 18, 1977 and held that plaintiff alone was in possession of this land and that the defendants had no concern with it. 11. Against that order and decree of the court the recorded tenant did not appeal. The State of U.P. also did not file any appeal. It was P.J. Lartius defendant No. 4 who took the copy of the judgment on July 20, 1977 and filed an appeal against the order of the trial court on August 21, 1977. On August 20, 1977 defendant-appellant executed a Vakalatnama in favour of Shri S. Nazim Hussain Advocate and Shri Mohammad Abid Advocate. That Vakalatnama was however signed on that date by Sri Mohammad Abid Advocate alone, Shri Mohammad Abid Advocate was the defendant's counsel even in the trial court as is evidence form his Vakalatnama dated August 19, 1976. The appeal was admitted on august 21, 1977 and the appellant took stay order on the same day. On August 8, 1977 the plaintiff-respondent filed an application in the court that the appeal was incompetent because it had not been preferred against the decree passed by trial court and it was prayed that appeal is dismissed as incompetent. Thus the appellant P.J. Lartius applied for copy of decree on August 8, 1977 and got it on the same day, but filed it is the court of August 20, 1977. An application under Section 5, Limitation Act was also given and it was prayed that the delay in filing it may be condoned. Thus the appellant P.J. Lartius applied for copy of decree on August 8, 1977 and got it on the same day, but filed it is the court of August 20, 1977. An application under Section 5, Limitation Act was also given and it was prayed that the delay in filing it may be condoned. On October 7, 1977 the appellant P.J. Lartius moved an application that in the memo of appeal it was inadvertently mentioned that the appeal was against order and prayed that the appeal may be treated as appeal against the decree may be treated as appeal against the decree also. The learned Additional Commissioner on November 16, 1977 held that the appeal had been filed only against the order of the trial court and not against its decree and hence the appeal was incompetent and so he dismissed the appeal. 12. On February 9, 1978 P.J. Lartius filed a revision against the order of the learned Additional Commissioner. That revision was dismissed by me on October 27, 1980. 13. P.J. Lartius then filed a writ petition in the Allahabad High Court. That writ petition was allowed by the learned High Court on August 9, 1984. My order in revisions No. 507 of 1977-78 was quashed and that revision alone was sent back to this court for reconsideration. The learned High Court gave a direction to this court to examine the claims of the parties in the light of observations made above. That writ petition was allowed by the learned High Court on August 9, 1984. My order in revisions No. 507 of 1977-78 was quashed and that revision alone was sent back to this court for reconsideration. The learned High Court gave a direction to this court to examine the claims of the parties in the light of observations made above. The following Observation were made by the learned High Court:(1) the revisional could to be asked to examine the question regarding condonation of delay in find the certified copy of the decree of the trial court before the first appellate court, (2) 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 affect on the petitioner's claim for condonation of delaying filing the certified copy of the order (3) under the unamended 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 decree of the trial court whether the defendant-petitioner is entitled to condonation to delay in filing copy of the decree, (4) whether the laches on the part of the petitioner's counsel would entitle the petitioner for getting the requisite relief on merit or not, (5) whether the mistake on the part of the court official in entertaining the appeal at the first instance would entitle petitioner for getting the requisite relief, (6) "In the present case the appeal was filed allegedly by a junior counsel and under the unamended provisions of the appeal even lay against the judgment and final order, hence the observation of the revisional court about question of non-condonation of delay appears to me patently erroneous, and (7) " I think that the revisional court is not quite correct that an appeal without a copy of the decree attached with the memo of the appeal could not be filed unless the provisions of order 22 rules 6-A of the C.P.C. were attracted". I will, as directed, consider all these points one by one. 14. The first point regarding condonation of delay in filing the copy of the trial court's decree is the central point of this case and this point of this case and this point in present in almost all other points mentioned by the learned High Court. I will, as directed, consider all these points one by one. 14. The first point regarding condonation of delay in filing the copy of the trial court's decree is the central point of this case and this point of this case and this point in present in almost all other points mentioned by the learned High Court. Condonation of delaying as exceptional Provisions and it has been enacted to meet certain situate so that needy and deserving persons may not be deprived from claiming justice. This provision does not give a litigant any absolute right. In order to take this benefit a litigant must prove his bona fides and he must show to the court that he not only needs it, but that he de-servers it too. The purpose of law is to give justice needy and deserving persons, and for that end the courts law and justice have been given ample powers by the legislature. Where justice requires, the courts have power to grant it; and to achieve that the courts can set aside many wooden technicalities. But the primary consideration will be whether the application deserves it or not, and that consideration necessitate entering into fact and circumstance of each particular case. As principle of law and ideals of justice, evolved and pronounced in a particular case, may not necessarily be applicable in a different set of facts. That is why Earl of Halsbury L.C. in his celebrated judgment Quinn v. Leathes, (1901) A.C. 495 said that, "...... every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generalities of the expressions which may be found there, are not intended to be expositions of the whole law but governed and qualified by the petitioner facts of the case in which such expressions are to be found. 