RAGHAVA KURUP Vs. JANARDHANAN

JUDGEMENT

(1.) The above Second Appeal is preferred by the 3rd defendant in O. S. No. 419 of 1977 of the Munsiff's Court, Kozhikode under S.100 read with O.42 R.1 of the Civil Procedure Code. The memorandum of Second Appeal filed on 16-12-1983 was returned by the Office with an endorsement that copies of documents Exts. B1, B3, B27, B28 and B29 were not filed. Five days were allowed for filing the copies of the said documents. This is borne out from the endorsement dated 13-1-1984. The papers were , returned on 16-l-1984. On 18-1-1984 the appeal memorandum was represented by the appellant's Advocate. A memo dated 17-1-1984 was filed along therewith. It is contended that the requirement to file copies of the documents was inserted in O.42 R.2(2) by Kerala Government Notification No. 23 of 1959, that Civil Procedure Code was amended by Central Act 104 of 1976 with effect from 1-2-1977 and in view of S.97(J) of the Code of Civil Procedure Amendment Act 1976 (Act 104 of 1976) any amendment made or any provision inserted in the principal Act by the State Legislature or a High Court before the commencement of the amendment Act except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by the amendment Act shall stand repealed. It is contended that O.42 R.2(2) as introduced by the Kerala amendment before the commencement of the amending Act is inconsistent with O.42 R.2 introduced by amending Act 104 of 1976. In so far as O.42 R.2, as introduced by Central Act 104 of 1976, does not require the presentation of filing copies of documents along with the memorandum of appeal, which are referred to in the grounds of appeal, it is not necessary to produce the copies of such documents. Since this is a matter of procedure, notice was issued to the President, Kerala Advocates Association, Mr. T. P. Kelu Nambiar, who argued the matter. I am thankful to him for the assistance rendered in these proceedings. Counsel for the appellant Mr. P. N. Krishnankutty Achan was also heard in the matter.

(2.) The relevant statutory provisions which call for interpretation may be looked into. O.42 of the Code of Civil Procedure as it existed before the amendment Act, Act 104 of 1976, along with the Kerala Amendment Act is to the following effect:

(3.) O.42 of the Code of Civil Procedure as amended by Central Act 104 of 1976 is as follows: