TOWN AREA COMMITTEE Vs. NABIR JOO RESHI

JUDGEMENT

(1.) THIS is defendants second appeal and arises out of a suit filed by the plaintiff for the recovery of damages to the extent of Rs. lOOO/ - against the Town Area Committee, Anantnag defendant. The trial court of Subordinate Judge, Anantnag decreed the plaintiffs suit. On appeal the District Judge remanded the case to the trial court for fresh decision in the light of the observations made in his judgment. The trial court raised fresh issues as desired by the District Judge and, after going through the entire evidence led by the parties, again decreed the suit in favour of the plaintiff. The defendant went up in appeal before the Additional District Judge and along with the memorandum of appeal filed a copy of the decree and of the judgment on which the decree was founded. An objection was raised before the lower appellate court that the copy of the previous judgment of the trial court which formed part of its subsequent judgment was not filed with the memorandum of appeal and, therefore, the appeal was not properly presented. This objection found favour with the lower appellate court and it dismissed the appeal for want of proper presentation. The defendant has come up in further appeal to this court and it is argued that the lower appellate court has erred in holding that the appeal was not properly presented.

(2.) IT is true that the trial court had remarked in its judgment under appeal that the previous order dated 18 -11 -2007 would form part of its judgment The question for consideration before the lower appellate court was whether it was necessary for the defendant appellant to file a copy of the previous order along with the memorandum of appeal and failure to do so amounted to improper presentation of the appeal.

(3.) THE provision of the Civil Procedure Code governing this matter is to be found in O. 41, R. 1 which lays down that the memorandum of appeal shall be accompanied by a copy of the decree appealed from and (unless the appellate court dispenses therewith) of the judgment on which it is founded.