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Temjenkaba and anr. Vs. Imyachanga and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCase No. Civil Revision No. 4 (K) of 1980
Judge
ActsAdministration of Justice and Police in Nagaland Rules, 1937 - Rule 34; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27
AppellantTemjenkaba and anr.
Respondentimyachanga and ors.
Advocates:J.P. Bhattacharjee, W.A. Shishak and Zeire Angami, Advs.
DispositionPetition allowed
Excerpt:
.....pase 10 of the memo of appeal, wherein the date of receipt of the memo has been clearly recorded as 15-11-1977. as such, we have no hesitation in arriving at the conclusion that the appeal was filed on 15-11-1977, and, as such presented within the period of limitation prescribed under rule 34 of 'the rules'.the appellate court was wrong in assuming that the appeal was presented on 28-11-1977. this finding is not borne out from the records of the case. in consequence of the error, the appeal was not disposed on merit, and, the appellant was thrown out of court which has resulted in a failure of justice......the typewritten copy with the certified one and find that it is a replica of the certified copy. rule 34 of the rules requires filing of the petition of appeal 'accompanied by a copy of the order appealed against'.....rule 34 of the rules does not speak either expressly or by necessary implication that the copy must be a certified copy and no other class of copy. theword 'certified' in between the words 'by' and 'copy of the order' is not there. we cannot insert the word 'certified' which is not there. it would amount to addition of a word of great significance in 'the rule', which is not there nor could it otherwise be spelt out. we do not find why should the term 'copy' should be used in a restricted sense, meaning 'the certified copy' when admittedly the word is not there in.....
Judgment:

Lahiri, J.

1. This revision under Rules for the Administration of Justice in Nagaland, for short 'the Rules' is projected against the order passed by Mr. A. Sanmugam. Additional Deputy Commissioner, Mokokchung confirming the order passed by Mr. R. S. Bedi. Assistant to the Deputy Commissioner at Mokokchung. The present appellant preferred an appeal before the learned Additional Deputy Commissioner and also presented an application for adducing further evidence or 'additional evidence' in the appeal. The Appellate Court issued notices to the respondent-opposite parties. He dismissed the appeal in limine by the impugned order holding that the appeal was presented beyond the period of 30 days prescribed under Rule 34 of 'the Rules' and, therefore, the appeal was barred bv limitation. The learned Additional Deputy Commissioner also held that the appeal was incompetent as it was not accompanied by a certified copy of the judgment appealed against. The learned Additional Deputy Commissioner also rejected the prayer of the appellants for adducing 'additional evidence'.

2. Learned Advocate General. Nagaland, appearing for the petitioners submits that the impugned order cannot be sustained. Advocate-General has made a three pronged attack on the impugned judgment. The first contention is that the order of rejection of the application for adducing additional evidence was

bad as no cogent reason for rejection was assigned by the learned Deputy Commissioner. At any rate, the order was without jurisdiction as he had no jurisdiction to go into the merit of the application once he held that he had no jurisdiction to entertain the appeal. Secondly, the counsel contends that the appeal was palpably presented within the period of 30 days from the date of the decision and the learned Addl. Dy. Commissioner committed a fatal error of law apparent on the face of the records in concluding that the appeal had been filed beyond 30 days from the date of the decision and he points to the records to substantiate his submissions. The third contention is that a true copy of the judgment was filed along with the memo of appeal and in due course 'the certified copy' was filed and the same was also before the learned Additional Deputy Commissioner on the date of the final determination of the appeal, as such: the appeal was filed in conformity with the provisions of Rule 34 of 'the Rules'.

3. On perusal of the application for taking additional evidence, we find that the petitioners had desired to adduce additional evidence before the appellate court on a question of 'customary law'. It was a mixed question of law and fact. The customary law raised is interesting and worth consideration. However, it was for the appellate court to consider the application on merit and to dispose it by giving cogent reasons why it turned down the prayer. In the instant case, we do not find any cogent reason for rejection. An appellate court hag power to permit the parties to adduce additional evidence, if the court considers such additional evidence is necessary for just decision of the case. Therefore, it is entirely for the appellate court to allow or reject the prayer but he must give a reasoned decision. It is indeed correct that in the impugned judgment we do not find any cogent reason for the order of rejection of additional evidence. At any rate, when the appellate court reached the conclusion that the appeal was barred by limitation it had no jurisdiction vested in it bylaw to decide the question. Under these circumstances, the first contention is accepted However, we leave the matter at that, as we have decided to remit the appeal for rehearing by the Additional

Deputy Commissioner. He shall consider the merit of the application when the question will come up for decision before him. He shall hear the parties and dispose of the prayer in accordance with the law.

4. In so far as the second contention is concerned we are constrained to hold that the appellate court went wrong in assuming that the appeal was presented beyond 30 days. The impugned judgment was rendered on 18-10-1977 and the appeal was presented before the appellate court on 15-11-1977, vide pase 10 of the Memo of Appeal, wherein the date of receipt of the Memo has been clearly recorded as 15-11-1977. As such, we have no hesitation in arriving at the conclusion that the appeal was filed on 15-11-1977, and, as such presented within the period of limitation prescribed under Rule 34 of 'the Rules'. The appellate court was wrong in assuming that the appeal was presented on 28-11-1977. This finding is not borne out from the records of the case. Under these circumstances, we are constrained to hold that the holding of the Appellate Court that the appeal was filed beyond 30 days was an error of record. In consequence of the error, the appeal was not disposed on merit, and, the appellant was thrown out of court which has resulted in a failure of justice. In the result the finding of the court that the appeal was barred by limitation must be set aside.

5. We also find that the learned Additional Deputy Commissioner was not correct in holding that the appeal was incompetent under Rule 34 of 'the Rules' as the memo of appeal was not accompanied by a copy of the judgment. We find a true (typewritten) copy of the judgment of the trial court was duly annexed with the memo. We also find that the petitioners filed a certified copy of the Iudgment. of course later, but before the date of dismissal of the appeal. We have compared the typewritten copy with the certified one and find that it is a replica of the certified copy. Rule 34 of the Rules requires filing of the petition of appeal 'accompanied by a copy of the order appealed against'.....

Rule 34 of the Rules does not speak either expressly or by necessary implication that the copy must be a certified copy and no other class of copy. The

word 'certified' in between the words 'by' and 'copy of the order' is not there. We cannot insert the word 'certified' which is not there. It would amount to addition of a word of great significance in 'the Rule', which is not there nor could it otherwise be spelt out. We do not find why should the term 'copy' should be used in a restricted sense, meaning 'the certified copy' when admittedly the word is not there in 'the Rules'. 'The Rules' have been made to govern simple litigants and the technicalities of law should give way to simple and straight construction. As such, we are of the opinion that filing of a true copy of an impugned Judgment is sufficient compliance with the provisions of Rule 34 of 'the Rules'.

6. When an appeal is presented under Rule 34 of the Rules within the period of limitation, the appellant may file a copy of the impugned judgment along with the Memo of Appeal. However, if the appeal is presented beyond the period of 30 days from the date of the impugned judgment, and if the appellant desires to exclude time which was spent by him for obtaining the certified copy of the Judgment he need file a certified copy where the date of the application for certified copy, the date of filing the requisites, the date on which the copy was made ready by the office and the date of delivery of the copy etc. are reflected. An appellant is entitled to exclude time required for obtaining certified copy of the judgment. Therefore, if the appellant files an appeal beyond 30 days and desires to exclude time for obtaining certified copy of the judgment he should file the certified copy to enable the appellate court to entertain or receive the Memo of Appeal, as presented within the period of limitation. However, when an appeal is presented within the period of 30 days from the date of the impugned Iudgment there is no compulsion to file 'certified copy' of the impugned judgment. The appellant may present an uncertified or typewritten copy. In any view of the matter there is nothing in 'the Rules' which empowers the appellate court to dismiss an appeal under Rule 34 of the Rules, on the ground that 'the certified copy' has not been attached along with the memo. As such, dismissal of the appeal on the ground that the Memo of Appeal was not accompanied by a 'certified copy'

of the impugned judgment, was beyond

the jurisdiction of the appellate court vested in it bv law under 'the Rules'. Power to dismiss an appeal is a serious business. It can only be done where such power is expressly given or impliedly expressed. Furnishing a copy of the judgment is essentially necessary for admission of the appeal. Certified copy of the judgment may also be necessary when an appeal is presented beyond the period of limitation and the appellant claims exclusion of time for obtaining copy of the impugned judgment. The requirements of a certified copy is a procedural requirement and not a mandatory one as it appears from Rule 34 of 'the rules'. At any rate the courts in Nasaland which dispense justice untrammelled by the technicalities of the procedural law should not be technical to reject an appeal in limine without affording the appellant an opportunity to file the certified copy of the judgment. However, the requirements of Rule 34 is presentation of a Memo of Appeal accompanied by 'a copy of the impugned, judgment' and in the instant case there was a copy of the impugned judgment attached along with the memo. The petition of appeal was presented within 30 days. We also find that the appellant had filed a certified copy of the judgment before the impugned order of dismissal. We are constrained to hold that the appellant had substantially complied with the provisions of Rule 34 of 'the Rules' and the appellate court had no jurisdiction to dismiss the appeal.

7. For the forgoing reasons we hold that the impugned judgment and order passed by the learned Additional Deputy Commissioner cannot be sustained. It is set aside. The matter is sent down to the Additional Deputy Commissioner for disposal of the appeal in accordance with the law. He shall undoubtedly consider the application filed by the petitioners praying for adducing additional evidence and dispose the same in accordance with, law upon hearing both the parties.

In the result, the petition is allowed. There is no order as to costs.


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