JOGINDER PAL Vs. KRISHAN LAL

JUDGEMENT

(1.) This judgment will dispose of RSAs. Nos. 36 and 127 of 1982. The respondent Krishan Lal had instituted a suit impleading N.D.M.C. as the defendant and Joginder Pal as the second defendant. Against N.D.M.C. the relief sought was for declaration that the cancellation of stall No. 67 Municipal Market, Connaught Circus, New Delhi of which he was the allottee was mala fide and without jurisdiction, and against the second defendant he sought a decree for mandatory injunction directing the defendant to hand over peaceful possession of the shop to him. The suit was decreed against both the defendants. Both the defendants preferred separate appeals and the learned Add). District Judge dismissed both the appeals. During the pendency of the appeals before the Additional District Judge defendant Joginder Pal had filed two applications one under Order 6 Rule 17 of the Code of Civil Procedure and the other under Order 41 Rule 27 of the Code for additional evidence. Along with the second application, certain documents were also filed. Notice of the applications was given to the respondent herein. Replies to the applications were also filed. The applications were adjourned for hearing from time to time and finally to December 9, 1981. It appears that on that date, the applications as also the main appeals were heard. However no orders have been passed on the applications one way or the other. The impugned judgment also does not mention anything about the two applications.

(2.) I have looked into the applications and in my opinion, the applications required a considered decision by the learned Additional District Judge. In the circumstances, I have no option but to allow these appeals and send back the cases to the learned Additional District Judge for deciding the two applications and thereafter to dispose of and decide the appeals.

(3.) One main objection which has been taken by the learned counsel for the respondent in RSA No. 36 of 1982 filed by Joginder Pal is to the effect that certified copies of the impugned judgment as also of the trial court have not been filed along with the appeal. It appears that when the appeal was filed the certified copies were not available to the appellant and an application being CM 119/82 for granting exemption was filed by the appellant. The learned Single Judge, admitting the appeal, directed that the certified copies will be filed as soon as the same are available to the appellant. Till date the certified copies have not been filed. The appellant has moved an application in Court being CM 731/87 under Section 5 of the Limitation Act for condonation of delay infiling the certified copies. It is stated in the application that the appellant had asked the clerk of the counsel for the appellant to obtain the certified copies and file the same when they are made <PG>225</PG> able. The clerk left the services of the counsel somewhere in 1983 and has not been traced thereafter. The appellant bona fide believed that the certified copies were obtained and must have been filed. However, it transpired during the hearing of the appeal that the certified copies had not been filed. There is no doubt that this is a case of negligence but the question is whether it is a negligence of the appellant or his counsel ? Prima facie the negligence seems to be of the counsel. There could be no motive for the appellant not to file the certified copies of the judgments and decrees particularly when the appeal was filed well within the period of limitation. Normally I would have awaited the filing of the certified copies and then decided this application but in the circumstances of this case and in view of the fact that the other appeal filed by the NDMC is in order and both the appeals have arisen out of one suit, I am inclined to allow this application and condone the default of non-filing of the certified copies. The original judgments are, in any case, available to the court because the entire record is before this Court. The purpose of filing of certified copies of the judgment and decree is that the true and correct copy is available before the Court. In this case not only the certified copies are available in the connected appeal but the original record is also available. In any case, the order of remand can be made in view of the provisions of Order 41 Rule 33 also. I would prefer to exercise my power under Order 41 Rule 33 and give the benefit to the appellant Joginder Pal also since he is respondent in the appeal filed by the NDMC.