15. In this context we must keep in mind as to who is the applicant who is claiming justice and a special advantage of condonation of delay in this case. He is, in the instant case, P.J. Lartius. He is not a recorded tenant of the land in suit. He has not claimed any right from the recorded tenant. He is not recorded as trespasser or occupant. He has never paid rent or land revenue of the land in suit. He is, in the instant case, P.J. Lartius. He is not a recorded tenant of the land in suit. He has not claimed any right from the recorded tenant. He is not recorded as trespasser or occupant. He has never paid rent or land revenue of the land in suit. He claimed interest in the dispute plot on the basis of his long possession, but in this written statement itself he admitted that the plaintiff was also in possession over the land in suit alongwith him. He had not been made a party to the suit. He himself came forward to be impleaded. He could not show to the trail court as to how he was necessary or proper party in the suit. The fact is that he should not have been impleaded as a party, but the learned trial court, without giving any reason, ordered his impleadment. His possession was disproved by evidence. Thus he has absolutely no interest in the land in suit. The recorded tenant or his descendant did not file any appeal against he order of the trial court. The only person, that is P.J. Lartius, who has no semblance of title or interest in the land in suit filed the appeal. filed the revision and ultimately field the writ petition. In Paras 2 to 5 of this judgment I have discussed the case and evidence of the Parties in detail in order to see and to show it that P.J. Lartius has any semblance of right or interest in the land in suit. He has none, and yet he is the only person who is actively perusing these cases and claiming justice. Abstract principles of justice appear to be impartial, and taking advantage of its abstract nature needy and deserving persons, as well as person desirous of frustrating real justice, invoke the sublime and abstract principle of justice. The court of law must impartially dispense justice to all who claim it, but it does not mean that the court will shut its eye and carry its impartiality to such an extent as to be obvious of the fact whether the claimant deserve justice or not. The courts are not expected to give justice only to one party and deny it to the other side. The courts are not expected to give justice only to one party and deny it to the other side. I have minutely gone through the evidence on record to find out whether the applicant P.J. Lartius can have any title or interest in the land in suit, and I have found out that he has no case at all. He is not even rank trespasser nor is in possession over the land in suit in any capacity. In fact he is a rank outsider, who has entered the fray to deny a poor man his rightful interest, to harass that poor man and to extract something for himself by damaging the poor plaintiff to various courts and for long periods. Such a person is not a person who deserves discretionary advantages from a court law. 16. P.J. Lartius revisionist is not an ignorant, illiterate villager. he is an educated person and is resident of Allahabad city. He Knows English. He has said that he was working in the Government Press. He took pension in 1974. He has said that even before 1974 he did not go to his duty in the Government Press and that for seventeen-eighteen years he was fighting out his case regarding his government service. He also fought out of a mutation case in respect of the land in suit. He has studied up to High School. He has experience of fighting out his cases. I do not agree with the submission of his learned counsel that he was an ignorant litigant, at the mercy of his inexperienced lawyer, and that he did not know the copy of the trial court's decree was required to be attached with the memo of appeal. So I do not agree with his learned counsels' argument that he was not a fault and that the delay in filing the copy of decree should be condoned because of his ignorance. 17. He field the copy of the decree on August 10, 1977, that is much after the period of limitation. The reasons for delay were mentioned by him in his accompanying affidavit. 17. He field the copy of the decree on August 10, 1977, that is much after the period of limitation. The reasons for delay were mentioned by him in his accompanying affidavit. He averred that he applied for the copy for judgment and decree of August 20, 1977, that the copy of judgment was supplied to him but he was told that the copy of decree will be given to him later on, that he filed the appeal through a junior lawyer Shri Mohammad Abid who perhaps under the impression of unamended law field the appeal against the final order, that under the advice of his senior counsel he applied for the copy of decree on August 8, 1977 and got it on the same date. None of these explanations is convincing. There is no reliable evidence that he had applied for the copy of the decree on August 20, 1977 and there is no reliable material on the record to show that he was told that the copy of the decree will be supplied to him later