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Allahabad High Court · body

1990 DIGILAW 383 (ALL)

Bhola v. State

1990-04-10

M.M.GOPAL

body1990
JUDGMENT M.M. Gopal, Member - This is second appeal in which an application for condoning the delay has been filed. 2. Heard the learned counsels for the parties. 3. The facts of the case are that two second appeals have been filed on 3-4-1989 against the judgement dated 8-12-1988. These second appeals are numbered as 66 and 67. In second appeal no. 66 the certified copy of the judgement of the lower appellate court has been filed; but no certified copy of the judgement of the trial court or decree of the lower appellate court has been filed on that very date. In second appeal no. 67 no copies of judgement have been filed. 4. It is contended by the learned counsel for the appellant that in appeal no. 66 he was under the impression that only copy of the judgement of the lower appellate court is to be filed and the Judgement of the trial court has submerged in the appellate court judgement; hence there was no necessity for filing of the judgement of the trial court. It is also submitted that the copy of the decree of the lower appellate court has also not been filed due to some misunderstanding. It is also contended that in the second appeal no. 67 a prayer has been made that these two second appeals are connected hence there was no necessity to file copies of the Judgement in that appeal. Therefore, the certified copies of the Judgements were not filed. 5. The second appeals were presented before the Registrar of this very court. The defect was pointed out by the office then the party applied for the copy of decree on 12-5-1989 and also for the copy of the trial court Judgement. These copies were filed on 17-5-1989 (as the copies were prepared on 16-5-1989) in this court. The learned counsel for the other side has contended that in this case, there is no question of condoning the delay. Application under Section 5 of the Limitation Act has got no value. These copies were filed on 17-5-1989 (as the copies were prepared on 16-5-1989) in this court. The learned counsel for the other side has contended that in this case, there is no question of condoning the delay. Application under Section 5 of the Limitation Act has got no value. According to him relevant provisions, in respect of this, paras 161 and 163 of Revenue Court Manual, are that every appeal should be accompanied with certified copies of Judgement and decree of the lower appellate court or revisional court and also with the certified copies of Judgement of other courts subordinate to that court; that means all the certified copies of Judgements and decree of the court against which the second appeal has been filed should have been filed along with the memo of second appeal. It is further contended by him that the period of limitation can only be extended if an application for the copy has been filed within the period of limitation in the court concerned, then the period of limitation can be extended beyond 90 days and if it is not done so, no question of condoning the delay or applying Section 5 of the Limitation Act arises. 6. He has also cited ruling of this court reported in R.D. 1955 p. 418 : Nathua v. Ram Singh. In this case other two rulings have also been cited of this court which were followed. It is contended by the learned counsel if any other opinion has to be taken by this Court other than the view taken in the aforesaid ruling, the matter should be referred to a larger bench to lay down proper law. 7. No doubt the points raised by the learned counsel are based on procedural rules and the ruling cited by him is also the application of those rules, but too much technical view has been taken by the courts below and since 1955 the interpretation of such procedural rules has changed a lot and too much technical consideration has been pitted against the party. All rules of court are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose. All rules of court are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose. The court would not be technical with the matter of this magnitude that the course of justice may be stopped; but a liberal view should be taken and the courts are respected only because it is capable to remove such technical objection so that justice may be done and the parties may be given an opportunity to put up their ease on merits. 8. Hon'ble Supreme Court has Shown its displeasure on such court that the courts below did not follows these message of making a justifiable liberal approach in the matters instituted in the court. The provisions are adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life purpose for the existence of the institution of courts collector Land Acquisition, Anantnag v. Katiji, 1987 (SC) 1353. 9. Hence, there are technically some defects in filing the appeal and those defects were removed latter on or due to ignorance of counsel the party did not file some papers. The appeal should not be thrown out on that very ground. The ignorance of counsel cannot be allowed to defeat the purpose of a party Hence in my opinion the documents i.e the copies of Judgement and decrees were filed later on and due to ignorance they could not be filled earlier; as such it cannot be said that no benefit should be given to them where the copy for the decree or Judgement applied within period of limitation or not the provisions of procedure should also not be applied in such a way that the court of justice may be jeopardised. The copies filed later on shall be deemed to he filed within time and even if for the sake of argument they are taken to be filled within time and even if for the sake of argument they are taken to be filed beyond time the delay in such case should be condoned. 10. The copies filed later on shall be deemed to he filed within time and even if for the sake of argument they are taken to be filled within time and even if for the sake of argument they are taken to be filed beyond time the delay in such case should be condoned. 10. I, therefore, hold that the objection raised by the learned counsel though technically correct should not be applied in the present case; the procedure should not put an end the course of justice but it has a means to achieve justice. 11. I, therefore, condone the delay and treat both the second appeals properly filed the application from the opposite side that the second appeals were not properly field and are barred by time is rejected. Fix 12-7-1990 for final hearing.