MOTI LAL Vs. ONKAR

JUDGEMENT

(1.) This second appeal filed against the concurrent findings of the Asstt. Collector Kota, dated 26 -6 -61 and Revenue Appellate Authority, Kota, dated 31 -10 -62 must fail on the basis of the preliminary objection raised by the counsel for the respondents who has argued that the learned Revenue Appellate Authority should not have gone into the merits of the appeal filed by the aggrieved appellant in his Court as the same was defective and, therefore, not maintainable. He has indicated that a reference to this effect was made by the learned Revenue Appellate Authority in his impugned order. Nevertheless, the learned Revenue Appellate Authority proceeded to examine the appeal on merits and dismissed the same. A perusal of the reference made by the learned Revenue Appellate Authority, unambiguously, shows that he found the appeal unaccompanied by a copy of the decree and held that the appeal was liable to be dismissed on account of this defect. The learned counsel for the appellant had raised the plea that the decree was not prepared in the lower court and, therefore, a copy of the same could not be filed. But the learned Revenue Appellate Authority did not accept this statement as it found the decree on the record of the lower Court. It was, however, observed that no objection had been raised by the respondents in respect of this defect. Evidently, this weighed with the learned Revenue Appellate Authority who proceeded to examine the appeal on merits.

(2.) It has been contended by the learned counsel for the respondents that Rule 17 of the Rajasthan Revenue Courts Manual, Part I, is mandatory and requires that every memorandum of appeal or application for revision shall be accompanied by a copy of the decree or order against which the appeal or application is directed, provided that the Court may for sufficient cause shown, dispense with a copy of such formal order. The facts of the present case are that the judgment of the lower court was delivered on 26 -6 -61 and the appeal was filed on 18 -12 -61 in the Court of the learned Revenue Appellate Authority. The appellant did not apply for a copy of the decree. The office of the learned Revenue Appellate Authority pointed out that the copy of the decree had not been attached with the appeal, on 22 -12 -61. There is a note signed by the counsel for the appellant dated 18 -12 -61, appended to the memo of appeal, that a copy of the decree has not been attached as the decree has not so far been prepared. The order sheet for the 26th December, 1961, when the appeal was presented before the learned Revenue Appellate Authority, shows that the case was adjourned to 18 -1 -62 for the removal of the defects. On 18 -1 -62, again, the learned counsel for the appellant averred that a copy of the decree could not be filed as the same had not been prepared in the lower court. The court, thereupon, ordered the file to be sent for and fixed the case for 24 -3 -62 adding that the question of limitation would first be taken up on that date. The arguments were, however, heard on 18 -10 -62, and orders announced on 31 -10 -62 whereby the appeal was dismissed. It was averred on behalf of the counsel for the respondents that the respondents had duly obtained a copy of the decree on 28 -8 -61 and onus was, therefore, on the appellant to prove that he had duly applied for a copy of the decree which was prepared on 26 -6 - 61. In this connection, the learned counsel for the respondents invited a reference to Jagatsingh Bhargava vs. Jawaharlal Bhargava and others (AIR 1961 Supreme Court, 832) which lays down the law in respect of the concession which may be granted to an appellant when he fails to comply with the mandatory provision of the rule requiring a copy of the decree to be filed with the memo of appeal. Their Lordships were pleased to observe that where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and the decree before the decree is drawn up, as he has done all he could and has made a proper application for obtaining the necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. It was laid down that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed and the appropriate orders should be passed having regard to the circumstances of each case. It was held that the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. Where the requirement to file a certified copy of the decree along with the memo of appeal is mandatory, in the absence of the decree the filing of the appeal would be incomplete, defective, and incompetent. True, that it would not be reasonable to penalise a party for the default of the office but where the default rests with the appellant as in the present case, the appeal would attract the bar of limitation, even though limitation has not been set up as a defence. In this connection, the learned counsel for the respondents sought reliance on Balmukand vs. Board of Revenue (1961 RLW 517) also.

(3.) The learned counsel for the appellant was given an opportunity to show to the satisfaction of the Court that all measures which could possibly be taken, had been taken by the appellant to justify that the rule could be relaxed in his favour. The learned counsel for the appellant conceded that the appellant had laboured under the misconception that the decree had not been drawn up and had not, therefore, applied for a copy of the decree. Obviously, this default must prove fatal to the appeal.