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Mool Chand and anr. Vs. Kamta Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. Nil of 1960
Judge
Reported inAIR1961All595
ActsCode of Civil Procedure (CPC) , 1908 - Sections 122, 123 and 124 - Order 42, Rule 1; Allahabad High Court Rules, 1952 - Rules 8, 21 and 21(1); Limitation Act, 1908 - Sections 5; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 332 and 332B
AppellantMool Chand and anr.
RespondentKamta Prasad and ors.
Advocates:S.S. Chandwaria, Adv.
Excerpt:
civil - power of registrar - order 42 rule 1 and sections 122, 123 and 124 of code of civil procedure, 1908 and section 5 of limitation act, 1908 and sections 332 and 332-b of u. p. zamindari abolition and land reform act, 1951 - copy of findings not filed within limitation period along with memorandum of second appeal - application made to registrar to condone the delay - held, registrar empowered to grant extension of time. - - as well, and they shall have the effect of modifying order xlii, rule 1, c. an oral request can be sufficient, provided that the judge or the registrar, as the case may be is satisfied that there was sufficient cause for not filing the documents along with the memorandum of appeal......provisions of the code. in other words, wherever there exists any conflict in the two sets of the rules, rules of court, 1952, as amended from time to time shall be applicable and not the c. p. c.14. in this connection, it may be observed that the rules of court, 1952, were finalised after consulting the rule committee. chapter ix, rule 8 was amended, in 1956 and twice in 1957. the amendments were made in 1956 after taking into consideration the report of the rule committee; but the committee was not consulted at the other occasions. original rule and also the amendments of 1956 were thus framed in accordance with the provisions of the c. p. c. as well, and they shall have the effect of modifying order xlii, rule 1, c. p. c,amendments of 1956 and 1957 have no application to second.....
Judgment:

D.S. Mathur, J.

1. The points for consideration are :

(1) Should the finding of the civil or revenue court form part of the judgment of the trial court and copy thereof furnished along with the trial court's judgment?

(2) Should the memorandum of Second Appeal be accompanied by a copy of the finding of the civil or revenue court, as the case may be?

(3) Is it necessary for the appellant to move an application under Section 5 of the Limitation Act, accompanied by an affidavit, if copies of the trial court's judgment and revenue or civil court's finding are not filed within the prescribed period of limitation? and

(4) Can the Registrar grant time for filing copies of the trial court's judgment and of the finding of the civil or revenue court On oral request, without an application accompanied by an affidavit?

2. There may be two kinds of references to the revenue court for recording a finding on issues remitted to it for decision) one under the provisions of the U. P. Zamindari Abolition and Land Reforms Act and the other under any other enactment. The finding of the revenue court on a reference made under any enactment other than the above act, and of the civil court under any enactment stand in the same category; but in view of the phraseology of Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, reference made thereunder must be classed in a different group.

3. Section 332 of the U. P. Zamindari Abolition and Land Reforms Act governs the reference of an issue made to the civil court for decision in cases where question of title is involved; while Section 332-B applies to a similar reference made to the revenue court by a civil court. The two sections have been similarly worded, but in Section 332-B one more sub-section has been added which provides that the finding of the Collector or subordinate revenue court on the issues referred to it shall for the purposes of appeal, be deemed to be part of the finding of the civil court.

It will be found that the word 'finding' has been used in the sub-section at two places, in the beginning with special reference to the finding of the revenue court and at the other with reference to the finding of the civil court. The term 'finding' has not been defined in the U. P. Zamindari Abolition and Land Reforms Act and consequently it must be given the meaning which was, or shall be deemed to have been, in the mind of the legislature. But in view of the fact that the word has not been similarly used at the two places, it may become necessary to give a restricted meaning at one place and a broader one at the other.

Had the legislature merely laid down that the finding of the Collector or subordinate revenue court on the issues referred to it shall be deemed to be a finding of the civil court, there would have been no controversy as, in the eye of law, the finding recorded by a revenue officer would be a finding recorded by the civil court, at par with findings recorded by the civil court on preliminary issues or issues decided before the final hearing i.e., pronouncement of judgment.

