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2021 DIGILAW 502 (JK)

Maqbool Buhroo v. Ahad Buhroo

2021-09-27

ALI MOHAMMAD MAGREY

body2021
JUDGMENT : 1. The instant application is filed on behalf of the Applicants/Appellants seeking permission of this Court to place on record the copy of Decree along with the main Civil 2nd Appeal bearing No. 08/2013, preferred against the Judgment and Decree dated 3rd of April, 2013 passed by the Court of learned Principal District Judge, Kulgam. It is stated that the Applicants/Appellants annexed copy of the Judgment and Decree dated 29th of December, 2008 passed by the Court of learned Sub Judge, Kulgam, as also a copy of Judgment dated 3rd of April, 2013 passed by the Court of learned Principal District Judge, Kulgam, along with the Appeal. It is further stated in the application that as per the amended provisions of Order XLII Rule 1 of the Code of Civil Procedure (CPC), every appeal has to be preferred in the form of memorandum signed by the appellant or his pleader; is to be presented to the Court or such Officer, as it appoints in this behalf; and the memorandum has to be accompanied by a copy of Judgment alone. It is averred that under Order XLII Rule 1 of the Code, it is provided that if an appeal is not drawn up in the prescribed manner, it may be rejected or returned to the appellant(s) for purpose of being amended within such time to be fixed by the Court or amended then and there, however, on the presentation of the Appeal by the Applicants/Appellants before the Registry of the Court, no deficiency in the memorandum of Appeal was pointed out and, when the same came up for consideration before the Court, it was neither rejected nor returned to the Applicant/Appellant for amendment within such time to be fixed by the Court. It is pleaded that it was only at the time of hearing of the Appeal on 4th of March, 2021 that the Court noticed that the Applicants/Appellants have not appended copy of the Decree Sheet of the 1st Appellate Court along with the Appeal, whereafter, as stated, the Applicants/Appellants immediately applied for a certified copy of the Decree Sheet on 8th of March, 2021 which was, accordingly, furnished to them on 9th of March, 2021. In this backdrop, the Applicants/Appellants are filing the application in hand for taking on record the certified copy of the Decree sheet of the 1st Appellate Court and making the same a part of the main Appeal. 2. Mr M. A. Qayoom, the learned Counsel for the Applicants/Appellants, submitted that there has been no deliberate or intentional failure on the part of the Applicants/Appellants to annex copy of the Decree sheet of the 1st Appellate Court with the Appeal and that it was only because of the language used in Order XLI Rule 1 of the Code that the Applicants/Appellants, besides annexing copy of the Judgment and Decree of the trial Court, have annexed certified copy of the Judgment of the 1st Appellate Court dated 3rd of April, 2013 along with the Appeal, however, on the noticing of the Court on 4th of March, 2021, the Applicants/Appellants, after obtaining a certified copy of Decree sheet, are filing the same along with the application. It is further submitted that the Applications/Appellants had applied for a certified copy of the Judgment and Decree of the 1st Appellate Court on 3rd of April, 2013, but they were furnished only a certified copy of the Judgment on 8th of April, 2013 because the office had not prepared any Decree sheet in the case as on that date. It is argued that since this Court, in terms of Order dated 18th of April, 2013, already entertained the Appeal and summoned the record of the trial Court as well as the Appellate Court, therefore, the Applicants/Appellants did not go to the Appellate Court thereafter to find out as to whether any Decree sheet has been prepared or not. It is pleaded that the aforesaid deficiency having not been pointed out by the Registry or by the Court or else by the other side till 4th of March, 2021, as such, the Applicants/Appellants did not annex a copy of the Decree sheet with the Appeal, but have, now, on the asking of the Court, obtained a certified copy of the Decree sheet which deserves to be taken on record and the delay, if any, that has occasioned in producing the same before the Court condoned. Mr Qayoom has proceeded to state that in order to buttress the argument that the Applicants/Appellants had, in fact, applied for a certified copy of the Judgment and Decree dated 3rd of April, 2013 passed by the 1st Appellate Court, the Applicants/Appellants had filed an application before the learned Munsiff, Anantnag (Incharge of Record Room) for furnishing them a copy of the said application, but the said application was returned by the District Record Keeper, Anantnag, to the Applicants/Appellants with the report that the entire record has been submitted to the High Court and that there is only an index of the file in the record room. 3. In support of his arguments, Mr Qayoom has made reference to various judgments rendered by the Supreme Court as well as different High Courts of the country, including this High Court. For purpose of brevity, some of such judgments are detailed hereunder: (i). AIR 1961 Supreme Court 832 titled Jagat Dhish Bhargava v. Jawhar Lal Bhargava & Ors. (Paragraphs 11 to 16); (ii). AIR 1985 Patna 148 titled Mosmat Ram Kali Kuer & Ors. v. Indradeo Choudhary & Anr. (Paragraphs 7 to 11); and (iii). AIR 1986 Punjab and Haryana 84 titled Puran Singh v. Jagtar Singh (Paragraphs 5 and 6). 4. Objections stand filed on behalf of the Non-Applicants/Respondents to the instant application, resisting and controverting the averments made by the Applicants/Appellants. It is submitted that the Applicants/Appellants have been reckless and grossly negligent in filing the Civil 2nd Appeal against the Judgment and Decree passed by the 1st Appellate Court inasmuch as they only annexed the copy of the Judgment and not the Decree sheet along with the Appeal, as mandated by law. It is contended that in view of this deficiency, the main Appeal is rendered defective and incompetent, as such, same deserves to be rejected. 5. Mr G. A. Lone, the learned Counsel, representing the Non-Applicants/Respondents, submitted that the Applicants/Appellants have been reckless and grossly negligent in filing the Civil 2nd Appeal against the Judgment and Decree passed by the 1st Appellate Court of Principal District Judge, Kulgam in Civil 1st Appeal No. 5/CIA decided on 3rd of April, 2013. 5. Mr G. A. Lone, the learned Counsel, representing the Non-Applicants/Respondents, submitted that the Applicants/Appellants have been reckless and grossly negligent in filing the Civil 2nd Appeal against the Judgment and Decree passed by the 1st Appellate Court of Principal District Judge, Kulgam in Civil 1st Appeal No. 5/CIA decided on 3rd of April, 2013. It is further submitted that the Applicants/Appellants, while filing the Civil 2nd Appeal against the Judgment of the 1st Appellate Court dated 3rd of April, 2013, have only annexed the copy of the Judgment and not the copy of the Decree sheet which is a mandatory requirement as per provisions of Order XLII Rule 1 and non-compliance thereof goes to the root of the case and renders the Appeal defective. It is pleaded that from the contents of the application itself, it is abundantly clear that the Applicants/Appellants had filed the Appeal without annexing the copy of the Decree with the memorandum of Appeal and, as such, the attempt made by the Applicants/Appellants to lay the blame upon the Registry or upon the Court for not informing them about the aforesaid fatal defect is purely a blame game to overreach the process of law. It is argued that the Applicants/Appellants, on their own showing, being themselves at fault in not filing the certified copy of the Decree sheet with the Appeal, cannot, now, be heard saying that they were not informed by the Court about the defect in the Appeal. Mr Lone contended that in the application, the Applicants/Appellants have, now, filed the certified copy obtained by them after a period of around eight years of the passing of the Judgment under Appeal, which is sought to be produced with the memorandum of Appeal without furnishing any ground for the huge and enormous delay of around eight years. The learned Counsel vehemently argued that there is not a word or a ground which could be taken into consideration by the Court for extension of time in producing the certified copy of the Decree, more so, when the Decree sheet was prepared and available immediately after the Judgment was delivered by the 1st Appellate Court on 3rd of April, 2013. Mr Lone, in support of his arguments, has also made reference to various judicial dictums governing the subject delivered by various Courts of the country, including the Apex Court, including: (i). Mr Lone, in support of his arguments, has also made reference to various judicial dictums governing the subject delivered by various Courts of the country, including the Apex Court, including: (i). AIR 1967 Supreme Court 1470 titled Phoolchand & Anr. V. Gopal Lal (Paragraphs 5 to 8); (ii). AIR 1969 Supreme Court 575 titled Shakuntala Devi Jain v. Kuntal Kumari & Ors. (Paragraphs 2 to 8); (iii). AIR 1998 Jammu and Kashmir 9 titled Om Prakash Gupta v. Suresh Bakshi & Anr. (Paragraphs 4 to 10); and (iv). 2009 (Supp) JKJ 664 (HC) titled Dig Vijay Singh v. Mahavir Gupta (Paragraphs 4 to 6). 6. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter. 7. The moot question that arises for consideration herein this case, as raised by the Non-Applicants/Respondents, is with regard to the maintainability of the Civil 2nd Appeal in absence of annexing the certified copy of the Decree along with the memorandum of Appeal at the time of filing of the Appeal. The argument is that the mandate of Order XLII Rule 1 of the Code of Civil Procedure is mandatory and, as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the Judgment and without the certified of the Decree, the appeal must be dismissed as being incompetent. 8. The aforesaid issue is a technical one and is required to be considered in a broad and general form. The law is that if at the time when the appeal is preferred, a Decree has already been drawn up by the Court below and the Appellant has not applied for it in time, it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court, a Decree, in fact, has not been drawn up by the Court below, in such a case, if an application has been made by the Appellant for a certified copy of the Decree, then, all that can be said against the appeal preferred by him is that the appeal is premature since a Decree has not been drawn up, and it is the Decree against which an appeal lies. In such a case, if the office of the Court where the appeal is filed examines the appeal carefully and discovers the defect, the appeal may be returned to the appellant for presentation with the certified copy of the Decree after it is obtained. In the case like the present one, if the Appeal has passed through the stage of admission through oversight of the office, then, the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should procure the certified copy of the decree as soon as it is supplied to him. In such a case, it would be open to the Court to direct the Court below to draw up the Decree forthwith without any delay. On the other hand, if a Decree has been drawn up and an application for its certified copy has been made by the Appellant after the decree was drawn up, the office of the appellate Court should return the appeal to the appellant as defective, and when the Decree is filed by him the question of limitation may be examined on merits. 9. In the case in hand, admittedly, the Applicants/Appellants have filed the Civil Second Appeal under Section 100 of the Code against the Judgment and Decree dated 3rd of April, 2013 passed in appeal by the Court of learned Principal District Judge, Kulgam read with Order XLII of the Code. In terms of the mandate of Order XLII Rule 1 of the Code, an appeal is to be accompanied by a certified copy of Judgment and Decree appealed from as also a copy of the Judgment and Decree of the Court of first instance, which requirement is mandatory in nature. Admittedly, when the Applicants/Appellants have not accompanied the certified copy of the Decree of the 1st Appellate Court, the same renders the Appeal incompetent, ineffective and defective, which is a ground for rejection of the Appeal. The only exception which the law permits regarding non-filing of certified copy of the Judgment and Decree is failure on the part of the Court below to frame the Decree sheet within the time prescribed by law. The only exception which the law permits regarding non-filing of certified copy of the Judgment and Decree is failure on the part of the Court below to frame the Decree sheet within the time prescribed by law. In this regard, the Applicants/Appellants are required to show to the Court, by a proper application, that despite their best efforts to procure the certified copy of the Decree sheet of the 1st Appellate Court, they could not obtain the same, as the Court below had failed to prepare the Decree sheet. The time taken by the office of the Court in drawing up a Decree, after the concerned Applicant applies for issuance of certified copy of Judgment and Decree being pronounced, has to be treated as time taken for obtaining the certified copy of the said Decree. In the present case, the Applicants/Appellants do not substantiate the plea that they had applied for the issuance of certified copy of the Decree sheet, as is evident from the fact of they having not filed any application indicating the reasons for not accompanying the certified copy of Decree alongside the appeal and the non-production of the same is fatal. 10. Mr Qayoom has vehemently tried to bring the case of the present Applicants/Appellants under the aforesaid exception by arguing that the Applicants/Appellants have made their endeavour and effort for obtaining the certified copy of the Decree sheet, but this was not substantiated at the time of filing of the Appeal by filing any application seeking exemption till the time certified copy of the Decree sheet is obtained. The Applicants/Appellants seek the benefit of coming under exception with the support of the law rendered by the Supreme Court in case titled ‘Jagat Dhish Bhargava v. Jawaharlal’ reported in ‘ AIR 1961 SC 832 ’, wherein the Apex Court held as under: “… Let us then consider the technical point raised by the appellant challenging the validity or the priority of the order under appeal. The argument is that O.41 Rule 1, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment, the appeal must be dismissed as being incompetent, the relevant provisions of O.41 with regard to the filing of the decree being a mandatory character. It would be difficult to accede to the proposition thus advanced in a broad and general form. If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial court: in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect the appeal may be returned to the appellant for presentation with certified copy of the decree after it is obtained…” On consideration of the matter and on examination of the material on record, the Court is of the opinion that the Applicants/Appellants do not come in the exception enumerated and discussed hereinabove. 11. There can be no dispute with regard to the above legal position, however, it is obvious that the complications in the present case have partly arisen as a result of the failure of the Registry of this Court to notice the defect of the Appeal being without certified copy of the Decree and to take appropriate action with respect thereto at the initial stage before the Appeal was placed for admission under Order 41 Rule 1. Besides, there is no hard and fast rule of general applicability laid down for dealing with appeals defectively filed under Order 41 Rule 1 and appropriate orders are required to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant(s) required to remedy the defect(s). Therefore, the Court is of the considered opinion that the objection of the Non-Applicants/Respondents with regard to the Appeal of the Applicants/Appellants being defective, at this stage and in view of the facts and circumstances already adverted, cannot be sustained. 12. True it is that the provisions of Order XLII of the Code are mandatory in nature, but, once an appeal is duly entertained without the production of a certified copy of the Decree sheet with it and neither the memorandum of appeal was rejected nor returned, as provided under Order XLI Rule 3 of the Code, then, subsequently, the appeal could not be dismissed on the ground that at the time of the presentation of the appeal the same was not accompanied with a certified copy of the Decree under appeal because by that time the stage for dismissing the appeal for non-compliance of the provisions of Order XLII of the Code had already passed. At this stage, the Appellants could only be directed to file the certified copy of the Decree under appeal after obtaining the same from the Court below, which course has been duly adopted by the Appellants by filing the application for taking on record the copy of the Decree. 13. In the above background and with a view to do substantial justice between the parties, the instant application is allowed and the certified copy of the Decree dated 3rd of April, 2014 passed by the 1st Appellate Court is taken on record, to be made part of the memorandum of appeal. 14. CM No. 1642/2021 is disposed of as above. Let the main Appeal be listed for consideration on 1st of November, 2021.