SRI. FINNN Vs. SMT. GIANU AND ANR.

JUDGEMENT

(1.) IN this second appeal a preliminary objection has been taken that the appeal is time barred as the copy of the judgment of the Court of first instance was not submitted alongwith memorandum of appeal. The facts, giving rise to the dispute may briefly be stated. The learned Subordinate Judge, Hamirpur decided the suit on 29 -6 -1969 and thereafter on 2 -8 -1969 the first appeal was preferred before the District Judge. The Appellant applied for a copy of the judgment of the District Judge on 25 -8 -1969 and the said copy was ready on 4 -10 -1969. In this manner he got 40 days for preparation of that copy. Thus the limitation for filing second appeal extended upon 10 -12 -1969. It was filed in the High Court on 8 -12 -1969, that is to say well within time. However, the defect pointed out in the memorandum of appeal was that a copy of the judgment of the trial Court was not filed alongwith it. Accordingly on 2 -12 -1969 under CMP. No. 488 of 1969 the Appellant prayed to the learned Judge for dispensing with the filing of that copy. Mr. Justice Safeer ordered on that application on 23 -12 -1969 that the copy of the judgment of the trial Court may be filed within the period of limitation. The learned Judge was obviously never informed that the limitation had expired on 10 -12 -1969 and he was making the order on 23 -12 -1969. The learned Counsel submits that in view of this defect in the order it should be taken that the learned Judge had dispensed with the filing of the copy of the judgment of the trial Court. When the period of limitation had expired, it was physically impossible to file the copy within the period of limitation. Therefore, it is reasonable to hold that the learned Judge had dispensed with the filing of the copy of the judgment of the trial Court, or, at any rate, the said copy could be filed for convenience of the Court no sooner it was obtained. The Appellant has produced that copy on 16 -3 -1970 after making a fresh application for that copy on 18 -12 -1969. There is a letter dated 22 -10 -1969 by the Counsel of the Appellant to the Superintendent, Copying Department, and this letter indicates that as long back as in August, 1969 a request was made for supplying copy of the judgment of the trial Court. This letter indicates that genuine efforts were made by the Appellant to procure a copy of the judgment of the trial Court well within time. That will be a circumstance to condone the delay in applying for the copy and even for filing the appeal in case the second appeal is held incompetent on 8 -12 -1969.

(2.) AN interesting controversy arose as to the enforceability of Rule 2(b) of Chapter -IA of Vol. v. of the Rules and Orders of the Punjab High Court (applicable to the Himachal Pradesh High Court). It was contended by the Appellant that the said rule is neither statutory nor mandatory while it is contended on behalf of the Respondents that the said rule is both statutory and mandatory. Reference in that connection is made to Order 41, Rule 1, Code of Civil Procedure, which clearly does not lay down that a copy of the judgment of the trial Court has got to be filed alongwith the copy of memorandum of appeal. In fact what is required to be filed in Court in second appeal under that provision will be the decree appealed from, and unless the appellate Court dispenses therewith the judgment on which it is founded. Those two documents are obviously the judgment and the decree of the Court of the District Judge, and the said two documents were no doubt filed alongwith the memorandum of appeal. Therefore, strictly speaking compliance was made of Order 41, Rule 1, Code of Civil Procedure, and the appeal was complete on 8 -12 -1969. The difficulty arises because of Rule 2(b) of Chapter IA of Vol. v. (ibid) because it lays down that a copy of the judgment of the trial Court must be filed alongwith grounds of appeal unless the same is dispensed with by the Judge. Firstly, the said copy has been dispensed with for the reasons stated by me above; secondly, to me it appears the rule is neither statutory nor mandatory. A Division Bench of this Court has held in CMP. No. 653 of 1975 arising from F.A.O. No. 6 of 1975 titled: Union of India v. Shri Vishwa Nath Sud and Anr. decided on June 6, 1975, that the rules of the Court other than those specified in Chapter XXI of Vol. I are neither statutory nor mandatory. The Division Bench was considering Clause (xv) of Rule 1 of Chapter III -B of the Rules of the Court, and held that the said clause was neither statutory nor mandatory. A similar view can be taken for Rule 2(b) of Chapter I -A of Vol. v. which is sought to be applied in the present case. In view of that Division Bench decision of this Court, it is not difficult to hold in the present case that the said rule is neither statutory nor mandatory. As such non -compliance of the said rule shall not make the memorandum of appeal incompetent on 8 -12 -1969.