P. SHANMUGAM v. KARNATAKA ELECTRICITY BOARD — 1990 DIGILAW 149 (KAR)

SWAMI, J. ( 1 ) THE office has raised an objectionthat the appeal is filed without the groundsand without being signed by the counsel. on going through the records, it is noticed that the appeal memo is as follows :"in the high court ofkarnataka at Bangaloreappeal undersection 4 of the Karnataka High Court Act,1961 writ appeal No. /1990 between : p. Shanmugam, major, junior assistant, o/o the executive engineer, (electrical), Karnataka electricity board, hunsur division, hunsur, Mysore district. . . . . appellant and; 1. Karnataka electricity board, cauvery bhavan, Bangalore-9, represented by its secretary. 2. The superintending engineer, electrical, Mysore circle, Mysore (keb ). 3. The executive engineer (ele), rural sub-division, Karnataka electricity board, Mysore. . . . respondents appellant herein most respectfully submits as follows : facts of the case r. 25 the appellants herein feels aggrieved by the rejection of the writ petition No. 9720/1982 by an order dated 11-1-90 made by a learned single judge of this Hon'ble court. Hence this appeal. . . . . . . . . 2. . . . . . . . " ( 2 ) FROM the aforesaid memorandum, it is clear that no grounds are raised. The appeal memo is not signed either by the appellant or his counsel. There is not even a memo of appearance, or the vakalath. Rule 27 of the writ proceedings rules 1977 (hereinafter referred to as the 'rules') is as follows :"27. Every writ appeal shall be preferred in the form of a memorandum signed by the appellant or his Advocate as per form No. V appended to these rules and shall be accompanied by a certified copy of the order appealed from, unless the court dispenses with the production of isuch copy. All the paragraphs therein shall be consecutively numbered and the memorandum shall contain the foliowing particulars : i) the name and description of the parties to the appeal and their respective ranks in the original proceedings and in appeal. Ii) the address for service of the parties und that of the appellant's Advocate at Bangalore. Iii) the date of the order and the number of the writ petition out of which the appeal arises. Iv) a concise statement of the facts which gave rise to the original proceedings and how they terminated. V) the grounds in support of the appeal. Iii) the date of the order and the number of the writ petition out of which the appeal arises. Iv) a concise statement of the facts which gave rise to the original proceedings and how they terminated. V) the grounds in support of the appeal. Vi) a list of authorities upon which the appellant relies together with a brief statement of the propositions'of law for which the authorities are relied on. " ( 3 ) THUS as per the aforesaid Rule, it is necessary for the appellant to state a concise statement of facts which gave rise to the original proceedings and as to how it terminated and then to state the grounds in support of the appeal and furnish the list of authorities which the appellant relies together with a brief statement of the proposition of law for which the authorities are relied upon. The ruie further makes it clear that the memorandum of appeal shall satisfy the aforesaid requirements and also the other requirements as stated in clauses (i) to (iii ). ( 4 ) NO doubt the aforesaid Rule is a Rule of procedure and it is to be interpreted so as to advance the ends of Justice and not to defeat it. We are also of the view that if the appeal memo is not signed, it does not result in invalidating the filing of the appeal and it will be a curable irregularity which can be permitted to be cured if an appropriate application is fiied seeking permission to sign the memorandum of appeal. But in a case where there are no facts stated and grounds raised in the memorandum of appeal, it cannot be considered to be an appeal. Even otherwise, no application is filed seeking permission to raise the grounds and sign the memorandum of appeal. ( 5 ) THE privy council in mt. Fakrunisa v moulvi izarus (a. i. r. 1921 p. c. 55 at page 56) while dealing with the duty of the appellant to show reasons for disturbing the judgment under appeal has observed thus :"in every appeal, it is incumbent upon the appellants to show some reason why the judgment appealed from should be disturbed; there must be some balance in their favour when the circumstances are considered justify the alteration of the judgment that stands. Their lordships are unable to find that this duty has been discharged. Their lordships are unable to find that this duty has been discharged. "the Supreme Court in thakur sukhpal singh v thakur kalyan singh and another (a. i. r. 1953 s. c, 146) has approved the aforesaid observations of the privy council and has held as follows:"with respect, we agree with this and hold that it is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate court can fully contain all the various matters mentioned in r. 31 o. xli. "thus, the appeal filed by the appellant cannot be considered to be a valid one, we have already pointed out that there is no application filed seeking permission to raise the grounds and sign the memorandum of appeal. We also notice that this undesirable and unwholesome practice appears to have been adopted in the other appeals also. In r. s. a. (fr) No. S773/ 1986, when this practice came to the notice of the court, a single judge of this court (ore of us - kasj) on 23-2-1987 held thus :"however, in the case of absence of the grounds of appeal, unless the appellant seeks amendment to the memorandum of appeal or permission to raise the grounds, there will not be a valid memorandum of appeal because order 41 Rule 1 (2) c. p. c specifically provides that the memorandum shall set-forth concisely and under distinct heads, the grounds of objections to the decree appealed from. Therefore, the appellant has also filed an application to amend the memorandum of appeal. "it was further observed thus :"in order to prevent filing of such appeals without the grounds and without signed by either the appellant or his counsel, it is necessary the office should immediately post such appeals for orders before the court without returning them for complying with the office objections because, the office cannot permit the appellant or the counsel appearing for the appellant to amend the memorandum of appeal without the order of the court. Further such a course will also have its salutary effect and may result in eliminating such filings as the matter will come up before the court. Further such a course will also have its salutary effect and may result in eliminating such filings as the matter will come up before the court. Consequently filing of such appeals will be reduced. " ( 6 ) IN spite of that, it is disappointing to notice that such appeals are still being filed. No doubt, the appeal has to be rejected as an invalid appeal inasmuch as it is no appeal in the eye of law, but we consider it necessary to protect the rights of the parties and to prevent miscarriage of justice. Therefore, we consider it necessary to reserve liberty to the appellant to present a fresh appeal in accordance with law. ( 7 ) FOR the reasons stated above, the appeal is rejected as an invalid appeal as it is no appeal in the eye of law. However, liberty is reserved to the appellant to present a fresh appeal in accordance with law. --- *** --- .