1.The request in I. A. No. 1 is for condonation of delay in refiling: I. A. No. 1 has been filed on 16-2-1984. The appeal has been presented on 12-12-1983. The request in I. A. No. 2 is also for condonation of delay in refiling the appeal. This has been filed on 2-7-1984. I. A. No. 3 also has been filed on 2-7-1984 with a request for extension of time for payment of deficit Court fee. I.As. 2 and 3 are supported by the affidavit of Sri Shivraj Patil, the learned Advocate appearing on behalf of the appellant. I.A. No. 1 is supported by the affidavit of the clerk of the learned Advocate.
2. Examination of the records and scrutiny of the report of the Appeal Examiner disclose, that the appeal was presented on 12-12-1983, the memorandum of appeal being incomplete, as there there no grounds of appeal, it was not even signed by the party or the learned Advocate, and a Court fee of Rs. 10/- only was affixed. In regard to the remaining aspects, like furnishing of the certified copies of the judgment and decree, the same had been done. The decree plainly showed that the Court fee payable was Rs. 3,800/-. It is to be remembered that as against this amount, only Rs. 10/- Court fee had been paid on the memorandum of appeal. The Appeal Examiner submitted his report in the required proforma on 13-12-1983 to the Assistant Registrar, to whom the powers of the Registrar, have been delegated as per Rule 3 of Chapter IV of the High Court of Karnataka Rules, 1959 (hereinafter referred to as the Rules). Theobjections raised were that the appeal memo was incomplete and the Court fee paid was deficit. The papers were returned for doing the needful forthwith. It was on 16-2-1984 that the papers were refiled withI.A. No.l. I.A. No.1 was duly stamped with a Court fee of Rs.2/-. Thereafter, the office returned the papers on 24-2-1984 pointing out that deficit Court fee of Rs.3,790/-, which had been pointed out on the earlier occasion namely while returning the papers on 13-12-1983, had not been made good. The papers were refiled on 6-4-1984 making good the deficit Court fee of Rs. 3,790/-. The office raised another objection by 18-4-1984 and returned the papers for making good the additional deficit Court fee to the tune of Rs. 140/-, on the ground that Court fee of Rs. 70/- had been paid less in the Trial Court and also in this Court. It was on 29-5-1984 that the papers were refiled making good the deficit Court fee of Rs. 140/. As already pointed out, I. As. 2 and 3 have been filed on 2-7-1984.
3. There is no request in I.A. No. 1 for grant of time to pay deficit Court fee of Rs. 3790/-. The only request, as already pointed out, is to condone the delay in refiling the papers. The delay, that is sought to be condoned in I. A. No. 1, is what has occurred between 13-12-1983 and 6-2-1984.
4. It is at this stage, that we deem it necessary to go into the relevant Rules and find out what the office had to do in accordance with the Rules and what the parties or their advocates are also called upon to do, in accordance with the Rules. Before doing that, we sent for the concerned Assistant Registrar and the Appeal Examiner. Both of them explained in open Court that what has been done in returning the papers, at different stages raising objections at those stages, is in accordance with the practice prevailing in the office, and that such a practice is prevailing in the office since so many years.
5. The Rules in Chapters IV and XII of the Rules are the only Rules that are relevant for the aforementionedpurpose. Chapter IV deals with the powers of the Officers of the Court particularly that of the Registrar, Reading of sub rules 9 and 10 of Rule 1 of Chapter IV of the Rules makes it abundantly clear that the Registrar and in view of Rule 3 in the very Chapter the Assistant Registrar isempowered to grant time not exceeding six weeks for getting the defects rectified and also for getting the objections complied with by returning the papers to the concerned advocate. It is worthy of note at this stage that Rule 14(2) in Chapter XII of the Rules provides for computation of period of six weeks. The relevant portion reads as follows :
6. This takes us to the crucial question as to what are the duties of the Appeal Examiner in preparing the examination report. Rule 11 in Chapter XII of the Rules lays down that all the papers shall be forwarded to the Appeal Examiner for the purpose of examination. Rule 12 in the same Chapter lays down that it shall be the duty of the Appeal Examiner to examine all papers allotted to him for examination (a) with a view to see that the papers are presented within the time prescribed by law for theirpresentation, (b) that proper Court fee payable thereon has been paid, (c) that the papers are in proper form, (d) that the enclosures required by law or by these Rules have beenfurnished; and (e) that the papers comply in all respects with the provisions of law and the Rules applicable to them. Rule 13 provides that in connection with every set of paperspresented and examined, the Appeal Examiner shall attach one or more sheets entitled the Examination Report inprescribed form and the Appeal Examiner shall record whether the papers comply with the requirements stated in Rule 12 or they are in any manner defective and if there are any defects, shall record the same in the report. It further enjoins on the Appeal Examiner to place the report, so prepared, before the Registrar for Orders. After such a report is placed before the Registrar or the Assistant Registrar, in view of the delegation of powers by virtue of Rule 3 in Chapter IV, action in accordance with Rule 14 is required to be taken and it is then the list would be put up on the notice board, as already pointed out by virtue of Rule 14(2) in Chapter XII.