on. Even if his allegations are believed, he never tried to obtain that copy of decree. This shows his extreme negligence. The record shows that applied for copy of decree only on August 8, 1977, that is, mush beyond the period of limitation. He got the copy on the same day but yet he did not file it in the court and waited for 12 more days. He has not even attempted to give any explanation as to why he did not file it on August 8, 1977 or on August 9, 1977 and waited till August 20, 1977. Here again he was grossly negligent. Where question of limitation is involved the law is that delay of each day should be explained. The appellant P.J. Lartius was throughout negligent. He is not entitled to any indulgence at all. I am of the firm view that there is absolutely no reason to condone the delay in filing the copy of decree and this application for condonation of delay must be rejected. 18. The second question posed by the learned High Court is that 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. 18. The second question posed by the learned High Court is that 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. The learned High Court referred to AIR 1961 S.C. 832 and has quoted some passages from the ruling. In my earlier judgment dated October 27, 1980 (which was quashed by the learned High Court) I had also referred to this very ruling and had made more extensive questions from that ruling. The learned High Court quoted the following passage from the said ruling of the Supreme Court, and that is, "It would be thus 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 on 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 out 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 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 case". Shri Ram Charan Dass learned Advocate of the defendant-revisionist has stressed that according to Article 141 of the Constitution of India". The law declared by the Supreme Court shall be binding on all courts within the territory of India", and that observations and obiter-dicta of the Supreme Court are also binging on all Indian Courts. Shri Ram Charan Dass learned Advocate of the defendant-revisionist has stressed that according to Article 141 of the Constitution of India". The law declared by the Supreme Court shall be binding on all courts within the territory of India", and that observations and obiter-dicta of the Supreme Court are also binging on all Indian Courts. Shir B.B. Paul learned Advocate of the plaintiff-respondent has argued that the Supreme Court itself has said in the said ruling that 'no hard and fact rule of general applicability can be laid down for dealing with appeals defectively field under Order 41, Rule 1 and that' appropriate orders will have to be passed having regard to the circumstances of each case. "Shri B.B. Paul, learned Advocate has said that the learned High Court, in this case, did not deal with the observations of the Supreme Court as far as observations were in favour of the plaintiff-respondents. Learned counsel Shri B.B. Paul also argued that the learned High Court made only a one-sided approach, did not deal with the rulings cited by him, did not focus its attention on respective cases of the parties and did not look into the fact that by the machinations of P.J. Lartius (defendant-petitioner), who is an educated and influential person and who has absolutely no case at all, a poor Harijan, who has got a decree in his favour on the basis of strong and unimpeachable evidence, is suffering injustice and is being deprived from enjoying hid property. Shri B.B. Paul, learned Advocate has therefore argued that the whole case and its circumstances may be taken into account by this court and that all the rulings cited by him be discussed and the matter of condonation of delay may be decided in its proper perspective. I have already discussed in detail, in the preceding paragraphs of this judgment, the respective claims of the parties and some very material circumstances pointed out by Shri B.B. Paul, learned Advocate. Now I will deal with the rulings cited by him. 19. AIR 1961 S.C. 832 is the main ruling referred to by the the learned referred to by the learned High Court in its judgment. The defendant-respondents learned counsel Shri R.C. Dass, Advocate has greatly relied on this very ruling. I had extensively dealt with this ruling in my previous judgment dated October 27, 1980. In that ruling it was observed that. The defendant-respondents learned counsel Shri R.C. Dass, Advocate has greatly relied on this very ruling. I had extensively dealt with this ruling in my previous judgment dated October 27, 1980. In that ruling it was observed that. "The requirement that certified copy of the decree should be filed alongwith the memorandum of appeal is mandatory, and in absence of the decree the filing of the appeal would be incomplete, defective and incompetent.... If at the time when the appeal is preferred a decree has already been drawn up 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." In 1981 R.J. 148 it was held by this Board that provisions of Rule 161, U.P. Revenue Court Manual are mandatory and filing of copy of decree, along with copy of judgment, is mandatory. In 1954 R.D. 63 this Board held that where the copy of the decree and judgment of the trial court has not been applied for within 50 days prescribed for filing second appeal, the second appeal must be held not to have been filed properly. The other rulings cited by Shri B.B. Paul, learned Advocate are regarding amendment application flied after the period of limitation. They are not relevant at this stage. The only ruling on the point is AIR 1961 S.C. 832 . In that case the appellant had applied for copy of judgment and decree both on March 24, 1954. As the decree has not been drawn up, no copy of decree was therefore, supplied to