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2021 DIGILAW 764 (MAD)

Dharmalingum v. K. P. Perumal

2021-03-04

R.SUBRAMANIAN

body2021
ORDER : R. Subramanian, J. 1. This SR is placed for maintainability. It is seen from the records that the Appellate Court disposed of A.S. No. 13 of 2017 on 15.04.2019. The Appeal memorandum was filed in time on 31.07.2019, along with the copy of the judgment of the Appellate Court. The Decree of the Appellate Court was not produced on the date of the presentation of the appeal. But the copy of the judgment of the Appellate Court was produced. However, the Registry returned the papers insisting upon the production of a copy of the decree. The appeal was represented on 01.06.2020 along with the copy of the decree. The Registry had insisted upon an application for condonation of delay, claiming that the appeal was validly presented only on 01.06.2020, namely the date on which the appeal was represented along with the copy of the decree. 2. Taking objection to the insistence of the Registry for filing application for condonation of delay in filing the appeal, the learned counsel for the appellant would contend that after the amendment of Order 41 Rule 1 of Code by the Civil Procedure Code (Amendment) Act, 1999, production of a copy of a decree is wholly unnecessary, while preferring an appeal. Order 41 Rule 1, prior to the amendment stood as follows:- 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 appoints in this behalf. The memorandum shall be accompanied by a copy of the "Decree appealed from (unless the Appellate Court dispenses therewith) of the judgment on which it is found." Order 41 Rule 1, after amendment reads as follows:- "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 appoints in this behalf. 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 appoints in this behalf. The memorandum shall be accompanied by a copy of the [judgment]: [Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that 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.] 3. A reading of the un-amended provision along with the amended provision would make it clear that the legislature clearly intended to dispense with the production of the decree along with the appeal. Therefore, the Registry cannot insist upon production of a copy of the decree along with the appeal. A Division Bench of this Court had an occasion to consider similar question in A.S.SR 7543 of 2016 and the Division Bench had observed as follows: "4. On a perusal of Order XLI 41 Rule 1, as quoted above, it is evident that the decree of the Court below is not a mandatory document to be annexed with the appeal papers and, therefore, the documents submitted by the learned counsel for the appellant is in accordance with the said provision of law and, therefore, the objection raised by the Registry cannot be sustained. 5. Accordingly, Registry is directed to number the appeal and the connected miscellaneous petition, if otherwise in order, and list the matter before Court." 4. This dictum of the division Bench has been followed by this Court in Sathish Kannan Vs. R. Bhavani, reported in (2018) LW 913. 5. My attention is drawn to the Madras Amendment to the Rules, which reads as follows:- "Madras (i) For sub-rule (1) substitute the following:- (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 appoints in this behalf. 5. My attention is drawn to the Madras Amendment to the Rules, which reads as follows:- "Madras (i) For sub-rule (1) substitute the following:- (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 appoints in this behalf. The memorandum of appeal shall be accompanied by a certified copy of the decree appealed from and (unless the Appellate Court dispenses therewith) by a certified copy of the judgment on which it is founded and by such number of typewritten or cyclostyled or printed or mechanically reproduced copies of the judgment as are necessary to serve on the respondents to the appeal and four additional copies for the use of the Court. The copies so filed shall be neatly and legibly prepared without any error, of which four copies intended for the use of the Court, shall be on thick paper. In case the judgment is typed or cyclostyled, the four copies intended for the use of the Court must be typed or cyclostyled on one side of the paper only: Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, it shall not be necessary to file more than one set of copies of the judgment as provided for in this rule: Provided further that the Court shall have the copies of the judgment so filed compared with the certified copy of the judgment on payment of the prescribed charges."-21.08.1983." 6. The law is well settled on the validity of State Amendment, when it comes into conflict with subsequent Central Enactment. The Honourable Supreme Court Pr. Rishikesh and another Vs. Salma Begum in 1995 4 SCC Page 718 had held that if a existing State Legislation conflicts with subsequently enacted Central Law, the Central Law alone would prevail, unless the State re-enacts the law and reserves it for presidential assent. Such re-enactment has not happened in the case on hand. Therefore, the Rule as amended by Code of Civil Procedure (Amendment) Act under 46 of 1999 would alone be applicable. Even the Appellate side Rules of this Court, does not require production of a decree. Such re-enactment has not happened in the case on hand. Therefore, the Rule as amended by Code of Civil Procedure (Amendment) Act under 46 of 1999 would alone be applicable. Even the Appellate side Rules of this Court, does not require production of a decree. Rule 16 of Order 4 of Appellate Side Rules does not insist upon production of a copy of the decree along with appeal. 7. In view of the above, the appeal presented on 31.07.2019 along with the copy of the judgment itself was a proper presentation and the Registry is not right in insisting upon filing of an application for condonation of delay. Registry is directed to number the appeal, if it is otherwise in order. Registry shall not insist upon production of a decree along with the appeals in future.