Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1401 (KER)

Babu Scaria v. Jessy Thomas

2017-11-13

ANIL K.NARENDRAN

body2017
JUDGMENT : 1. The petitioner, who is the judgment debtor in E.P.No.12 of 2010 in O.S.No.114 of 1999 on the file of the Munsiff's Court, Kattappana, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Exts.P4, P6 and P7 orders of the said court. 2. On 19.10.2017, when this original petition came up for admission as 'today motion' it was noticed that the documents produced as Exts.P4 and P7 are neither a certified copy nor a true copy of the impugned orders. Registry was directed to get an explanation from the Filing Scrutiny Officer, who numbered this original petition without even noticing the fact that copy of Exts.P4 and P7 orders, which are impugned in this Original Petition, are not placed on record. 3. In paragraph 5 of the original petition, the petitioner has stated that the document marked as Ext.P4 is a typed copy of the proceedings in E.A.No.21 of 2014 and that, Ext.P7 is the text of the order passed in E.A.No.41 of 2017 and E.A.No.44 of 2017. In paragraph 2 of the affidavit in support of the original petition, the petitioner has verified that the documents marked as Exts.P1 to P8 are true copies of the originals. 4. On 19.10.2017, this Court issued urgent notice on admission to the respondent by special messenger and it was made clear that the maintainability of this original petition will be decided with notice to the respondent. This Court has also ordered that, if E.P.No.12 of 2010 in O.S.No.114 of 1999 on the file of the Munsiff's Court, Kattappana stands posted to 20.10.2017 for delivery, actual delivery shall be deferred for a period of one week. 5. On 30.10.2017, when this original petition came up for consideration, the learned counsel for the petitioner submitted that, the petitioner has obtained certified copies of Exts.P4 and P7 orders, which shall be produced before this Court on 31.10.2017 itself, along with a memo. After recording the said submission, this Court ordered that the interim order dated 19.10.2017 shall continue to be in force for a further period of two weeks. On 31.10.2017, the learned counsel for the petitioner produced certified copies of Exts.P4 and P7 orders, along with a memo dated 31.10.2017. 6. After recording the said submission, this Court ordered that the interim order dated 19.10.2017 shall continue to be in force for a further period of two weeks. On 31.10.2017, the learned counsel for the petitioner produced certified copies of Exts.P4 and P7 orders, along with a memo dated 31.10.2017. 6. On 9.11.2017, when the matter was taken up for consideration, this Court noticed from the certified copy of the order dated 12.10.2017 of the Munsiff's Court, Kattappana in E.A. Nos.41 of 2017 and 44 of 2017 in E.P.No.12 of 2010 produced along with the aforesaid memo dated 31.10.2017, that the document marked as Ext.P7 in this original petition is not a true copy of the said order. The learned counsel for the petitioner sought adjournment and accordingly the matter is listed today for further consideration. 7. Heard the learned counsel for the petitioner/judgment debtor and also learned counsel for the respondent/decree holder, on the question of maintainability of this original petition. 8. The document marked as Ext.P7 in this original petition, as a typed copy of the order in E.A.No.41 of 2017 and E.A.No.44 of 2017, reads thus; BEFORE THE HONOURABLE MUNSIFF'S COURT AT KATTAPPANA Typed copy of the order in E.A.No.41/2017 and E.A.No.44/2017 Point I in E.A.No.44/2017 Petitioner prayed to condone the delay of sixty days to institute E.A.41/2017. According to the petitioner his counsel made oral submission before the court to review the impugned order. He was of the impression that his court suo-motu review the order on the basis of oral submission. Hence he did not prefer any written application. When he noticed that this court had not reviewed its impugned order he lodged E.A.No.41/2017 for review. There is a delay of 60 days to institute E.A.No.41/2017. The reason stated by the petitioner according to me is not sufficient to condone the delay. Moreover the order sought to be reviewed was passed on 27.06.2017. So the application for the review ought to have filed on or before 26.07.2017 but it is filed only on 25-9-2017. The same was filed without any application to condone the delay. Subsequently, on 28-9-2017 the present petition was filed. The present petition ought to have filed along with E.A.No.41/17. Since the review application was instituted without a petition to condone delay, I already found that the same was not maintainable. The same was filed without any application to condone the delay. Subsequently, on 28-9-2017 the present petition was filed. The