the appellant. So the appeal was filed the appeal in that case with copy of judgment and the bill of costs to show that he had also applied for the copy of decree on August 3, 1954 the Assistant Registrar of the High Court returned the memo of appeal pointing out that the presentation was defective. Thereafter on August 16, 1954 the appellant's counsel filled the appeal with an endorsement that a memo of costs alone had been prepared by the trial court and on decree had been drawn up, and as the appeal should be held to be properly filed. The High Court admitted the appeal and allowed the appellant to file the copy of the decree when it was prepared. The High Court admitted the appeal and allowed the appellant to file the copy of the decree when it was prepared. That order of the High Court was challenged in the Supreme Court. So that was a case where the officer of the trial court had been negligent and had not prepared a decree. In the High Court also the appeal was admitted without noticing the defect that the memo of appeal had not been accompanied by a copy of the decree. In that case (1) the appellant had applied within time for a copy of decree, (2) he had attached a bill of costs with the memo of appeal to show that he did really for copy of decree within the period of limitation, (3) the office of the trail court was negligent and had not prepared the decree and (4) the officer of the High Court was also not careful. That was a case in which the appellant was not at all in fault. The fault lay elsewhere and in these circumstances the High Court and the Supreme Court both gave just and proper relief to the appellant. That position was no doubt usual. In the case before us the position is wholly different. The judgment of the trial court was pronounced on May 18, 1977. The decree was prepared on May 25, 1977. The appellant P.J. Lartius applied for copy of judgment on May 20, 1977 and got it on the same day. He did not apply for copy of decree till August 8, 1977 and it on the same day. By that time the period of limitation had already expired. Even when he got the copy of decree on August 8, 1977 he did not file it in the court till August 20, 1977 and he gave no explanation for the delay from August 7, 1977 to Aug 20, 1977. The explanation of delay from May 21, 1977 (the date of filing the appeal) to August 8, 1977 when he applied for copy of the decree has not been found by me to be satisfactory. I have held that delay in filing the copy does not deserve condonation. 20. Now if incompetent appeal is filed and it strongly admitted by over-sight or by other reasons, this will not create an estoppel against the court or the statue or the decree-holder. I have held that delay in filing the copy does not deserve condonation. 20. Now if incompetent appeal is filed and it strongly admitted by over-sight or by other reasons, this will not create an estoppel against the court or the statue or the decree-holder. The decree-holder cannot be deprived by a party or by the court of a valuable right which has accrued to him. If the appellant gives an application of delay in filing the decree, the court can condone the delay when the appellant proves his bona fide and shows sufficient reasons for condonation the delay. In such cases the courts of law should adopt a liberal attitude and see that an innocent appellant is not penalised. But, as the Supreme Court has itself held in AIR 1961 S.C. 832 , no hard and fast rule can be made, and each case must be decided on merits. The fact remains that an incompetent appeal reaming incompetent even if it is admitted by the appellate court due to any reason. In the instant case also the appeal filed by P.J. Lartius was incompetent. It deserved dismissal because his bona fides have not been proved. He applied for copy of the decree after the period of limitation and could not give any sufficient reason for the delay. He had been extremely negligent and did not deserve any indulgence from the court. The wrong admission of an incompetent appeal, in itself, cannot be a ground for condonation of delay in filing a copy of trial court's decree. 21. One fact must also be mentioned at this place. The appellant has applied for copy of judment only, and had not applied for copy of judgment only, and had not applied for copy of decree within time. That is why he had appealed only against the order date may 13, 1977 passed by R.S. Kaushik S.D.O. Chail, Allahabad. He had not filed any appeal against the decree. These words are written just below the cause title. In the prayed clause also it was prayed that the order date May 18, 1977 passed by the court bellow 'be set aside. He had not prayed for setting aside the decree. The appellant was in a haste to obtain a stay order from the appellant court. He could get a stay only if he filed a competent appeal. In the prayed clause also it was prayed that the order date May 18, 1977 passed by the court bellow 'be set aside. He had not prayed for setting aside the decree. The appellant was in a haste to obtain a stay order from the appellant court. He could get a stay only if he filed a competent appeal. For finding of a competent appeal copy of trial courts decree was necessary. That decree had not been prepared by August 20, 1977. It was prepared only on August 25, 1977. The appellant was not in a mood to wait for a few days and so the only option for him, for succeeding in obtaining a stay order, was to take a risk, bluff the court in admitting the appeal by showing that it was not an appeal against the decree but was an appeal against final order only. Had the appellant and his counsel mentioned in the memo of appeal that it was a appeal against decree there was a possibility that the court staff should have insisted on his filing a copy of the decree also, and in that case the appellant would have been frustrated in