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2004 DIGILAW 957 (PNJ)

Gurmukh Singh v. Sulakhan Singh

2004-08-25

ASHUTOSH MOHUNTA

body2004
ORDER Ashutosh Mohunta, J. - This is an appeal against the judgment of the District Judge, Amritsar dated 9.4.1983, by which the appeal was dismissed on the ground that certified copy of the decree-sheet was not filed at the time of filing of the appeal. 2. A perusal of the impugned judgment shows that Sub Judge, IInd Class, Amritsar decreed the suit of the plaintiff-respondents for joint possession of the suit land vide his judgment dated 13.12.1980. The defendants filed an appeal before the District Judge, Amritsar. However, the same was to be filed only with a certified copy of the judgment of the Sub Judge, IInd Class, Amritsar, but the copy of the decree-sheet was not filed along with the appeal. In fact, uncertified copy of the decree-sheet duly attested by an Advocate was filed along with the appeal. The certified copy of the decree- sheet was put in after the limitation was over. The District Judge, Amritsar vide his impugned judgment dismissed the appeal as no application for exemption from putting in certified copy of the decree-sheet was filed along with the appeal. 3. Shri Munishwar Puri, learned counsel for the appellants has contended that the dismissal of the appeal is wholly illegal in view of the provisions of Order 41 Rule 1 with the proviso is reproduced as under :- "1. Form of appeal. - What to accompany memorandum. - (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoint in this behalf. The memorandum shall be accompanied by a copy of [judgment] : [Provided that where two or more suit have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by the judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment :] [Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct]." 4. A perusal of the aforementioned proviso clearly shows that an appeal could be filed along with the a true copy, duly attested by an Advocate. A perusal of the aforementioned proviso clearly shows that an appeal could be filed along with the a true copy, duly attested by an Advocate. It has been held in Iqbal Singh v. Sadhu Singh, 1983 PLR 321 that where certified copies of the judgment and decree along with memorandum of appeal are not filed, then the lower appellate Court should have allowed time on payment of costs instead of non-suiting the appellants straightaway. It has further been held by this Court in Maharshi Dayanand University v. Rajan Sahuja and others, 1996 PLJ 108 that the filing of certified copy of the decree and judgment is not obsolete even without a typed copy of the order and the appellate Court is entitled to entertain the appeal and pass appropriate orders. 5. The arguments of Shri Munishwar Puri are controverted by Shri N.S. Thind, counsel appearing for the respondents. 6. It is contended that no application under Section 5 of the Limitation Act was filed for condoning the delay, as the decree-sheet was filed after the limitation was over. 7. Having perused the judgments referred to above as well as the bare language of proviso to Rule 1 Order 41, it is clear that an appeal could be filed, even if the copy of the decree-sheet was duly attested by an Advocate. As per the proviso, filing of certified copy is not sine qua non. In the present case, as an attested copy was filed along with the appeal, therefore, there was complete compliance of Order 41 Rule 1. In view of the above, I set aside the impugned judgment dated 9.4.1983 passed by the District Judge, Amritsar and remit the case back to the District Judge, Amritsar for deciding the same on merits. As the case is very old, therefore, the same be decided within a period of four months from the date of receipt of a certified copy of this order. Parties shall appear before the District Judge, Amritsar on 28.9.2004. Order accordingly.