present petition ought to have filed along with E.A.No.41/17. Since the review application was instituted without a petition to condone delay, I already found that the same was not maintainable. Similarly the result the petition was filed after three days after the date of E.A.No.41/17. This petition is also not maintainable. This application is also liable to be dismissed. (underline supplied) POINT 3 IN E.A.NO.41/17 AND POINT 2 IN E.A.NO.44/17 in the result E.A.No.41/17 and E.A.No.44/2017 are dismissed with cost. E.A.44/17 IS THE DELAY CONDONATION PETITION AND E.A.41/17 IS THE REVIEW PETITION. E/A 48/17 is the stay petition. (underline supplied) 9. The typed copy of the order in E.A.No.41 of 2017 and E.A.No.44 of 2017 marked as Ext.P7 in this original petition is only paragraphs 24 and 25 of the said order dated 12.10.2017, a certified copy of which has now been produced before this Court along with a memo dated 31.10.2017. Paragraphs 24 and 25 of the said order read thus; 24. Point I in E.A.No.44/2017: Petitioner prayed to condone the delay of 60 days to institute E.A.41/2017. According to the petitioner his counsel made oral submission before the court to review the impugned order. He was of the impression that this court suo-motu review the order on the basis of oral submission, hence he did not prefer any written application. When he noticed that this court had not reviewed the impugned order he lodged E.A. No.41/2017 for review. There is a delay of 60 days to institute E.A.No.41/2017. The reason stated by the petitioner, according to me, is not sufficient to condone the delay. Moreover the order sought to be reviewed was passed on 27-06-2017. So the application for the review ought to have filed on or before 26-07-2017 but it is filed only on 25.09.2017. The same was filed without any application to condone the delay. Subsequently, on 28-09-2017 the present petition was filed. The present petition ought to have filed along with E.A.No.41/17. Since the review application was instituted without a petition to condone delay, I already found that the same was not maintainable. Similarly the present petition was filed after three days from the date of E.A.41/17 this petition is also not maintainable. This application is also liable to be dismissed. (underline supplied) 25. Since the review application was instituted without a petition to condone delay, I already found that the same was not maintainable. Similarly the present petition was filed after three days from the date of E.A.41/17 this petition is also not maintainable. This application is also liable to be dismissed. (underline supplied) 25. Point 3 in E.A.41/17 and Point 2 in E.A.44/17: In the result, E.A.41/17 and E.A.44/2017 are dismissed with costs. 10. Chapter XI of the Rules of the High Court of Kerala, 1971 deals with proceedings under Articles 226, 227 and 228 of the Constitution. Rule 145 deals with form and presentation of an application under Article 226 or under Article 227 or under Article 228. Rule 147 deals with the documents which should accompany such an application under Article 226 or under Article 227 or Article 228. Rule 147 reads thus; “147. Documents to accompany petitions.- (1) The application shall be accompanied by: (a) An affidavit verifying the facts relied on, (b) a copy of the impugned order, if any, and (c) a schedule of the documents relied on in the affidavit with copies of such of those documents as are in the possession of the petitioner. (d) Synopsis as prescribed in sub-rule (5) of Rule 35. (2) The copies of the document filed under sub-rule (1) shall be, authenticated as true copies by the Advocate, and, if there be no Advocate by the party. (3) Two authenticated copies of the application, the affidavit and the annexures thereto for the use of the Court, and in petitions where the State is a respondent, two more copies of the applications, the affidavit and the annexures thereto for the use of that respondent.” 11. Going by clause (b) of sub-rule (1) of Rule 147, if an order is impugned in an application filed under Article 226 or under Article 227 or Article 228 of the Constitution of India such application shall be accompanied by a copy of the order impugned. Further, sub-rule (2) of Rule 147 mandates that the copy of the impugned order and other documents which accompany an application filed under Article 226 or under Article 227 or Article 228 of the Constitution shall be authenticated as true copies by the Advocate and if there is no Advocate, by the party. 12. Order XLI of the Code of Civil Procedure, 1908 deals with appeals from original decrees. 