obtaining the stay order of the every date. It is quite another matter that even after obtaining the stay order of August 2, 1977 he could not succeed in his design by reason of the fact that on May 20, 1977 the name of the plaintiff was entered in the Khatauni by order of the trial court. The appellant then filed an application in the Ist appellate court for taking contempt proceedings against the S.D.O. So the mention of the word 'order and the omission of the word 'decree' in the memo of appeal was not so innocent as was subsequently tried to be made out by appellant's counsel. There was a method in all this and this was done with a purpose of gaining some undue advantages. Thus the appellant filed an appeal against the order only and not against decree. Such an appeal was inherently incompetent and could not be curred. In this context I had observed in my earlier judgment dated October 27, 1980 that the question of condonation of delay did not arise. Thus the appellant filed an appeal against the order only and not against decree. Such an appeal was inherently incompetent and could not be curred. In this context I had observed in my earlier judgment dated October 27, 1980 that the question of condonation of delay did not arise. However after that judgment of mine was quashed by the learned High Court I considered the question of consolidation of delay, as directed by the High court, and my opinion is that P.J. Lartius does not at all deserve condonation of delay. 22. The third direction of the High Court is that under unamended 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 decree? The learned High Court has not specified what it has termed as 'amended provision of law'. I fail to understand as to what is that unamended provision of law'. If C.P.C. (Amendment) Act, 1976 is meant by the learned High Court, there was always a mandatory provision is in Order 11, Rule 1 that the memo of appeal must be accompanied by a copy of decree. Even as far back as 1961 the supreme Court held in AIR 1961 S.C. 832 , that, "The requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in absence of the decree the filing of the appeal would be incomplete, defective, and incompetent". If the learned High Court meant Revenue Court Manual we find that para 161 of that has not been amended. Here we may refer to 1955 R.D. 251 Division Bench, Board of Revenue when it was held that, "under para 161, Revenue Court Manual, every memorandum of appeal has to be accompanied by copies not only of the decree of order appealed form but also of the judgments and orders of the subordinate courts". So as far as I know there was never an unamended provisions of the law that appeal lay against the judgment only". Secondly the first appeal was field by P.J. Lartius on August 21, 1977. So as far as I know there was never an unamended provisions of the law that appeal lay against the judgment only". Secondly the first appeal was field by P.J. Lartius on August 21, 1977. The Code of Civil Procedure (Amendment) Act, 1976 came into force on July 10, 1976 when it received the assent the president of the India on September 9, 1976 and was published in the Gazette of India Extra Ordinary Part II Sec. 1 dated September 10, 1976. Thus when the appeal was field by P.J. Lartius on August 21, 1977 the amended C.P.C. has already come in force, As there was never a provision of law, either before or after the amended C.P.C. of 1976 that an appeal lay only against the judgment only, no question remains to be considered whether there the appellant as entitled to any condonation of delay on this ground. 23. The next direction given by the learned High Court is to consider whether the laches on the part of the petitioner would entitle the petitioner for getting the requisite relief on merit or not. It is said that the appellants counsel was responsible for not filing the copy of the decree and that the was responsible for not mentioning in the memo of appeal that it was also against the decree. I do not agree with this. The appellant had not applied for copy of decree within time. The appellant himself has pressed his counsel to get a stay order from the appellate court as soon as possible. The decree has not been prepared by August 20, 1977 when application for copy of judgment was given. The appellant was not prepared to wait for a few days. The decree was drawn up within seven days of the judgment but the appellant was not in a mood to wait and he must have goaded his counsel to obtain a stay order immediately. His learned counsel did his best and succeeded in getting the stay order on May 21, 1977. But this success could only be achieved by concealing the fact that the appeal was against decree also. There was a well planned method in this and it is not a case of laches on the part of a counsel. His learned counsel did his best and succeeded in getting the stay order on May 21, 1977. But this success could only be achieved by concealing the fact that the appeal was against decree also. There was a well planned method in this and it is not a case of laches on the part of a counsel. It was a case in which an educated client used the services of his counsel in getting an advantage of obtaining a stay order on the very day when the appeal was filed. Having obtained an undue advantage by suppressing material facts from the court, the appellant in not trying to run down his learned counsel because it not suits him to do so. I am of the view that the learned counsel for the appellant acted on his instructions and that there was no laches on the part of his counsel. The appellant P.J. Lartius is alone responsible for the haste in filing the appeal even through it was incompetent and he alone was responsible in not taking the copy of the trial court's decree within the period of limitation. The appellant P.J. Lortius is not entitled to