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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.N.Raina
  • S.N.Dhar
Judges
  • Hon'ble Sh. Justice Janki Nath Bhat
Acts
  • Rule 6 of the General Civil Rules
  • Rule 6 of the Civil Rules
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.N.Raina
  • S.N.Dhar
Judges
  • Hon'ble Sh. Justice Janki Nath Bhat
Acts
  • Rule 6 of the General Civil Rules
  • Rule 6 of the Civil Rules
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

A decree was passed by the Munsiff Pulwama on 20-7-65. The appellant filed an appeal against that decree before the District Judge at Anantnag on 19-10-65. When presented, the appeal was registered and the respondents and the lower court record were summoned; a clerk's note recorded that a copy of the decree-sheet had not been appended to the appeal. The appeal came up before the lower appellate court on 8-11-65, when respondents were absent and the appellant's counsel sought and was granted time to present a copy of the decree-sheet. The matter was adjourned to 23-11-65, and on that day the copy was produced.

A preliminary objection was raised that because the copy of the decree-sheet had not been appended at the time of presentation, the appeal was incompetent under Order 41, Rule 1 of the Civil Procedure Code (CPC). The lower appellate court sustained this objection and dismissed the appeal; it observed that the appellant had obtained the decree-sheet on 17-11-65 but did not present it until 23-11-65 and had not adequately explained that delay. An application for condonation of delay without an affidavit was also presented before the lower appellate court on 23-11-65. The present opinion records the hearing and determination by the higher court on the appeal from that dismissal.

Legal Issues Presented

  1. Whether an appeal presented without a copy of the decree-sheet appended to the memorandum of appeal is incompetent under Order 41, Rule 1 CPC and thus liable to dismissal.
  2. Whether an appeal that was admitted by the appellate court through oversight (i.e., admitted despite lacking the decree copy) should be dismissed or the hearing adjourned so that the appellant may produce the certified copy when it is supplied.
  3. What is the effect of the General Civil Rules (Rule 6) requirement that applicants for a copy of judgment be informed that a copy of the decree is also requisite, including the requirement for an endorsement where fees are declined?

Arguments of the Parties

Respondents' Arguments

  • The respondents' counsel contended that it was obligatory for the appellant to present a copy of the decree-sheet at the time of presentation of the appeal; failure to do so rendered the appeal incompetent and liable to dismissal under Order 41, Rule 1 CPC.
  • The respondents' counsel referred to several authorities (listed by name in the opinion) in support of that proposition.

Appellant's Arguments

  • The appellant's counsel relied primarily on the Supreme Court authority reported as AIR 1961 SC 832, which (as summarized in the opinion) contained principles that counsel argued should protect the appellant in the present circumstances.
  • The appellant also relied on Rule 6 of the General Civil Rules and the Orders framed by that court, arguing that formalities required of the copying office (including informing applicants that a copy of the decree is requisite and endorsing the copy of the judgment where fees are declined) had not been observed in this case.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
AIR 1951 Madh Bha 61 Referred by respondents to support the proposition that an appeal not accompanied by a copy of the decree is incompetent and liable to dismissal under O.41 R.1 CPC. The opinion records that this authority was cited by respondents, but the court relied principally on the Supreme Court authority (AIR 1961 SC 832) and Rule 6 in resolving the case.
AIR 1949 EP 400 Referred by respondents for the same general proposition regarding the mandatory nature of filing a certified copy of the decree with the memorandum of appeal. The court noted the citation; it did not elaborate specific holdings from this report and determined the matter mainly by reference to AIR 1961 SC 832 and the factual circumstances.
AIR 1954 Mad 883 Referred by respondents as an authority supporting dismissal where the decree-copy was not appended to the appeal. The court acknowledged the citation but applied the principles distilled from AIR 1961 SC 832 and the General Civil Rules to the facts before it.
AIR 1945 Oudh 96 Referenced by respondents in support of the mandatory requirement to file a certified copy of the decree with the appeal. The opinion records the citation; the court did not expressly adopt specific language from this report and instead focused analysis on the Supreme Court authority and the office/Rule 6 failings in the present case.
AIR 1961 SC 832 The opinion quotes and summarizes key propositions from this Supreme Court decision:
  • When a decree is not drawn up immediately after judgment and an aggrieved litigant applies for certified copies before the decree is drawn up, the time for obtaining copies includes time for drawing up the decree itself.
  • Litigants should be protected against defaults or negligence of the court or its officers in discharging their duties.
  • Filing a certified copy with the memorandum of appeal is mandatory, but there is no single hard-and-fast rule; circumstances of each case must be considered. If the appeal was admitted through oversight of the office, the fair course is to adjourn the hearing and direct production of the certified copy when supplied.
 The court applied these propositions directly: because the appeal had been admitted through oversight and the decree-sheet was later produced in compliance with the adjournment, the court treated the appeal as properly presented on the original date and ordered that the matter proceed to merits (subject to payment of costs). The court relied on this authority to justify not dismissing the appeal for the procedural defect.

Court's Reasoning and Analysis

The court's analysis proceeded from the established legal position that, in general, an appeal without a copy of the decree appealed from is not competent under Order 41, Rule 1 CPC. However, the court examined the factual matrix and procedural conduct surrounding presentation and admission of the appeal.

Key factual observations that shaped the court's reasoning:

  • When the appeal was presented on 19-10-65 it was admitted by the office despite a clerk's note that the decree-copy was not appended; no objection was taken at that time.
  • When the appeal first came before the lower appellate court on 8-11-65, the appellant's counsel requested and was granted time to produce the decree-sheet; the adjourned date was 23-11-65, on which date the copy was produced.
  • There was no evidence that the decree-sheet did not exist or was not drawn up when the copy of the judgment was applied for.
  • The General Civil Rules (Rule 6) require the copying office to inform applicants that a copy of the decree is requisite and to endorse the copy of the judgment where the applicant declines to pay decree fees; no such endorsement appeared in the present file.

Legal synthesis and application:

  • The court emphasized that both the office and the counsel contributed to the procedural defect by admitting and presenting an appeal that lacked the decree-copy; it applied the equitable propositions in AIR 1961 SC 832 which protect litigants where the court or its officers have been at fault or where the appeal was admitted through oversight.
  • Given that the appeal had been admitted despite the defect and that the lower appellate court itself granted time for production — and the decree-sheet was produced on that adjourned date — the court held that the correct and fair course (as set out in the cited Supreme Court authority) was to treat the appeal as having been presented on the initial date and to proceed rather than dismiss for the procedural omission.
  • Because the statutory/formal procedure in Rule 6 had not been observed by the copying office (no endorsement certifying that the applicant was informed about the need for a decree-copy), the court found an additional reason to grant relief to the appellant.
  • The court therefore concluded that the issue was not one requiring condonation of delay: the appeal would be deemed to have been presented on 19-10-65, and the procedural course taken by the lower appellate court did not justify dismissal in the circumstances of this case.

Holding and Implications

Holding: Appeal allowed.

Direct consequences and implications for the parties:

  • The appeal was held to have been duly presented on 19-10-65 (the original presentation date) and will proceed to the lower appellate court for disposal on merits if the appellant complies with the costs order.
  • The appellant was ordered to pay costs of Rs. 32 to the respondents within one week; failure to pay that amount within the specified time will result in dismissal of the appeal.
  • There was no finding that condonation of delay was necessary in this matter, because the court treated the appeal as having been properly presented on the initial date due to the earlier admission through oversight and subsequent compliance by producing the decree-sheet on the date fixed by the court.

The opinion does not purport to announce a novel legal rule beyond applying the principles from the cited Supreme Court authority and enforcing the procedural requirements of Rule 6; its practical effect is to relieve the appellant from dismissal for the procedural omission in the particular factual circumstances described.

Show full summary ...

    Mst. Mali v. Lassi Thakur And Others

    1. A decree was passed against the appellant by the Munsiff Pulwama on 20-7-65. An appeal against that decree was filed before the District Judge Anantnag on 19-10-65. When the appeal was presented it was registered and the respondents and the lower court record summoned. There is a note at the foot of the order that the copy of the decree had not been appended with the appeal. The appeal came up before the learned lower appellate court on 8-11-65. On that date the respondents were not present. They were again summoned and it was recorded in the order that the appellants learned counsel wanted time to present copy of the decree. Time was granted to him to present copy of the decree-sheet. The case was adjourned to 23-11-65. On that date the copy of the decree-sheet was presented. Ultimately an objection was taken that at the time of presentation of the appeal, copy of the decree-sheet was not appended; hence the appeal was incompetent in terms of O. 41, R. 1 of the CPC. This preliminary objection prevailed with the lower appellate court which dismissed the appeal. It appears that on 23-11-65 an application for condonation of delay without an affidavit was presented in the lower appellate court. The lower appellate court dismissed the appeal holding that as a copy of the decree was not presented with the appeal, the appeal could not be entertained. It has further remarked that the appellant got the copy of the decree-sheet on 17-11-65, but he did not present it till 23-11-65. According to the lower appellate court he has not been able to explain the delay of six days and hence the order of dismissal of the appeal. I have heard the learned counsel for the parties. The learned counsel for the respondents laid great stress on the fact that it was obligatory for the appellant to present a copy of the decree-sheet at the time of presentation of the appeal. When an appellant does not do so, his appeal is liable to dismissal. In this connexion the learned counsel for the respondents referred me to a few authorities, namely, AIR 1951 Madh Bha 61, AIR 1949 EP 400, AIR 1954 Mad 883. AIR 1945 Oudh 96. The learned counsel for the appellant relied on an authority, AIR 1961 SC 832. The learned counsel for the respondents also relies on this authority. The appellant further relies on Rule 6 of the Civil Rules and Orders framed by this court.

