UNION OF INDIA Vs. TEJ SINGH

JUDGEMENT

(1.) UNION of India and others have filed Civil Second Appeal No. 3 of 1988 against the judgment and decree of District Judge, Jammu dated June 91988 in which case this court issued notice to the respondent to show cause as to why the appeal be not admitted. The respondents took preliminary objection regarding the appeal barred by time as filed after the expiry of period of limitation. This application has been filed on behalf of the appellants for condoning the delay in filing the appeal. It is mentioned in the application that the petitioners were under bonafide impression that judgment had been passed on 9th of June, 1988 whereas actually it was passed on June 8, 1988. According to them they applied for obtaining the copies of the judgment and decree which were delivered on September 10, 1988 and they thus prayed for condoning the delay of two days in filing the appeal.

(2.) THE respondent in his objection opposed to the above said application and in his objection he has averred that the appellants filed an application for issuance of copies of judgment and decree of June 9, 1988 in which they clearly mentioned the date of judgment and decree as June 8, 1988 and also in the prayer part of the Memorandum of Appeal they have given the said date as June 8, 1988 and as such the plea raised by them is without any basis. He has further stated in the objection that Memorandum of appeal was presented by the appellant in the Registry on June 9, 1988 un -accompanied by copies of the decree and judgment and they filed such copies of decree and judgment with the clerk of the Registry on June 10, 1988 without moving any application seeking permission of the Court.

(3.) I have heard the learned counsel for the parties. The first point which requires consideration in this case is as to what will be the effect of the filing of the appeal by the appellant un -accompanied by the copies of judgment and decree. Mr. D.P. Gupta, learned standing counsel for Union of India in this regard has argued that the appellants received copies of the judgment and decree on September 10, 1989 and they produced the same before the court and the Court by issuing notice in the Memo of appeal dispensed with, the filing of such copies at the time of presentation of appeal. In support of his contention he has referred to AIR 1968 J&K page 19. Mr. Malik learned counsel for the respondent has however, contended that under order 41 Rule 1 Civil Procedure Code the appeal is required to be accompanied by copies of judgment and decree and while the Court has power to dispense with the filing of the copy of judgment it cannot dispense with the filing of the copy of the decree According to him even the court in the present case did not dispense with the filing of the copy of the judgment.