OOMMEN Vs. MORAN MAR BASELIUS MAR THOMA MATHEWS

JUDGEMENT

(1.) The plaintiffs in O. S. No. 105 of 1980 of the Subordinate Judge's Court, Mavelikkara have filed the above appeal in this court on 5-11-1983. The Registry pointed out certain defects. One of them was that the appeal is filed out of time. The papers were returned for curing the defects on 22-11-1983. The Advocate appearing for the appellants represented the appeal with the following endorsement: "The above appeal is filed along; with an application to receive the same to file. The above application may be sent to the Bench for orders. Other defects are cured." The application referred to is C M. P. No. 32544 of 1983. It is supported by an affidavit of the 5th appellant the 5th petitioner in the C. M. P. The affidavit is dated 4th November, 1983. The prayer in the petition is to receive the above appeal to file and to grant such other reliefs that are just and proper. It is seen from the endorsement in the appeal memorandum that along with the appeal, the appellant produced a printed copy of judgment, bearing the seal of the lower court, a certified copy of the decree of the lower court and a petition to receive the appeal to file. It is conceded that if the dates given in the certified copy of the decree filed along with the appeal are looked into, the appeal is patently barred. Petitioner's counsel Mr. P. N. Krishnankutty Achan stated that for the reasons stated in the affidavit filed in support of C. M. P. No. 32544 of 1983, the appeal is not barred. O. S. No. 105 of 1980 was tried and heard along with O. S. No. 21 of 1979. The learned Subordinate Judge, Mavelikkara passed a consolidated judgment in the two suits dated 27th of August, 1982. It is the petitioner's plea that the printed copies of the judgment rendered in the case was applied for by the plaintiffs in the other connected suit, O. S. No. 21 of 1979, and so the appellants (Plaintiffs in O. S. No. 105 of 1980) were led to believe that it would not be necessary to obtain the printed Copies of judgment separately in O. S. No. 105 of 1980. It is further averred that the appellants bona fide thought that the copies that would be made available to the plaintiffs in O. S. No. 21 of 1979 could be made use of by the petitioners for preferring their appeal. A printed copy of the common judgment in O. S. No. 21 of 1979 and O. S. No. 105 of 1980 applied for, (without the relevant endorsement containing the various dates usually found in the certified copies of the judgments supplied by Courts or Tribunals) was also filed on 5-11-1983. It is stated that "the plaintiffs in O. S. No. 21 of 1979 filed an appeal in this Court on 31-10-1983. If the papers from the Registry are verified, that will be evident. This court could do so and on that basis for the reasons stated above, the appeal filed may be received to file. Mr. Achan placed reliance on S.12(2) of the Limitation Act, and argued that the time taken for obtaining the certified Copy of the judgment (though obtained by another and not by the present appellants) should be excluded. This petition is opposed by the respondents in the appeal who are respondents in this Civil Miscellaneous Petition. The contentions of the respondents are similar. On behalf of the 1st respondent, Mr. T. S. Venkateswara Iyer contended that the appeal is prima facie barred by time. Along with the appeal, a certified copy of the decree alone was filed, which no doubt contain the relevant dates. If those dates are looked into, the appeal is filed out of time. The certified copy of the judgment produced admittedly obtained by the plaintiff in O. S. No. 21 of 1979, and not by the appellants herein, and produced along with the appeal, does not contain the relevant dates. There is nothing seen from the papers filed along with the appeal that the appeal has been filed within the time permitted by law. The various averments stated in the affidavit filed in support of C. M. P. No. 32544 of 1983 are not correct. The respondents have sworn to a counter affidavit in that behalf dated 25th of January, 1984. It is said that the appellants filed an application in the lower court to obtain a certified copy of the judgment but since they did not produce the required sheets, the said application was dismissed. It is contended that the reasons stated by petitioners, for not filing a certified copy of the judgment to show that the appeal is filed within time, does not merit any consideration. The question as to whether the appeal is filed within the time allowed by law should be decided, only with reference to the judgment and / or/decree filed along with the appeal. On that basis, the appeal filed herein is patently time barred. The petitioners cannot take advantage of the certified copy obtained by the plaintiffs in the other case - O. S. No. 21 of 1979. The plaintiffs in this suit, O. S. No. 105 of 1980, themselves should have filed an application for obtaining a certified copy of the judgment to be appealed against and should have filed such copy along with the appeal. Even assuming, that a certified copy obtained by the plaintiffs in O. S. No. 2l of 1979 can be taken advantage of by the plaintiffs in this suit, such certified copy of the judgment produced along with the appeal should on the face of it show with reference to the relevant dates, that the appeal is filed within time. Admittedly, the certified copy of the judgment, produced in this case, will not show the relevant dates as specified by the rules. It is not open to the petitioners to contend that the appeal has been filed in time or that the appeal should be taken to file. Mr. T. P. Kelu Nambiar, Advocate who appeared for the 2nd respondent, Mr. C. K. Koshy, Advocate who appeared for the 3rd respondent and Mr. P. Karunakaran Nair, Advocate who appeared for the 5th respondent supported the above contentions of Mr. T. S. Venkateswara Iyer.

(2.) An adjudication of the rival contentions raised in this case require a perusal of the relevant provisions of O.41 R.1 of the Civil Procedure Code, R.239, 253, 254 and 269 of the Civil Rules of Practice, and S.12(2) of the Limitation Act, 1963.

(3.) The fundamental question that arises in this case is whether a person who wants to file an appeal from the judgment of the lower court to this court, can take advantage of the certified copy obtained not by him, but by somebody else Under O.41 R.1 the memorandum of appeal shall be accompanied by a copy of the decree appealed from and unless the appellate court dispenses therewith, of the judgment on which it is founded. R.239 and 254 of the Civil Rules of Practice contain the relevant provisions for obtaining certified copies. The certified copy shall bear an endorsement initialled by the Examiner showing the following particulars: