BHAGWAN DASS GUPTA Vs. MUKAT LAL

JUDGEMENT

(1.) The practice of this Court regarding presentation of second appeals, as laid down in Chapter I of Volume V of the Rules and Orders of this Court, is as follows:- PART A. Paragraph 2 (b): Every memorandum of appeal shall be accompanied by copies of the decree and judgment, as prescribed by Order XLI, Rule I of the Civil Procedure Code. In the case of Second Appeals, in addition to the documents prescribed by Order XLI, Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the Court of First instance unless the appellate court dispenses therewith. PART E, Paragraph 2: When a memorandum of appeal, cross-objection, petition or application in any proceeding in the High Court contains an assertion of any fact or facts contrary to or outside the record or not supported by evidence already on record, such assertion shall be supported by one or more affidavits. PART E, Paragraph 6: When upon any application any evidence is to be given, such evidence shall ordinarily be given by affidavit as provided in Order XIX? Rule 2 of the Code of Civil Procedure, and not otherwise, unless by an order of a Judge or Bench. Explanation:-Evidence given in support of any of the following or similar applications should be given by affidavit unless otherwise ordered: - (a) applications to admit an appeal or application which is prima facie barred by time.

(2.) The above practice is in accordance with the following provisions of law: Rule 2 was added to Order 42 Civil Procedure Code by the Punjab High Court. This rule applies to this Court in view of section 7 of the Delhi High Court Act 1966 (as to which reference may be made to Radhey Shyam v. Bawa Joginder Singh. Rule 2 is as follows:-

(3.) Under Article 1 16 of the Schedule to the Limitation Act the period of limitation for filing an appeal to the High Court is 90 days. Out of this period the time spent by the appellant in obtaining a certified copy of the decree.and the judgment appealed against is to be excluded under sub-sections (2) and (3) of section 12 of the Limitation Act. But the time spent in obtaining the judment of the Court of the first instance cannot be excluded from the computation of the period of limitation for filing the second appeal as neither section 12 of the Limitation Act nor any other provision of law provides for such exclusion. The majority of the High Courts have also added Rule 2 to Order 12 to require that in all second appeals a copy of the judgment of the Court of the first instance shall accompany the memorandum of second appeal in addition to the copy of the decree and judgment appealed against, as required by Order 41 Rule I Civil Procedure Code Copies must be certified copies as they alone can prove the contents of the judgment and decree, which are public documents in view of sections 76 and 77 of the Evidence Act.