    2. Before discussing the legal aspect of the case, it is necessary to bring to light certain factual features of the case. When the appeal was presented, no objection was taken that the appeal would not be entertained because it was not accompanied by a copy of the decree-sheet. Without a copy of the decree-sheet having been appended with the appeal, the appeal was registered and the respondents and the lower court file summoned. The note of the clerk that the copy of the decree-sheet was not with the appeal was not at all considered. Later on, when the appeal came up before the lower appellate court on 8-11-65, a request was made by the counsel for the appellant for permitting him to present the copy of the decree-sheet at some future time. This request was also granted by the court. The next date fixed was 23-11-65 On that date copy of the decree was presented.

    3. It is perfectly correct that an appeal without a copy of the decree against which the appeal has been preferred is not competent, but it seems that neither the courts nor the counsel applied themselves seriously to these provisions of the law. At the time of presentation of the appeal, the appeal was admitted by the Court and presented by the counsel without the copy of the decree-sheet having been appended. It is desirable that both the counsel and the courts should be more cautious and more alive to their duties. An illiterate litigant should not suffer because of the carelessness of either his counsel or the court.

    4. In this case both the court and the counsel have contributed to the present state of affairs. If the court had at the time of presentation of the appeal not admitted the appeal without a copy of the decree-sheet, the present difficulty would not have arisen. Or if the learned counsel who presented the Page: 21appeal had cared to fee that the memo of appeal was not accompanied with a copy of the decree-sheet, the difficulty could have been avoided. That is the factual aspect of this case.

    5. About the legal proposition enunciated by the learned counsel for the parties, as already stated in addition to the authorities cited by Mr. Raina on behalf of the respondents, both the learned counsel rely on the Supreme Court authority (supra). This authority (AIR 1961 SC 832) has laid down different propositions of law with respect to some of the matters involved in that case. “Where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and the decree before the decree is drawn up……the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself.” The second point decided in this case is that the litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duties. The third proposition laid down in this authority is that the requirement of filing a certified copy with the memo, of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent in this case their Lordships have laid down no hard and fast rule of general applicability for dealing with appeals under O. 41 R. 1 of the CPC. The circumstances of each case have to be taken into consideration. If at any 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. It is further laid down in this authority that 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 produce the certified copy of the decree as soon as it is supplied to him.

    6. In the present proceedings it is nobody's case that the decree-sheet was not prepared immediately after the judgment was pronounced or that no decree-sheet was in existence when the copy of the judgment was applied for. But the appellant has been encouraged by the conduct of the lower appellate court when on an imperfect appeal being presented before it on 19-10-65 it admitted the appeal without pointing out to the appellant that his appeal would be incompetent, without a copy of the decree sheet. The lower appellate court gave time to the appellant to produce copy of the decree-sheet and on the date fixed to which the case was adjourned the copy of the decree-sheet was presented. I am not impressed with the argument of the lower appellate court that the appellant deserves no consideration because he procured the copy of the decree-sheet on 17-11-65 and did not present the same till the 23rd. After the 17th the file of the appeal was put up before the lower appellate court for the first time on 23rd November. On that date the decree-sheet was presented. Therefore on facts as disclosed in this appeal the observations of their Lordships of the Supreme Court in AIR 1961 SC 832 (supra) to the effect that the appeal once having been admitted through the oversight of the office, the only fair and rational course to adopt would be to adjourn the hearing of the appeal with the direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him apply to this case.

    7. There is a further difficulty in the way of the respondents. Rule 6 of the General Civil Rules lays down as under:

    “Order 41, R. 1 of the CPC provides that the memorandum of appeal shall be accompanied by a copy of the decree appealed against, and (unless the appellate court dispenses therewith) of the judgment on which it was founded.”

    8. Para 2 of this rule lays down that “when an application is made for a copy of a civil judgment for the purpose of appeal, the applicant should always be informed that a copy of the decree is also requisite. If the applicant declines to pay the necessary fees, for the decree-sheet, in that case the officer in charge of the copying department has to endorse a certificate on the copy of the judgment supplied to the applicant to the effect that he was duly informed that a copy of decree was requisite, and after being so informed declined to pay fees for the same.”

    9. This is an important rule and to my knowledge these formalities which have the force of law are not being observed by courts in charge of civil cases. No such endorsement appears on the copy of the judgment presented in the case before the lower appellate court. Therefore in my opinion this is a fit case where this appeal should succeed. There is no question of condonation of delay in this case. The appeal will be deemed to have been presented on 19-10-65 when it was actually presented without a copy of the decree-sheet. The court by an act of indulgence to the appellant gave him time to produce copy of the decree-sheet and when the decree-sheet was produced in pursuance of the order of the court, the appeal will be deemed to have been presented on the initial date of presentation. Therefore the question of condonation of delay is foreign to this case. But one thing is very clear that the appellant has been very careless and negligent, may be due Page: 22to his ignorance or inattention, and for that he has to thank himself and none else. For his negligence he must pay costs to the respondents. The appellant will therefore pay a sum of Rs. 32 as costs to the other side within a week from today, otherwise the appeal shall stand dismissed. If the costs are paid, the appeal shall go to the lower appellate courts for disposal on merits.

    HK/CSJ/D.V.C

    10. Appeal allowed.

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    Comments

    Mst. Mali v. Lassi Thakur And Others
    (May 9, 1967)