PURAN SINGH Vs. JAGTAR SINGH

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeals Nos. 296 and 741 to 743 of 1985, as the question involved is common in all the cases.

(2.) The facts giving rise to Regular Second Appeal No. 296 of 1985, briefly, are that Jagtar Singh, plaintiff-respondent, got a decree for permanent injunction restraining the defendant-appellant from dispossessing him from the suit land otherwise than in due course of law from the trial Court on November 11, 1983 The defendant filed the appeal on November 14, 1983. Along with the memorandum of appeal, a certified copy of the judgment of the trial Court dated November 11.1983, was filed. Since a copy of the decree-sheet was not made available till then, a note was given on the memorandum of appeal that a copy of the decree-sheet was not filed therewith as the same had not been supplied till then. The appeal was duly entertained by the office and on November 15,1983. the learned Additional District Judge passed the following order -

(3.) The learned counsel for the appellant contended that once the appeal was duly admitted and registered by the lower appellate Court, then, subsequently it would not be dismissed for non-compliance of O.XLI, R.1 of the Code particularly when at the time of the filing of the appeal, it was brought to the notice of the Court by making an endorsement on the memorandum of appeal to the effect that a certified copy of the decree-sheet was not being filed with it as the same was not made available. The learned counsel further contended that at the time of the filing of the appeal, the same could be rejected or returned to the appellant as contemplated under O.XLI, R.3 of the Code. Once it was admitted to hearing, then, it could not be rejected on that score. In support of the contention, the learned counsel relied upon Jagat Dhish v. Jawahar Lal, AIR 1961 SC 832. The learned counsel also referred to sub-rule(2) to R.12 Chapter 17. Rules and Orders of the Punjab High Court, Volume IV (as corrected up to January. 1966 under which it was incumbent upon the Copying Agency to supply a copy of the decree-sheet along with the certified copy of the judgment, and to the Division Bench judgment of this Court in Somnath Puri v, Smt. Sarda Puri. 1980 Hindu LR 98. On the other hand, the learned counsel for the respondent submitted that R.1,0. XLI of the Code is mandatory and the non-compliance thereof was fatal and, thus, the appeal was rightly dismissed as not maintainable by the lower appellate Court.