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1987 DIGILAW 41 (ORI)

CHINTAMANI MALLIK v. KHETRAMANI DIBYA

1987-01-28

S.C.MOHAPATRA

body1987
S. C. MOHAPATRA, J. ( 1 ) DEFENDANT's appeal in the court of the District Judge, Balasore, having been dismissed as barred by limitation, the order is challenged in this civil revision. ( 2 ) ORIGINALLY a Miscellaneous Appeal was filed by the petitioner which was converted to Second Appeal on prayer and lastly by order of the Court the same has been converted to Civil Revision in view of the decision of the Full Bench of this court reported in (1984) 58 Cut LT 248 (Ainthu Charan Parida v. Sitaram Jayanarayan Firm ). ( 3 ) HAVING lost in the trial court, defendant filed an application under O. 44, R. 1, C. P. C. accompanied by the memorandum of appeal which was presented before the Registrar of the court of District Judge on 4-10-1982 and was registered as Misc. Case No. 117 of 1982. While the matter was being examined by the office, an application was filed on 14-12-1982. Accepting the application wrongly presented before the Registrar, the learned District Judge made endorsement about the registration and the application was registered as Misc. Case No. 145 of 1982. This application was sent for enquiry to the court of Munsif, Balasore. The learned Munsif issued notice to the parties and after enquiry submitted his report on the basis of which the application was allowed on 11-2-1983 and the appeal was registered as Misc. Appeal No. 12 of 1983. In the meantime the certified copy obtained earlier was filed on 22-12-1982. ( 4 ) THE learned District Judge while considering the question of limitation of the appeal has dismissed the same on the ground that there has not been a bona fide prosecution and the appellant was negligent not only in presenting the appeal before a wrong officer but also in not filing the certified copy of the judgement and the decree. ( 5 ) THE short question for consideration is whether the appellant was prosecuting bona fide the appeal or was negligent, as has been found by the learned District Judge. ( 6 ) THERE is no dispute that the judgement of the trial court sought to be impugned was passed on 30th July, 1982. The application for certified copy was made on 31-7-1982 to be obtained on 26-8-1982. ( 6 ) THERE is no dispute that the judgement of the trial court sought to be impugned was passed on 30th July, 1982. The application for certified copy was made on 31-7-1982 to be obtained on 26-8-1982. Calculating the period available for the appeal to be presented within thirty days, the appeal should have been filed on or before 24-9-1982. The same period is available for an application under O. 44, R. 1, C. P. C. also. The application along with the memorandum of appeal was, however, presented on 4-10-1982 before the Registrar. Before any final order was passed, the same was presented again before the District Judge on 14-12-1982 to condone the delay in presentation. By that time, the certified copy of the judgement and the decree had already been filed. ( 7 ) AS I find from this case, the procedure was not taken care of either by the officers of the court or by the learned counsel for the petitioner in the appellate court. The plaintiff opposite parties were also not vigilant in raising objection in right time. To resume the facts, an application under O. 44, R. 1, C. P. C. was filed on 4-10-1982 and again presented on 14-12-1982. The learned Munsif gave notice to the parties and made the enquiry and on the basis of his report the application was allowed. When the application was presented before the Registrar of the appellate court no objection was taken to such presentation. The appellant engaged a lawyer to guide him and relying upon the lawyer prosecuted the litigation. In such circumstances, a party should not have been blamed for negligence on account of the mistake of the lawyer. If the matter would have been there the principle of considering whether senior lawyer of standing would commit the same mistake would arise. The Registrar at the time of receiving the application also did not raise any objection. If that would have been the position, possibly on the same day it could have been presented in the right forum. When it was presented on 14-12-1982, without considering the question of limitation, the learned District Judge sent the matter for enquiry. After registering it again, the question of limitation and defect in presentation should have been considered at that stage. The plaintiffs had notice of the enquiry. When it was presented on 14-12-1982, without considering the question of limitation, the learned District Judge sent the matter for enquiry. After registering it again, the question of limitation and defect in presentation should have been considered at that stage. The plaintiffs had notice of the enquiry. They did not raise any objection, even after appearance in the appellate court, on receipt of notice of appeal that the application has been wrongly allowed. Thus, the delay in presenting the application under O. 44 R. 1, C. P. C. which was the same in presentation of the appeal has been condoned unnoticed by the court as well as by the respondent. After allowing the application which was delayed, the ground of limitation cannot be taken to reject the appeal since the same consideration would arise in both the matters. That would lead to inconsistency. Accordingly. I am satisfied that the appellate court has exercised jurisdiction with material irregularity in dismissing the appeal as barred by limitation. ( 8 ) ON merits also I would come to the same conclusion. The appellate court has given much weight to the non-filing of the certified copy of the judgement and the decree along with the application under O. 44, R. 1, C. P. C. The application that was allowed was taken to he presented on 14-12-1982. On that date the certified copy of the judgement and the decree was available having been filed on 22-10-1982. Therefore, taking into consideration the date of presentation of the application to be the date of filing of the appeal, the certified copy being available this would not be a ground to be utilised against the appellant. Non-filing of the certified copy of the judgement and the decree on 4-10-1982 could have been made a ground The language of O. 44, R. 1, C. P. C. indicates that the application is to be accompanied by a memorandum of appeal. It further says that the same procedure as regards suits would be followed. It does not provide that the same procedure as in respect of presentation of appeals would also be followed. It further says that the same procedure as regards suits would be followed. It does not provide that the same procedure as in respect of presentation of appeals would also be followed. There is no direct decision of this Court that the memorandum of appeal should be accompanied by the judgement and the decree, though interpretation would lead to the conclusion that the certified copy of the judgement and the decree is also to be filed as provided under O. 44, R. 1, C. P. C. Since the date of presentation of the application would be the date of filing of the appeal, the certified copy had been obtained. The lawyer did not file the same. A person well-versed in law having committed mistake in the procedure, a party who relied upon such lawyer should not be blamed attributing negligence to him. The mistake committed by the party may be for selecting a wrong lawyer. That should not be a ground to penalise the party. ( 9 ) THE plaintiffs have no responsibility for all these defects, although they could have pointed out these defects, much earlier. Dismissal of the appeal has given a right to the plaintiffs. By setting aside the appellate order, their right is being taken away. This prejudice can be mitigated in case the petitioner pays a cost of Rs. 300/- (three hundred) to the plaintiffs-opposite parties within three months from today failing which the order dismissing the appeal as barred by limitation shall stand confirmed without any further reference to Bench. Since both parties have appeared in this Court, I direct them to appear before the appellate court on 29-4-1987 on which date on being satisfied that the amount of costs, as directed, has been paid within the stipulated period, the appeal shall be continued in accordance with law. ( 10 ) IN the result, the civil revision is allowed, subject to the aforesaid conditions. No costs. Revision allowed. .