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2009 DIGILAW 521 (JK)

Mohd. Sultan v. Oswal Mills

2009-10-30

MUZAFFAR HUSSAIN ATTAR

body2009
1. CIA No. 94/2000 was heard and reserved for judgment on 22nd April 2009. Order dated 2nd May 2009, reveals that the judgment was drafted, but on fresh look on the appeal it transpired that though decree sheet has been placed on the appeal record but in the memorandum of appeal no challenge was thrown to the decree. This court, accordingly, pointed out the infirmity in the case to the ld. counsel for parties. It was for this reason that the judgment could not be announced which has been kept in sealed cover. CMP No. 333/2009 2. Appellants filed an application seeking permission to add words "and decree" in the column disclosing the subject matter as also in the relief para in line No.2, after the word, "judgment" through table amendment. 3. In the application, it has been pleaded that though the appeal is filed against the judgment and decree but inadvertently and by typing error the word "and decree" has been omitted in the memo of appeal. It is further pleaded for all purposes and intents the appellants seek annulment of judgment and decree passed against them by the trial court. It is also pleaded that in order to do justice to the parties, the mistake which has crept in be ordered to be corrected and application allowed so as to enable the appellants to add words, "and decree" in the relief clause of the memorandum of appeal. 4. Respondents have filed objections. In the objections it has been pleaded that it is not correct to say that because of typing error the mistake "and decree" has been omitted from the memorandum of appeal. It is also pleaded that an appeal can be filed against the "decree" and same having not been done, the appeal is incompetent, the application deserves dismissal. 5. Heard ld counsel for parties. Considered the matter. 6. Mr. G.A. Lone, ld counsel for applicants-appellants vehemently argued that non mentioning of words "and decree" in the prayer clause of the appeal is not deliberate act. The ld counsel further submitted that the last part of the judgment gets crystallized into the settlement of dispute which is treated as decree. Heard ld counsel for parties. Considered the matter. 6. Mr. G.A. Lone, ld counsel for applicants-appellants vehemently argued that non mentioning of words "and decree" in the prayer clause of the appeal is not deliberate act. The ld counsel further submitted that the last part of the judgment gets crystallized into the settlement of dispute which is treated as decree. Ld counsel would thus submit that omission to mention decree in the prayer clause of memorandum of appeal would not thus affect the competence of the appeal and the application filed by him is maintainable, and in the interest of justice same be allowed. 7. Mr. M.A. Qayoom, ld counsel for the non-applicants-respondents, however, vehemently opposed the grant of application. Ld counsel submitted that the appeal against the judgment is not maintainable so this application is also incompetent. Ld counsel invited the attention of the court to Sub Section (1) of Section 96 of CPC to demonstrate that the appeal can be filed against a decree. The ld. counsel further referred to and relied upon case titled Darayas Bamansha Medhora, Appellant v. Nariman Bamansha Medhora, Respondent, reported in AIR 2002 Guj 166. Ld counsel referred to para 10.1, 10.2, and 10.3 to state that judgment and decree are two different expressions as defined in CPC. On the basis of Section 96 CPC it is ruled that an appeal lies only against a decree in view of the mandate contained in said provision. The ld counsel also referred to and relied upon case titled "Banarsi and ors, appellant v. Ram Phal, respondent, reported in AIR 2003 SC 1989 and invited attention of the court to paragraph 8 of the said judgment. The Honble Supreme Court at paragraph 8 has ruled on the basis of Sections 96 and 100 CPC that an appeal lies against the decree and not against the judgment. 8. The ld counsel also submitted that as the appeal is incompetent so this application is misconceived and merits rejection. Section 96 of CPC is reproduced as under:- "96. Appeals form original decree (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the court authorized to hear and appeals from the decisions of such Court. Appeals form original decree (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the court authorized to hear and appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex-parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees." 9. An appeal can be filed by an aggrieved person in terms of Section 96 of CPC. Appeal being creature of statute, a party if aggrieved, can file appeal but same has to be filed in accordance with mandate as contained in Section 96 of CPC. 10. Section 96(1) provides that appeal shall lie from every decree passed by any court who exercises the original jurisdiction, to the Court authorized to hear appeals from the decisions of such Court. 11. Order 41 Rule 1 is reproduced as under:- "1.Form of appeal. What to accompany memorandum (1) Every appeal shall be preferred in the form of an memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court) dispenses therewith) of the judgment on which it is founded:" 12. Order 41 Rule 1 provides form of appeal and what to accompany the memorandum of appeal. Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or such officer as it appoints in this behalf. It further provides that memorandum of appeal shall be accompanied by a copy of decree appealed from and copy of judgment on which it is founded. The appellate court, however, has power to dispense with filing of copy of judgment but no such power is available to dispense with filing of copy of decree. Appeal arises against the judgment and decree passed by ld. The appellate court, however, has power to dispense with filing of copy of judgment but no such power is available to dispense with filing of copy of decree. Appeal arises against the judgment and decree passed by ld. District Judge Srinagar dated 12th Oct. 2000. Record of the appeal reveals that the suit of the appellant was dismissed by ld. Pr. District Judge vide its judgment dated 12th Oct. 2000. Against the said judgment the appeal was filed which was registered as CIA 94/2000. This court vide its judgment dated 7th Feb. 2005 set aside the judgment. After setting aside the judgment by this court, the matter was reheard by the ld trial Judge and vide impugned judgment the suit is again dismissed. It is against this judgment the present appeal has been filed. The appeal is pending before this court from the year 2000. During this period the ld counsel for respondents did not point out the defeat which was apparent on the face of the appeal. 13. As already stated this case was heard and reserved but after drafting of the judgment the court pointed out the infirmity which is appearing on the face of the record to the ld counsel for parties. 14. The moot question which requires to be answered in this order is as to whether the application filed by the appellants is competent and could be allowed in the facts of this case. 15. As already stated an appeal is creature of statute and appeal can be filed only when authorized by the Statute. In this case in the memorandum of appeal the appellants have prayed for setting aside the judgment dated 12th Oct. 2000. The appeal record reveals that besides placing on record the verified true copy of the judgment, a verified true copy of the decree sheet has been placed on the appeal record by the appellants. The question, thus, is can it be ascribed to appellant that he has failed to file an appeal against the decree. 16. Ld counsel who drafted the appeal must have been conscious of the fact that appeal is filed against a decree and not against a judgment. When the decree sheet is placed on the record of the appeal, it cannot be said that the appeal is filed only against the judgment and not against the decree. 16. Ld counsel who drafted the appeal must have been conscious of the fact that appeal is filed against a decree and not against a judgment. When the decree sheet is placed on the record of the appeal, it cannot be said that the appeal is filed only against the judgment and not against the decree. The intention of the appellants in this case does show that this appeal has been, in essence, filed against the decree and judgment, passed by ld. Pr. District Judge Srinagar dt. 12th Oct. 2000. 17. The contention raised by ld counsel for the respondents is that the appeal in the eye of law is incompetent for the reason that though the decree sheet has been annexed with the memorandum of appeal but not challenged in the memo of appeal. On the other hand the ld counsel for applicants submitted that copy of the decree sheet annexed with the memo of appeal demonstrates the intention of the appellant to challenge the same. The appeal in this fact situation cannot be said to have been filed only against the judgment but in essence it has been filed against the decree as well. 18. In the application it has been specifically pleaded that because of typing error the words "and decree" do not find place in the prayer clause of the appeal. Typing mistake cannot be allowed to defeat the right with which the appellants are vested with. The appellants for typing error cannot be made to suffer as that would be doing injustice to them. This case has been heard and reserved and judgment was also prepared which is in sealed cover. It is not a case where decree sheet is not filed which would render appeal incompetent. The law cited by the ld counsel for the non-applicants-respondents for the reason given in this order does not help respondents. 19. Ld counsel for the respondents also made a submission at the conclusion of hearing of this application that the appeal is not valued, and the requisite court fee has not been paid. Non-valuation of the appeal is not a defect which will to go to the root of the appeal. The appeal is to be valued for the purposes of court fee. Appellants can be directed by the court at any point of time to value the appeal and to pay court fee. 20. Non-valuation of the appeal is not a defect which will to go to the root of the appeal. The appeal is to be valued for the purposes of court fee. Appellants can be directed by the court at any point of time to value the appeal and to pay court fee. 20. For the reasons mentioned, this application is allowed. The appellants are permitted to make table amendment in the cause title and prayer clause of the memorandum of appeal and by way of table amendment they are permitted to add words "and decree" after word "judgment". Ld counsel will also by table amendment value the appeal for the purpose of court fee and will also pay the requisite court fee. The appellants-applicants are directed to comply with this order within a period of one week. Registrar juridical to permit the appellants-applicants to comply with the order passed today. The needful be done within a weeks time, and if done within the time provided, the appeal shall be listed for pronouncement of judgment on next day. In case failure to comply with the order within aforesaid period, the main appeal shall be listed for further proceedings.