7. Plain understanding of Rules, 11, 12 and 13 in Chapter XII of the Rules, leaves no doubt in our mind that the examination of the set of papers by the Appeal Examiner has to be in respect of the aforementioned aspect narrated as (a) to (e) and it shall be complete before it is placed before the Registrar or the Assistant Registrar. We, therefore, hold that a piece meal report is not contemplated under Rule 12. All the objections and what are the requirements for compliance have to be noted in that report submitted to the Registrar or the Assistant Registrar under Rules 12 and 13. That necessarily means that the first report itself has to be complete as far as possible depending on the understanding of the defects or the requirements forcompliance. We are aware that some error may creep in. If such errors creep in, the Assistant Registrar or the concerned advocate has to attend to them. The Registrar or the Assistant Registrar is naturally expected, as per the provisions, in Rule 14 referred to above, to inspect that report submitted by the Appeal Examiner and find out that the report has been submitted fulfilling the requirements contemplated in Rule 12. If the Appeal Examiner has overlooked any defect or any aspect requiring compliance, the Registrar or the Assistant Registrar has to make good for it. They are not at all, in law, expected to act on that reportmechanically. Even if the Appeal Examiner has reported in regard to one aspect wrongly, the Registrar or the Assistant Registrar has the necessary power to get that deleted from the report. In other words, the report has got to be complete fulfilling the requirements of Rule 12. It is thereafter that it is to be notified on the notice board and the date on which it is so notified will be the date for computing the period of six weeks during which the Registrar or the Assistant Registrar has the power to act in accordance with the Rules in Chapter IV and Chapter XII of the Rules.
8. In regard to grant of time for payment of deficit Court fee or getting something rectified in presentation of the appeal, the Registrar and therefore the Assistant Registrar have powers as per sub rules (9) & (10) of Rule 1 in Chapter IV of the Rules. Subrule (1) specifically empowers the Registrar and therefore the Assistant Registrar to give time for payment of deficit Court fee on any appeal. Presentation of a memorandum of appeal necessarily embraces the defects in the memorandum of appeal which can as well include to be non signing either by the advocate or the party. The Registrar or the Assistant Registrar, as the case may be has power to call upon the advocate to rectify the defect, but that power is exercisable only for a period of six weeks from the date envisaged by rule 14(2) of Chapter XII of the Rules. Therefore, refiling of the papers, after the return, has to be within the time prescribed by the Registrar or the Assistant Registrar, and if at all any further extension of time upto six weeks is needed, a request to that effect has to be made while refiling the papers. But such a request can be granted by the Registrar or the Assistant Registrar only upto six weeks from the date provided under Rule 14(2) of Chapter XII of the Rules. If there is any lapse of time beyond six weeks the matter has to be, in view of Rule 17 in Chapter XII of the Rules, put up before the Court.
9. In our considered view, what we have stated in the preceding paragraphs is sufficient to make out that the practice that is being followed in the office of this Court, as explained to us by the concerned Assistant Registrar and the Appeal Examiner, is contrary to the Rules and therefore, the office is to be directed to discontinue this practice andstrictly adhere to the rules, as clarified, explained and held by us in the preceding paragraphs . The office is hereby directed to do so. We further direct that a copy of this order be circulated in the office after bringing the order to the notice of the Hon'ble the Chief Justice. We instruct the Court Officer to attend to this aspect of the matter.
10. Coming to the facts available in this case, it is seen that there has been flagrant violation of the powers exercisable by the Registrar that is the Assistant Registrar in view of Rule 3 of Chapter IV in the Rules. But as we are convinced that they have acted in accordance with the practice prevailing since many years, much blame cannot be placed at the doors of the advocate or the party concerned. It would be in our considered view just to take a liberal view of the matter so as not to cause prejudice to the appellant. In this connection, there is only one aspect to be noticed. Sri Shivraj Patil, the learned Advocate, has stated in hisaffidavit that it was by 24-2-1984 that he instructed his clerk (must be licensed clerk) to pay the deficit Court fee of Rs. 3,790/-, But when the papers were returned on 18.4.1984 with further objections that a further deficit in Court fee amounting to Rs. 140/- had to be made good, he found to his surprise that deficit court fee of Rs. 3,790 had been paid by his clerk on 6-4-1984 that is contrary to his instructions issued on 24-2-1984. We do not wish to go further into this aspect. But we do observe that it is the duty of the advocates to see that their instructions are carried out properly and 'precisely' by their clerks.
11. In view of the admittedly prevailing practice in the office of this Court and in view of what has been narrated in the affidavits filed in support of I.As. 1, 2 and 3, particularly the affidavit of Sri Shivraj Patil, the learned Advocate for the appellant, filed in support of IAs. 2 and 3, we allowI.As. 1 to 3. We condone all the delays that have occurred in refiling these papers. We also extend the time for payment of deficit Court fee from 13-12-1983 till 6-4-1984 and further oil till 29-5-1984, when the deficit court fee of Rs. 140/-, pointed out in the further objections raised by the office on 18-4-1984, came to be made good.
12. We direct that the appeal be registered and posted for admission.