12. Order XLI of the Code of Civil Procedure, 1908 deals with appeals from original decrees. Order XLI, Rule 1, which deals with form of appeal provides that, 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 appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment. The second proviso to sub-rule (1) of Rule (1) [inserted by High Court amendment - Punjab, Haryana and Chandigarh] provides that, the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct. The second proviso reads thus; "Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct." 13. In Jogdhayan v. Babu Ram [ (1983) 1 SCC 26 ], in the context of the second proviso to sub-rule (1) of Rule (1) of Order XLI of the Code, a Three-Judge Bench of the Apex Court observed as follows; It is not understandable, how the counsel for the appellant could file 'true copies', when his client had not obtained the certified copy of the order in question.” 14. In the instant case, the document marked as Ext.P7 cannot be termed as a copy of the impugned order dated 12.10.2017, as it contains only paragraphs 24 and 25 of the order dated 12.10.2017 of the Munsiff's Court, Kattappana in E.A.No.41 of 2017 and E.A.No.44 of 2017. Similarly, the document marked as Ext.P4 cannot also be termed as a copy of the impugned order dated 16.6.2017 in E.A.No.21 of 2014 in E.P.No.12 of 2010, as it does not contain the entire text of that order. 15. Admittedly, as on the date of filing of this original petition, i.e., as on 19.10.2017, the petitioner/judgment debtor has not obtained certified copy of those orders. The said fact is admitted in this original petition. Now, as evident from the certified copy of those orders produced along with the memo filed by the learned counsel for the petitioner on 31.10.2017, certified copy of those orders were issued to the petitioner/judgment debtor only on 24.10.2017. The said fact is admitted in this original petition. Now, as evident from the certified copy of those orders produced along with the memo filed by the learned counsel for the petitioner on 31.10.2017, certified copy of those orders were issued to the petitioner/judgment debtor only on 24.10.2017. If that be so, the documents produced as Exts.P4 and P7 in this original petition cannot be termed as true copy of those orders duly authenticated by the learned counsel for the petitioner, as mandated by sub-rule (2) of Rule 147 of the Rules of the High Court of Kerala. 16. In Surinder Singh v. Central Government [ (1986) 4 SCC 667 ], in the context of Article 226 of the Constitution of India, the Apex Court held that, in the absence of the order under challenge, the High Court could not quash the same. Normally, whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which might have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution. 17. In A.X. Varghese v. Union of India ( 1991 (1) KLT 635 ), in the context of Article 226 of the Constitution of India, a learned Judge of this Court held that a copy of the order under challenge has to be produced along with the original petition. 18. In such circumstances, the challenge made in this original petition against the order dated 16.6.2017 in E.A.No.21 of 2014 in E.P.No.12 of 2010 and the order dated 12.10.2017 in E.A.No.41 of 2017 and E.A.No.44 of 2017 of the Munsiff's Court, Kattappana cannot be entertained, as the documents marked as Exts.P4 and P7 cannot be termed as true copy of those orders duly authenticated by the learned counsel for the petitioner, as mandated by sub-rule (2) of Rule 147 of the Rules of the High Court of Kerala. 19. 19. In such circumstances, this original petition stands dismissed for the aforesaid reason, however, without prejudice to the right of the petitioner/judgment debtor to challenge Exts.P4 and P7 orders and also Ext.P6 order, by filing a fresh original petition producing either certified copy of those orders or true copy of those orders duly authenticated, as mandated by sub-rule (2) of Rule 147 of the Rules of the High Court of Kerala. 20. The interim order granted by this Court on 19.10.2017, which was extended for a further period of two weeks on 30.10.2017, shall continue to be in force for a period of 10 days from this date, so as to enable the petitioner/ judgment debtor to file a fresh original petition producing either certified copy or true copy of those orders duly authenticated as mandated by sub-rule (2) of Rule 147 of the Rules of the High Court of Kerala. 21. The petitioner shall file such original petition after serving a copy of the same to the learned counsel who represented the respondents/decree holders in this original petition. Registry shall return the certified copies of the order dated 16.6.2017 in E.A.No.21 of 2014 in E.P.No.12 of 2010 and the order dated 12.10.2017 in E.A.No.41 of 2017 and E.A.No.44 of 2017 of the Munsiff's Court, Kattappana produced by the learned counsel for the petitioner forthwith, after retaining an attested copy of the same in the Judge's papers.