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Girjabia Kom Nagappa Manjanathayya Chandawar Vs. Hamraj Vrindawandas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1921)ILR45Bom1339
AppellantGirjabia Kom Nagappa Manjanathayya Chandawar
RespondentHamraj Vrindawandas and anr.
Excerpt:
.....code (bom. act v of 1879), section 135(h), clauses 1, 2 and 3 - record of rights--omission to annex a certified copy of the entry in the record of rights--appeal--appellate court can allow a copy to be annexed. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - 3. i desire to add a word with reference to the point as to whether the appellate court had discretion in the matter to allow the plaintiff an opportunity of making good the omission to file..........within the meaning of section 135(h) of the bombay land revenue code, the plaintiff was bound to annex a certified copy of the entry of the record of rights. he had not done so in the lower court and the omission seems to have escaped the notice of the judge. the district judge,, therefore, rejected the plaint.2. we think that was a wrong method of procedure. if the attention of the plaintiff had been drawn to the defect when the plaint was presented, and the omission to annex a certified copy of the entry in the record of rights pointed out, the defect could have been, remedied. to dismiss the suit in first appeal owing to this defect appears to be wrong. the appellant ought to have been given an opportunity of annexing to the proceedings a certified copy of the entry of the record of.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff succeeded in the trial Court. In appeal the learned District Judge took the point that as the suit related to land within the meaning of Section 135(H) of the Bombay Land Revenue Code, the plaintiff was bound to annex a certified copy of the entry of the Record of Rights. He had not done so in the lower Court and the omission seems to have escaped the notice of the Judge. The District Judge,, therefore, rejected the plaint.

2. We think that was a wrong method of procedure. If the attention of the plaintiff had been drawn to the defect when the plaint was presented, and the omission to annex a certified copy of the entry in the Record of Rights pointed out, the defect could have been, remedied. To dismiss the suit in first appeal owing to this defect appears to be wrong. The appellant ought to have been given an opportunity of annexing to the proceedings a certified copy of the entry of the Record of Rights. Therefore on the plaintiff's doing so, the appeal must be taken on the file and heard on the merits. Costs in the lower court will be costs in the first appeal. No order as to costs here.

Shah, J.

3. I desire to add a word with reference to the point as to whether the appellate Court had discretion in the matter to allow the plaintiff an opportunity of making good the omission to file the necessary copy in the trial Court. Section 135(H)(2) of the Bombay Land Revenue Code provides that if the plaintiff fails to annex the copy to the plaint for any cause which the Court deems sufficient, he can produce such certified copy within a reasonable time to be fixed by the Court. Where any point relating to the non-production of the requisite certified copy is taken in appeal, it seems to me that the appellate Court has the same power, under this clause as the trial Court. The scheme as also the express provisions of the section suggest that the omission to annex the requisite copy is intended to be made good in the trial Court. But where the omission is not noticed by the Court or by the parties in time, there is no good reason why it should not be allowed to be cured at the stage at which it is noticed. It is true that the express words used in Sub-section (3) that the provisions shall apply to an appellate or revisional Court are not to be found in Sub-section (2). I am satisfied, however, that the Legislature could not have intended that the result must necessarily be to render all proceedings null and void if the omission is noticed after the trial has ended. In spite of the absence in Sub-section (2) of words used in Sub-section (3), I think that the word 'Court' in Sub-section (2) includes the appellate Court.


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