MALI Vs. LASSI THAKUR

JUDGEMENT

(1.) A decree was passed against the appellant by the Munsiff Pulwama on 20 -7 -65. An appeal against that decree was filed before the District Judge Anantnag on 19 -10 -65. When the appeal was presented it was registered and the respondents and the lower court record summoned. There is a note at the foot of the order that the copy of the decree had not been appended with the appeal. The appeal came up before the learned lower appellate court on 8 -11 -65. On that date the respondents were not present. They were again summoned and it was recorded in the order that the appellants learned counsel wanted time to present copy of the decree. Time was granted to him to present copy of the decree -sheet. The case was adjourned to 23 -11 -65. On that date the copy of the decree -sheet was presented. Ultimately an objection was taken that at the time of presentation of the appeal, copy of the decree -sheet was not appended; hence the appeal was incompetent in terms of 0. 41 r. 1 Civil P.C. This preliminary objection prevailed with the lower appellate court which dismissed the appeal. It appears that on 23 -11 -65 an application for condonation of delay without an affidavit was presented in the lower appellate court. The lower appellate court dismissed the appeal holding that as a copy of the decree was not presented with the appeal, the appeal could not be entertained. It has further remarked that the appellant got the copy of the decree -sheet on 17 -11 -65 but he did not present it till 23 -11 -65. According to the lower appellate court he has not been able to explain the delay of six days and hence the order of dismissal of the appeal.

(2.) I have heard the learned counsel for the parties. The learned counsel for the respondents laid great stress on the fact that it was obligatory for the appellant to present a copy of the decree -sheet at the time of presentation of the appeal. When an appellant does not do so, his appeal is liable to dismissal. In this connection the learned counsel for the respondents referred me to a few authorities, namely, AIR 1951 MB 61, AIR 1949 EP 400, AIR 1954 Madras 383, AIR 1945 Oudh 96. The learned counsel for the appellant relied on an authority, AIR 1961 SC 832. The learned counsel for the respondents also relies on this authority. The appellant further relies on rule 6 of the Civil Rules and Orders framed by this court,

(3.) BEFORE discussing the legal aspect of the case it is necessary to bring to light certain factual features of the case. When the appeal was presented, no objection was taken that the appeal would not be entertained because it was not accompanied by a copy of the decree -sheet. Without a copy of the decree -sheet having been appended with the appeal the appeal was registered and the respondents and the lower court file summoned. The note of the clerk that the copy of the decree -sheet was not with the appeal was not at all considered. Later on when the appeal came up before the lower appellate court on 8 -11 -65, a request was made by the counsel for the appellant for permitting him to present the copy of the decree -sheet at some future time. This request was also granted by the court. The next date fixed was 23 -11 -65. On that date copy of the decree was presented.