K ALAGAPPAN PADAYATCHI Vs. V ALAGAPPAN PADAYATCHI

JUDGEMENT

(1.) THE prayer in this petition is as follows: "for the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon'ble Court may be pleased to condone the defective presentation of the above C. R. P. SR. No. 40117 of 1996 in not filing the certified copies of the order and the decretal order in i. A. No. 635 of 1995 in O. S. No. 123 of 1995 on the file of the District Munsif court, Kerranur, Pudukottai District, at the time of presentation of the C. R. P. SR. No. 40117 of 1996 and condone the delay of 372 days in filing the above order and decretal order and pass such further or other orders as this Hon'ble court seem fit and proper. "

(2.) FROM the records, it is seen that the civil revision petition is filed against the order and decretal order dated 13. 11. 1995 on the file of the District Munsif-cum-Judicial Magistrate, Keeranur. That was an application filed under Order 6, Rule 17 of the Code of Civil Procedure by the plaintiff to amend the plaint. In this order I am not going into the merits of the order challenged in the revision. The records show that the revision itself came to be filed before this Court on 18th of June, 1996. The Registry returned the papers for the first time on 5. 7. 1996. One of the returns is "certified copy of the order and decretal order in I. A. No. 635/1995 should be filed". The second return was on 15. 7. 1996; the third return was on 8. 10. 1996 and the fourth return was on 12. 3. 1997. FROM the second and third returns referred to above, it is noticed that the requirement of the filing of the certified copies of the order and the decretal order had not been complied with. The records further show that the certified copy of the petition and order dated 13. 11. 1995 in I. A. No. 635 of 1995; certified copy of the decretal order dated 13. 11. 1995 in I. A. No. 635 of 1995 and the certified copy of the order dated 13. 11. 1995 came to be filed on 24th June, 1997 before this registry. Thereafter, the Registry returned the papers once again on 12. 6. 1997 containing the following directions among other returns: "affidavit and petition to condone the defective presentation of C. R. P. in not filing the certified copy of order and decretal order in I. A. No. 635/1995 at the time of presentation of C. R. P. should be filed. " To comply with this requirement of the Registry of this Court alone, CM. P. No. 12805 of 1997 has come to be filed. Therefore one thing is clear i. e. , on the date when the Civil Revision petition was filed, the certified copy of the order and the certified copy of the decretal order in I. A. No. 635 of 1995 in O. S. No. 123 of 1995 on the file of the District Munsif-cum-Judicial Magistrate, Keeranur were not filed.

(3.) AS already noticed by me, the revision petitioner had the certifiedcopy of the three orders which he filed before this Court even on the day when he filed the civil revision petition. Even at the earliest point of time after presentation viz. , on 5. 7. 1996 itself, the Registry had found out this defect and pointed out the same to the Counsel who had entered appearance for the revision petitioner. However the certified copy of the proceedings challenged in this revision came to be filed only on 24. 6. 1997. When that being so, and in view of the several judgments referred to above, I am of the firm opinion that on the day viz. , 18. 6. 1996, when the civil revision petition came to be filed before this Court, it was not validly presented and it was liable to be rejected on that sole ground alone. In other words, the revision before this Court on 18. 6. 1996 was totally an incompetent one as the law requires the filing of the certified copy of the decree and the order/judgment challenged in this revision along with the memorandum of grounds of revision. However as the revision papers were under the processing stage, during which time the revision petitioner was directed to comply with the defect pointed out viz. , the non-filing of the certified copy of the proceedings of the Court below, those certified copies of the proceedings came to be filed on 24. 6. 1997. Under these circumstances, the date i. e. , 24. 6. 1997 is the day on which it could be said that the civil revision petition came to be properly instituted before this Court. In that situation it looks clear that there is delay in filing the civil revision petition itself and necessarily a petition under Section 5 of the limitation Act, as this revision arising under Section 115 of the Code of Civil procedure, has to be filed. This appears to be the view of the Hon'ble Supreme court of India in its judgment reported in Shakuntala Devi Jain v. Kuntal kumari, A. I. R. 1969 S C 575 : 1968 (II) SCWR 489. In that case, the appeal was filed in the High Court on 17. 3. 1967 without the certified copy of the order, to dispense with an application was on record. The appeal was registered and on 25. 10. 1967, an objection was raised by the other side about the competency of the appeal without the certified copy of the order. This was followed by an application under Section 5 of the Limitation Act and the filing of the certified copy of the order itself on 6. 11. 1997. The High Court rejected the appeal as incompetent as it was not accompanied by a certified copy of the order and there was no sufficient ground for condoning the delay in filing the copy as well. The Hon'ble Judges posed the following questions to themselves for consideration: "whether the delay in filing the appeal should be condoned under Section 5 of the Limitation Act"" On facts, the Hon'ble judges found that the application under Section 5 of the Limitation Act should be allowed.