any condonation of delay on this ground. Having actively used his learned counsel in one way at the initial state with the sole purpose of getting an undue advantage, the appellant is trying to passively used the same learned counsel in another way in order order to get another undue advantage. The learned counsel for P.J. Lartius has cited AIR 1972 S.C. 749 in which it was held that "The advice given by the lawyer to file application under Article 227, in our opinion, in also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause". The head not of that ruling is "Perusal (pursuit) of different remedy then appeal on wrong advice of counsel constitutes sufficient cause within Section 9. That ruling does not apply in the circumstances of this particular case because it is not a case in which a litigant pursued a wrong course of action of the advice of his counsel. Here it is a case in which a counsel deliberately committed some mistakes on the instructions of this client, who was in haste in filing an appeal even though the decree had not been drawn up by then? Here it is a case in which a counsel deliberately committed some mistakes on the instructions of this client, who was in haste in filing an appeal even though the decree had not been drawn up by then? Can it be presumed that the counsel for the petitioner was in any was interested in filing the appeal with such hot haste? It was the appellant who was interested in doing so, as he was eager to obtain a stay order from the appellant court without any delay. His learned counsel is not at fault. He acted on the instruction of this client. There was no laches on the part of appellant's counsel and the appellant is not entitled to condonation of delay on this ground. 24. The fifth point for consideration is whether the mistake on the part of the court official in entertaining the appeal at the first instance would entitle the petitioner in getting the requisite relief. The mistake, if any, of the court of official cannot be taken advantage of by the appellant, because the initial and basis mistake was committed by the appellant and his counsel. A further fact in that the appellant's mistake was the cause of the officials mistake. This mistake was committed by the appellant deliberately in order to get a stay order from the appellate court and that also on the every day on which the appeal was field. The file discloses that the appellant filed the appeal on May 21, 1977, got the officer report on the same day, presented the appeal before the court on that very day and obtained stay order,took a copy of that order the same day and immediately served it on the presiding Officer of the trial court. The planing made by the appeal was immaculate. The official had no time to thoroughly scrutinise the memo of appeal. The mistake, if any, of the court official was a minor one, and the appellant cannot get any benefit of this minor mistake of the court official, because the mistake was caused by his own grave mistake. Moreover I do not think that court official committed any mistake in the circumstances of the case. Mention was made in the memo of the appeal that the appeal was against order; it was not mentioned that it was also against decree. Moreover I do not think that court official committed any mistake in the circumstances of the case. Mention was made in the memo of the appeal that the appeal was against order; it was not mentioned that it was also against decree. Had it been mentioned in the memo that the appeal was against decree, the court official would have checked whether the copy of decree was attached or not, but as the memo mentioned only appeal against order and the copy of the judgment was attached with the memo the court official and nothing to do further. This written representation in the memo of appeal was made by the appellant himself, and the court official had no reason reason to doubt this written representation. Hence in my view the court official did not commit any mistake at all in the peculiar circumstances of this case. The appellant and his learned counsel committed initial, basic and grave mistakes in presentation of a defective appeal and the appellant must reap the consequences of his rash and calculated action. I, therefore hold that the appellant cannot get a condonation is filing the copy of decree beyond the period of limitation. 25. The sixth point concerns with the following observation of the learned High Court, "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 and final order, and hence the observation of the revisional court about question of non-condonation of delay appears to me partially erroneous. Shir B.B. Paul, the learned counsel for the plaintiff respondent has vehemently challenged this observation of the learned High Court. Shri Mohammad Abid Advocate appeared for the defendant-appellant P.J. Lartius in the trial court. He single-handedly conducted the trial court's proceedings on behalf of his client and he did not work efficiently. The defendant-appellant was satisfied with his work and he entrusted the first appeal to him. In the first appellate court his learned counsel got the appeal admitted on the very day of presentation and also secured for his client a stay order and served that order on the trial court. On August 20, 1977 that very learned counsel Shri Mohammad Abid filed an application in the first appellate court to draw contempt of court proceedings against the S.D.O. Chail and other Government servants. On August 20, 1977 that very learned counsel Shri Mohammad Abid filed an application in the first appellate court to draw contempt of court proceedings against the S.D.O. Chail and other Government servants. Shri Mohammad Abid Advocate did excellent work for the appellant. Now there is no evidence on the record that Shri Mohammad Abid Advocate is a junior. Even if he is comparatively junior to other Advocates, what difference does this fact make? He was chosen by the appellant himself. Can it be said that junior Advocates are incompetent ones has the bar council of U.P. Or the High Court of Allahabad made any rule or regulation that junior Advocate will not do casework unless they work under the supervision of a senior counsel? Are junior Advocates entitled in law or equity to any special indulgence from the court? Advocates of how many years would be considered as junior? Is it a client, and specially an educated client,like the appellant P.J. Lartius, is entitle to an indulgence from the court if he on his won accord, engages a junior lawyer? It is fair part of client to accept the goo services of his chosen counsel and repudiate him afterwards when some mistake or blunder is detected by the court of the other side in thee conduct of the case by his lawyer, and in the interest of the other party not to be taken into consideration by the court though the other party may be completely innocent and fair in all the proceedings? whether a decree-Holder will not be allowed to take advantage of law on the ground that the other party had engaged a junior law. Yer? That would be a dangerous unjust proposition because unscrupulous litigants, having money power, muscle power or organisation power, will exploit this for the purposes of protracting litigation, harassment of weak and poor adversaries and taking undue advantages from the finer feelings about justice and fair trial. No discrimination can be made between senior and junior Advocates. No special advantage can be, in law or in practice, given to junior advocates without disturbing concepts of fair play and justice. Hence engagement by a litigant, of a junior lawyer will not entitle the litigant to any special advantage. The opposite party cannot be put in disadvantage on such sentimental grounds. No special advantage can be, in law or in practice, given to junior advocates without disturbing concepts of fair play and justice. Hence engagement by a litigant, of a junior lawyer will not entitle the litigant to any special advantage. The opposite party cannot be put in disadvantage on such sentimental grounds. The only consideration before a court of law should be dispensation of justice, and for doing that the interest of the order side also. In this case I think that no undue importance should be given to the fact that P.J. Lartius had engaged as allegedly junior counsel. He is an educated my and resident of a city like Allahabad. He has money and resources. Thous he had absolutely no right in the land in suit he entered the arena of litigation of his own accord and dragged the poor plaintiff, whom he himself stated on oath his servant and labourer. He has engaged good lawyers in every court. Shri Mohammad Abid Advocate is also a good lawyer as his performance with would disclose. It was the appellant who chose him. He must be knowing that Shir Mohammad Abid Advocate was comparatively junior but the engaged him with this eyes open. Now he cannot be allowed to case aspersion of Shri Mohammad Abid Advocate. I have earlier pointed out in detail that Shri Mohammad Abid Advocate acted on the instructions of his client and performed all his legal duties with speed. The applications and affidavits drafted by him show his competence and maturity. His drafting of the appeal and its filing in the court was not due to his ignorance and competence, but it was deliberate and result-oriented. The appellant P.J. Lartius is not entitled to get condonation of delay on this ground. Regarding the second part of the observation of the learned High Court that under the unamended provisions of 'law' the appeal even lay against the judgment and final order ..... The learned High Court has not referred to that 'unamended provision of law' nor it has pointed to any statute, ruling, rule or regulation. The law is clear on the point. The best law is statute law. The learned High Court has not referred to that 'unamended provision of law' nor it has pointed to any statute, ruling, rule or regulation. The law is clear on the point. The best law is statute law. Order 41, Rule 1 C.P.C. lays down that "every appeal shall be preferred in the form of a pleader memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from (and unless the appellate court disposes therewith) of the judgment or which it is founded. This was the law even before C.P.C. (Amendment) Act, 1976. Under this order and rule the court had no power to dispense with the copy of the decree. In AIR 1961 S.C. 832 it has been laid down that, "the requirement that certified copy of the decree should be filed alongwith the memorandum of appeal is mandatory, and in absence of the decree the filing of the appeal would be in complete, defective and incompetent". Para 161 of Revenue Court Manual also makes a mandatory provision about it and in 1955 R.D. 251 Division Bench the Board of Revenue has held the copy of decree must be filed along with the memo of appeal. Hence it cannot be said that there could be any justification for the appellant P.J. Lartius for not filing the copy of decree along with the appeal. The appellant cannot get any benefit from this. 26. The learned High Court further observed that, 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 provision of Order 22 Rule 6-A of the C.P.C. were attracted. There is a mistake in the copy of the judgment of the learned High Court. I had not referred to Order 22, Rule 6-A C.P.C. not to Order 20, Rule 6-A, C.P.C. An appeal without a copy of decree attached with the memo of appeal cannot be filed as is evidence from Order 22, Rule 6-A C.P.C. but to order decision AIR 1961 S.C. 852 and para 161 of U.P. Revenue Court Manual. Rule 6-A was inserted in Order XX of the C.P.C. by C.P.C. (Amendment) Act, 1976. Rule 6-A was