PRATIVA BALA MITRA Vs. GOUR LAL MITRA

JUDGEMENT

(1.) This appeal came into our list out of its turn, because it was mentioned that it was a short appeal and that the question being the provision of residential accommodation for a Hindu widow out of the estate of her father-in-law, it was necessary that the matter should be disposed of at an early date. We acceded to that prayer, but as the hearing commenced it soon transpired that the appeal was not going to be a very short appeal at all. The litigation of which this appeal represents the last chapter has had a long and chequered history and, therefore, considerable time was spent in taking us through the various stages of the dispute between the parties. The appeal was heard on the 7th, 14th, 20th and 21st of the present month. On the last date, the learned Counsel for the Respondent commenced his reply with an objection that the matter agitated by the Appellant in this appeal was concluded by res judicata because, apart from the Respondent's application out of which the present appeal has arisen, the Appellant had made an application of her own to the same learned Judge and her application in which the identical matter was in issue had been dismissed on the same date and by. an order made earlier. The contention was that no appeal having been preferred from the order dismissing the Appellant's own application, the matters decided thereby had become final and that, if it had become final, there was no point left which the Appellant could canvas in the present appeal. To that objection the Appellant's Advocate gave a rather strange reply and it was that there was still time to prefer an appeal from the order dismissing the appeal from the order dismissing the Appellant's application. The order was passed as long ago as on September 25, 1957. Asked how it could be that the Appellant could still be in time to prefer an appeal from that order, the learned Advocate stated that, although a requisition for a certified copy marked 'for appeal' had been put in as soon as the order had been passed, the folios necessary for furnishing the certified copy had not yet been marked. The position before us, however, was that no appeal had yet been preferred, from the order passed on the Appellant's own application and the fact that the Appellant could still file an appeal might not be relevant. As, however, it seemed to us to be rather extra-ordinary that the folios should not have been marked for such a length of time we directed the office to make a report on the matter and a report has been made. It is stated by the office that no certified copy of any order or decree can be supplied till the decree or order has been filed and the copying department cannot possibly become aware whether a decree or order has or has hot been filed, unless it is informed. There has accordingly grown up a practice and it is now a practice of very long standing that immediately after a decree or order is filed, a party who has put in a requisition for a certified copy informs the copying department of the fact and then the copying department proceeds to mark the folios. The office has reported that in the present case, after the requisition had been put in no further steps had been taken till the 20th instant when for the first time the copying department was informed that the order had been filed. I must, however, place it on record that according to the learned Advocate for the Appellant his clerk had made enquiries on earlier dates as well.

(2.) The further hearing of the appeal was adjourned till this morning in order that a report from the office might be obtained. I have already indicated the nature and contents of the report. The learned Advocate for the Appellant states that, in the meantime, he has succeeded in presenting an appeal from the order made on the Appellant's own application. Whether or not that appeal will be treated as one filed in time is a question which is bound to arise and another question undoubtedly will be whether even if the appeal be ultimately admitted, the bar of res judicata can be avoided by the filing of an appeal in the circumstances I have already recited. These are not matters which can be gone into at the present state, because before it can be held that the Respondent's plea of res judicata has been met by the filing of the other appeal, assuming it can be met by such an appeal in law, it will have first to be decided whether that appeal has been properly filed and filed in time. That question is not before us at all and accordingly we find that we cannot proceed with the present appeal any further.

(3.) Since no appeal from the order passed on the Appellant's own application had been preferred and the Appellant as well as her legal advisers were aware of it and since the question of res judicata was bound to be raised, it appears to me to be inexcusable that the appeal should nevertheless have been mentioned for being heard out of its turn and that a waste of so much of the Court's time should have been caused. In my view, although we cannot dispose of the appeal because of the circumstances which have arisen, it is clear that the Appellant must in any way be made responsible for the costs of the present hearing which she forced on the Respondent as well as on the Court to, as it now appears, no purpose at all.