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2006 DIGILAW 102 (KER)

Arumughan v. Kumaran Ezhuthassan

2006-02-16

K.T.SANKARAN

body2006
Judgment :- The appellant filed O.S.No.186 of 1982 on the file of the Munsiff’s Court Alathur against the respondent for declaration of title and injunction. The plaintiff claimed to be an assignee of the cultivating tenant. The claim of tenancy was disputed by the defendant and therefore the matter was referred to the Land Triburnal under section 125 (3) of the Kerala Land Reforms Act. The Land Tribunal by order dated 08.10.1987 found against the claim of tenancy made by the plaintiff. Accepting that finding, the trial court dismissed the suit by the judgment and decree dated 20.12.1988. 2. Challenging the judgment and decree of the trial court, the plaintiff filed A.S.No.18 of 1989 on the file of the District court Palakkad. The appeal was filed on 06.02.1989. Along with the appeal an application – I.A.117 of 1989 was filed for numbering the appeal, accepting the certified copy of the judgment of the trial court. In the affidavit accompanying that application, the plaintiff stated that he had applied for printed copy of the judgment of the trial court and that necessary charges for the same been deposited. It was stated therein that he did not received printed copy of the judgment and as urgent orders are necessary, he filed the appeal with the certified copy. The appellate court passed an order on 08.02.1989 allowing I.A.No.117 of 1989 and directing the appellant to procedure the printed copy of the judgment at the time of hearing. 3. It would appear that the order passed by the Land Tribunal was not appended to the judgment of the trial court. The plaintiff raised a contention in the appeal that the judgment of the trial court was void since the order of the Land Tribunal was nor appended to the judgment. It would also appear that the defendant filed I.A.No.165 of 1989 before the trial court, praying for appending the order of the land Tribunal with the judgment. That application was allowed as per order dated 06.02.1989. The plaintiff challenged that order in C.R.P.608 of dated 05.06.1989. 4. A.S.18 of 1989 of the District Court Palakked was transmitted to the sub Court Palakkad where it was re-numbered as A.S.No. 42 of 1991. The lower appellate court dismissed the appeal on the short ground that the appellant/plaintiff failed to produced the printed copy of the judgment of the trial court. 5. 4. A.S.18 of 1989 of the District Court Palakked was transmitted to the sub Court Palakkad where it was re-numbered as A.S.No. 42 of 1991. The lower appellate court dismissed the appeal on the short ground that the appellant/plaintiff failed to produced the printed copy of the judgment of the trial court. 5. Learned counsel for the appellant submitted that the lower appellate was not justified in dismissing the appeal on the ground that the printed copy of the judgment was not produced. He submitted that though the appellant had filed copy was issued only on 31.12.1992 and before that date the lower appellate court dismissed the appeal. It is stated in ground No.3 of memorandum of second Appeal that the appellant received the printed copy of the judgment of the trial court only 31.12.1992. This statement was not controverter by the respondent. 6. Learned counsel for the respondent submitted that the appellant was bound to produce the printed copy of the judgment. Sub-rule (2) of rule 1 of Order XLI of C.P.C. Provides that printed copy of the judgment should be produced alone with the appeal. He also pointed out that though rules 255 to 271 of Civil Rules of Practices (Kerala), namely printing rules were deleted, the deletion took place only as per the notification dated 26.04.2000, which was published on 06.06.2000. The lower date the counsel submitted that production of printed copy of the judgment was absolutely essential for maintaining the appeal before the lower appellate court. He felled on the decision 1995 (1) KLT 843 (Reghunathan Nambiar vs. Janu). 7. The substantial question of law arising for consideration is whether the lower appellate court was justified in dismissing the appeal filed by the plaintiff on the ground of non production of the printed copy of the judgment of the trial court, when the appellant had filed the application for issuing printed copy well within time and when the printed copy was issued by the trial court after the dated of disposal of the Appeal . 8. It is true that the appellant has not produced the printed copy of the judgment of the trial court before the lower appellate court. He filed the appeal before the District Court on 06.02.1989. On that date, the order of the Land Tribunal was not appended to the judgment of the trial Court. 8. It is true that the appellant has not produced the printed copy of the judgment of the trial court before the lower appellate court. He filed the appeal before the District Court on 06.02.1989. On that date, the order of the Land Tribunal was not appended to the judgment of the trial Court. I.A.No.165 of 1989 filed by the defendant was allowed by the trial court only on 06.02.1989. Therefore on the date on which the appellant/plaintiff filed the appeal before the District Court, the records of the trial court were not proper in the sense that the order of the Land Tribunal was not appended to the judgment of the trial court. It is not stated by the respondent in any of the objections filed before the lower appellate court that the plaintiff did not apply for printed copy of the judgment of the trial court before 06.02.1989, the date on which the appeal was filed. The appellant/plaintiff having filed an application for printed copy, it was the duty of the trial court to issue printed copy on that application, though on the date of the application, the order of the judgment of the trial court. It is not the plaintiff’s concern whether the records were maintained properly by the party cannot be blamed for that mistake. Laches cannot be attributed to the plaintiff since he applied for printed copy well within the time. Going by the statement in grounds No.3 of the memorandum of second appeal, it is seen that the appellant received the printed copy only after the disposal of the appellant his appeal before the lower appellate court stood dismissed on technical grounds. The reason for the delay in getting the printed copy of the judgment and the reason before 06.02.1989 are all matter for the court for which appellant need not concern himself. The question is whether the appellant is guilty of to filing the application within the time. The answer is he is not. If so, the lower appellate court was not justified in dismissing his appeal on the ground that the printed copy of the judgment was not produced. 9. There is another circumstance which has relevance. Rules 255 to 271 of Civil Rules of practice (Karala) were deleted as per the notification dated 26.04.2000. Which was published in the Kerala Gazette dated 06.06.2000. 9. There is another circumstance which has relevance. Rules 255 to 271 of Civil Rules of practice (Karala) were deleted as per the notification dated 26.04.2000. Which was published in the Kerala Gazette dated 06.06.2000. Sub-rule (2) of rule 1 of Order XLI as in force in Kerala, provides that the copy in every case in which the High Court has prescribed that the judgment shall be printed when a copy is applied for the purpose of appeal. Rules 255 to 271 are the rules prescribed by the High Court of Kerala and those rules have been deleted. Therefore now it is not necessary to produce the printed copy of the judgment along with the memorandum of second Appeal. There is no producing itself and therefore is no necessity of producing the printed copy. The requirement of production of the printed copy of the judgment along with the memorandum of appeal being in the nature of practices (Kerala) having been deleted. I am of the view that there is nothing wrong at present to direct the lower appellate court to dispose of the appeal on merits. 10. The communication dated 14.03.1989 issued by the sub Judge, ottappalam to the District Judge, Palakkad would show that five copies of the printed copy of the judgment of the trial court have been forwarded to the appellate court. This printed copy of the judgment of the trial court its now available with lower appellate court. For the foregoing reasons and in the peculiar facts and circumstances of this case. I am of the view that the appellant should be given an opportunity to prosecute his appeal on the merits. Therefore, the judgment and decree of the lower appellate court are set aside. A.S.No. 42 of 1991 shall be restored to file and the lower appellate court shall dispose of the appeal on the merits. The parties shall appear before the lower appellate court on 20.03.2006. The appeal shall be disposed of within a period of six months.