inserted in Order XX of the C.P.C. by C.P.C. (Amendment) Act, 1976. Sub-rule 2 of the Rule 6-A lays down that 'Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and it any case, with in fifteen days from the date on which the judgment is pronounced, but where the decree is not drawn up within the time aforesaid the court shall if requested by a party desirous of appealing against he decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon. (a) an appeal may be prepared against the decree without filing a copy of the degree and in such a case the last paragraph of the judgment, shall, for the purposes of rule 1 of Order XLI, be treated as the decree; and ......" This Rule 6-A of Order XX C.P.C. is an exception to Rule 1 of Order XLI C.P.C. The Supreme Court in AIR 1961 S.C. 832 while interpretation Order 41, Rule 1 C.P.C. laid down that an appeal, without copy of decree attached with the memo of appeal, is incomplete, defective and incomplete. Such an appeal cannot be admitted. This ruling of the Supreme Court was binding on all courts in India according to Article 141 of the Constitution of India and so it 141 of the Constitution of India and so it was bound to cause hardship to litigants in cases a court failed in its duly to draw up decree within time. Therefore the legislature, in its wisdom Order XX C.P.C. The Rule 6-A should not have been inserted in Order XX but in Order XLI Rule 1 C.P.C. because it logically fits there. However this Rule 6-A of Order XX C.P.C. is an exception to Rule 1 of Order 41 C.P.C. In this content I had held in my earlier judgment dated October 27, 1980 that an appeal cannot be filed without a copy of decree unless the matter come within in ambit of Order XX, Rule 6-A(2) C.P.C. no further clarification is needed. 27. 27. Shri R.C. Dass, the learned counsel for P.J. Lartius lastly argued that the learned Additional Commissioner had committed an illegality by not allowing his clients application dated October 7, 1977 in which it was prayed that he appeal by treated as appeal against decree because the appeal had been filed challenging the order and decree of the trial court but by mistake only the word 'order' was mentioned in the memo of appeal. It was further prayed that the memo of appeal be read as appeal against the decree dated August 18, 1977 and in the relief clause the word 'order' be read as 'decree'. This was not an amendment application. The prayer was unusual in so far as it prayed that written words in the memo of the read as other words. That is, 'order' my be read as 'decree'. The prayer could not have been granted. If it was an amendment application, though it was not, it could not be allowed because it was given beyond the period of limitation and it attempted to turn an incompetent appeal into a competent one. By that time the plaintiff decree holder had, got a vested interest in the decree which had had not been challenged within the period of limitation. Even if such an application was to be allowed it could not make the appear competent. because copy of decree was not attached with the memo and because application for supply of copy of decree was given by the appellant must beyond prayer cannot be added by means of amendment vide AIR 1947 Privy Counsel 100 are AIR 1967 S.C. 98. Instead of moving an amendment application the appellant made a vague prayer that a certain material written word in the memo should be read as another material word. Such a vague application was purposefully given because the appellant's learned counsel must be knowing that the belated amendment application was bound to fail in view of the established law on the point. No order of the court was needed on such an application and the learned Additional Commissioner did the right thing by ignoring this vague application and by not passing a formal order on this application. The appellant ever appeared in the court with clean hands. No order of the court was needed on such an application and the learned Additional Commissioner did the right thing by ignoring this vague application and by not passing a formal order on this application. The appellant ever appeared in the court with clean hands. No illegality was committed by the learned Additional Commissioner in the exercise of this jurisdiction and no case of revisional interference has been made out. 28. Before parting with the case want to make some observations. I detest too technical an interpretation of any law. The purpose of law is to do justice. Where justice demand the court should always adopt a liberal attitude. But justice does not operate in a void. Its dispensation depends on attendant facts and circumstances of particular situation. So fine principles and sublime sentiments regarding justice cannot be divorced from the facts of a particular case. The court is required to take an integrated view of the whole matter, and the case and view of other side must also be taken into account. I have tried to look in the whole case not only as a revisional court, but also as a trial court or a first appellant court. In my view, based upon the evidence on the record. P.J. Lartius revisionist has no case at all. He has no rights in the land in suit. He is a rank outsider. Due to his money power and proneness towards this litigation he may succeed in delaying the proceedings and in driving the poor plaintiff decree holder to distraction but no court of law, on the evidence on record, can give a finding that he has any rights in the land in suit. The oral and documentary evidence is so overwhelmingly against him. Law and justice are both against him. It is really unfortunate that he has succeeded in protracting this litigation for nine years and prevented the decree holder from enjoying his lawful property. 29. The revision has no force in it. Therefore it is dismissed with costs and Rs. 100/- as counsel's fee.