Kadimuk Islam Jamayath v. Assoo — 1996 DIGILAW 549 (KER)

Judgment :- P.K. Balasubramanyan, J. This revision is by defendant No. 2 in O.S.144 of 1986. The decree in O. S.144 of 1986 is one for partition. A preliminary decree was passed awarding the plaintiffs 1680 out of 2400 shares. Defendant No.1 was allotted 178 shares and defendant No. 2 522 shares. Defendant No. 3 was allotted 20 shares on payment of requisite court fee. There was also a direction in the preliminary decree that the second defendant who was a tenant in respect of the building situate in the plaint schedule property was entitled to get protection under the Kerala Buildings (Lease and Rent Control) Act, with an obligation to pay rent at the rate of Rs. 800 per month. 2. In proceedings for the passing of the final decree the Commissioner made two alternate proposals for division. Defendant No. 2 claimed that the property included in share list be allotted to him since he had no other building. But the court disallowed that prayer when it found that in that case owlet payable by defendant No. 2 to the other shares would be huge and it was not just and proper to accept such a division. The Court therefore, allotted the building to the plaintiffs and made payable substantial sum of money as owelty to the 2nd defendant. The final decree was passed on 16.6.1993. 3. It appears that defendant No. 2 filed an application for the certified copy of the final judgment and decree on 18.6.1993. Requisite copying sheets were called for on 1.1.1994 and they were produced on 5.1.1994. Copy was made ready on 3.2.1994 and 10.2.1994 was fixed as the date of appearance to receive the copy. But the copy was taken delivery of on 4.2.1994. 4. A petition for review was filed on behalf of the second defendant on 26.2.1994. That Review Petition was not accompanied by the certified copy of the final judgment and decree. Obviously it was also filed beyond one month of 16.6.1993, the date of the final decree. The court below dismissed the review petition on the ground that it was barred by limitation. That was by order dated 23.7.1994. Obviously there was also no application to condone the delay in filing the review petition. That order of the trial court was challenged before this Court in C.R.P. 1761 of 1994. The court below dismissed the review petition on the ground that it was barred by limitation. That was by order dated 23.7.1994. Obviously there was also no application to condone the delay in filing the review petition. That order of the trial court was challenged before this Court in C.R.P. 1761 of 1994. This Court by order dated 3.11.1994 directed the Court below to reconsider the application after giving the parties an opportunity of being heard and by order dated 31.1.1996 the Court below dismissed the application finding that even the certified copy of the decree obtained by the second defendant was not produced before the Court at least on the second occasion so as to enable the court to consider whether the application could be found to be in time or not. This order is again challenged before this court in this revision. 5. One curious fact that emerges in this case is that inspite of the application for review being filed beyond one month of the date of the final decree and inspite of his taking a definite stand that the application for review was within time going by the endorsements in the certified copy of the decree applied for and obtained by him, the second defendant did not produce the certified copy of the final decree applied for and obtained by him to demonstrate before the Court that the application for review was in time going by the endorsements therein. Even before this Court initially and even at the adjourned hearing the stand adopted was that it was not necessary to produce the certified copy of the judgment and decree while filing an application for review of the said judgment and decree, since what is insisted on is only the form of an appeal and not all the other trappings of the presentation of a Memorandum of Appeal. Assume that I agree with this submission in full, then also the application for review was beyond time because it was filed after about seven months of the passing of the final decree ad the application was not accompanied by a petition for condoning the delay in filing the review petition. Assume that I agree with this submission in full, then also the application for review was beyond time because it was filed after about seven months of the passing of the final decree ad the application was not accompanied by a petition for condoning the delay in filing the review petition. It appears to me that if the petitioner wants to take advantage of the certified copy of the judgment and decree produced with the petition for review by invoking S.12 of the Limitation Act and thereby to demonstrate that his application for review was within time, it was obligatory on the review petitioner to produce the certified copy of the judgment and decree alongwith the review petition. If his stand was that he could file an application for review even without production of the certified copies of the judgment and decree sought to be reviewed, then he has the obligation to file the application for review within one month of the passing of the final judgment and decree in terms of Art.124 of the Limitation Act. Without producing the certified copy of the judgment and decree, obviously the petitioner cannot seek to take advantage of S.12 of the Limitation Act. In other words; the petitioner cannot have it both ways. Having not produced the certified copy of the judgment and decree and having filed the review petition only after seven months of the date of the final decree, it behaved the petitioner to file an application for condoning the delay in making the application for review and to show that there was sufficient cause made out by him for getting the delay in filing the review condoned. At that stage, he cannot say that if one were to go by the certified copy applied for and obtained by him and which is not produced by him, his application would be within time, without giving the court an opportunity to verify whether his assertion is true or not. Therefore, in this case, even if one were to accept the stand adopted by the revision petitioner that it was not obligatory for him to produce the certified copy of the judgment and decree alongwith the petition for review, his application will have to be dismissed as barred by limitation on the ground that it was filed beyond 30 days of the final judgment and decree. 6. 6. Before me, learned counsel for the revision petitioner referred to O. XLVIIR. 3 to contend that it is only provided that the provisions as to form of preferring appeals would apply mutatis mutandis to applications for review and there is no insistence that the application for review should be accompanied by the certified copy of the judgment or order sought to be reviewed. He referred to Order XLI R.1(2) to point out that all that is needed is that the petition for review shall set forth concisely and under distinct heads the grounds of objection to the decree sought to be reviewed without any argument or narrative and that such grounds shall be numbered consecutively. But I am afraid that learned counsel is forgetting Order XLI R.1(1) of the Code. The marginal heading of Order XLI R.1 is 'Form of appeal'. Sub-r.(1) insists that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and it shall be accompanied by a copy of the decree appealed from the unless the appellate Court dispenses therewith the copy of the judgment on which it is founded. If O. XLI R.1 indicates the form of appeal and with reference to Order XLVII R.3 it is understood that the Memorandum of revision should also be in the form of an appeal, obviously the requirement of the production of the certified copy of the decree sought to be reviewed and unless dispensed with by the court copy of the judgment on which the decree is founded, have also to accompany the review petition. It is not possible to read O. XLI R.1(2) alone in isolation as sought to be-urged by counsel for the revision petitioner. O. XLI R.1 has to be read as a whole in conjunction with O. XLVII R.3 of the Code and so read I find no difficulty in holding that a petition for review should be accompanied by the certified copy of the decree or order sought to be reviewed and unless it is dispensed with by the Court copy of the judgment on which,the decree is founded. Learned counsel for the petitioner referred to the decision in Gangaram v. Behari Lai (AIR 1952 bhopal 39) in support of his contention that the certified copy of the judgment and decree sought to be reviewed need not be filed along with the petition for review. In that decision, all that is stated is that according to the practice of the Judicial Commissioner's Court at Bhopal production of judgment and decree or copy of order sought to be reviewed are not required to be filed alongwith the application for review. This is followed up by holding that an application for review filed within limitation is perfectly competent even if not accompanied with copies of judgment and decree and it was clarified that the provisions of clauses (2) and (3) of S.12 of the Limitation Act would be attracted only when copies of the judgment and decree or a copy of the order sought to be reviewed accompany the application for review. First of all, there is no contention before me that the practice in this State does not insist on the production of the certified copy of the judgment and decree sought to be reviewed. Even assuming that such a practice is permissible, this decision does not in any manner help the revision petitioner. The said decision emphasises that the benefit of S.12 of the Limitation Act would not be available to a petitioner in a petition for review if his petition for review is not accompanied by the certified copy of the judgment and decree sought to be reviewed. It further provides that if the application for review unaccompanied by judgment and decree sought to be reviewed is filed within 30 days of the judgment, the application could be treated as having been filed in time. In fact in that case the petition for review unaccompanied by the certified copies of the judgment and decree was filed within 30 days of the judgment and decree. This decision only emphasises my view expressed earlier that in a case where the petitioner takes the stand that the petition for review need not be accompanied by the certified copy of the judgment and decree, he has the obligation to file the petition for review within 30 days of the judgment sought to be reviewed in terms of Art.124 of the Limitation Act. 7. 7. Learned counsel for the revision petitioner could not submit before me that the accepted practice in this State and i n this court is to permit the filing of a review petition unaccompanied by the certified copies of the judgment and decree sought to be reviewed. In view of Order XL VIIR. 3 read with Order XLIR.1 of the Code of Civil Procedure, I do not think that such a practice even if it was there, could be accepted or upheld. At best, it could be said that while seeking a review of an order of an interlocutory nature, the application for review could be filed unaccompanied by the certified copy of the order taking into account the exigencies of the situation. That Rule could not be applied to a case where the review is sought of the final judgment and decree in the case. It is seen that this view has been adopted by the High Court of Bombay right from the year 1880 as seen from the decision of that Court in Adarji Edulji Golakhana v. Manikji Edulji LIZ TV Botia. 414) 8. In this case, though the petitioner filed a petition for review well beyond 30 days of the date of the final judgment and decree, it did not deem it necessary to file an application for condoning the delay in filing the review. Even when the plea of limitation was accepted by the trial court and the matter was remanded by this Court, directing the trial court to re-consider the question, the petitioner did not think it necessary to produce the certified copy of the judgment and decree applied for and obtained by it with a view to claim that he was entitled for the exclusion in terms of S.12 of the Limitation Act and his petition for review would be in time on that basis. It is in that context that I have to view the attempt of the petitioner to produce the certified copy of the decree in this court alongwith CMP 4686 of 1996 filed on 17.12.1996. I do not think that it will be proper for this court to entertain this application in view of the total absence of care exhibited by the petitioner in prosecuting its petition for review. 9. I do not think that it will be proper for this court to entertain this application in view of the total absence of care exhibited by the petitioner in prosecuting its petition for review. 9. The Court below has also noticed that even after a fresh opportunity was given by this court by remanding the proceeding to the court below, the petitioner did not choose to file even an application for condoning the delay in filing the petition for review. This attitude adopted by it also induces me to refuse to receive the copy of the final decree sought to be produced in this revision. I am therefore of the view that CMP 4686 of 1996 cannot be allowed. 10. Since the order of the Court below holding that the petition for review is out of time is seen to be correct, I do not find any reason to interfere with the order of the court below. The conduct of the petitioner thus far in prosecuting the petition for review also induces me not to exercise my jurisdiction in his favour under S.115 of the Code of Civil Procedure. I therefore, confirm the order of the Court below and dismiss this revision.