But the legislature has laid down in Sub-section 5 of Section 332-B that the finding of the revenue court shall be deemed to be a 'part of the finding' of the civil court. The finding of the revenue court, being a part of the finding of the civil court, the latter must have reference, not to a decision on one or few issues prior to the pronouncement of judgment, but to the judgment itself. In other words, the finding of the revenue court under Section 332-B is, in the eye of law, a part of the judgment of the civil court.

4. In any case, Sub-section (5) of Section 332-B is capable of two interpretations one which is more favourable, to the litigants and the other which would put them to additional expenses. It is, therefore, but necessary that the law be construed in the same manner as fiscal laws i.e. the law should be construed strictly and where two interpretations are possible, one favourable to the subject be adopted. In this aspect of the matter also the second interpretation favourable to the litigants must be adopted, namely that the finding of the revenue court recorded under Section 332-B of the U. P. Zamindari Abolition, and Land Reforms Act is a part of the judgment of the Civil Court.

5. When the revenue court's finding under Section 332-B is a part of the judgment of the civil court, copy thereof must be furnished along with the copy of the trial court's judgment, in case the finding was not incorporated in the judgment of the civil court nor was it appended thereto. Further, in view of the wording of Section 332-B, the revenue court's finding should form part of the judgment of the civil court and this can easily be done by appending it to the judgment. If this is done, a copy of the finding shall be issued along with the copy of judgment of the trial court.

6. Considering that no provision similar to Sub-section (5) of Section 332-B was made in Section 332 of the U. P. Zamindari Abolition and Land Reforms Act, courts of law must interpret the latter section differently and give a restricted meaning to the word 'finding' as can ordinarily be assigned to it or as an be presumed from the provisions of the C. P. C. The finding of the civil court on reference made to it for decision of certain issues will be akin, to the decision on preliminary issues or issues decided before the final hearing. Such findings need not necessarily form part of the final judgment, nor is it accessary that copies thereof be furnished along with the copy of judgment.

7. The finding of the revenue court on a reference made under any enactment other than the U. P. Zamindari Abolition and Land Reforms Act is at par with a finding of the civil court on issues remitted to it for decision. Consequently, such findings do not form, part of the judgment of the trial court in the sense that copies thereof must be furnished with the copy of the trial court's judgment.

8. In other words, only the finding of the revenue court on a reference made under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, and not the finding of the civil court or of the revenue court under any other enactment, forms part of the judgment of the trial court, copy of which has to be furnished along with the copy of the trial court's judgment.

9. The second point arises on account of the conflict in Order XLII, Rule 1, C. P. C. and the provisions contained in the Rules of Court, 1952, as amended from time to time. Order XLII, Rule 1, C. P. C. was added to the First Schedule of the Code under notification dated 14-8-1948. This rule provides that every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and, unless the court sees fit to dispense either or all of them, a copy of the judgment on which the said decree is founded i.e. judgment of the lower appellate court, a copy of the judgment of the court of the first instance (trial court) and a copy of the finding of the civil or revenue court, as the case may be, where an issue was remitted to such, court for decision.

Chapter IX Rule 8 of the Rules of Court, 1952, which were published long after the incorporation of Order XLII, C. P. C., on the other hand, lays down that every memorandum of Second Appeal shall be accompanied by a copy of the decree against which the appeal is directed, a copy of the judgment upon which such decree is founded and a copy of the judgment of the court of the first instance. It will thus be found that the Rules of Court do not make it necessary for the appellant to file a copy of the finding of the revenue or civil court along with the memorandum of appeal.

10. If the Rules of Court override, Or as one may say modify or amend the provisions of the C. P. C., it will not be necessary for the appellant to file a copy of the finding of the revenue or civil court along with the memorandum of appeal; but if the Rules of Court do not override the provisions of the C. P. C., it will be necessary for the appellant to comply with the provisions of O, XLII, C. P. C. before the memorandum of appeal can be said to have been properly presented.

11. Section 122, C. P. C. reproduces the rower of the High Court to make rules to regulate its own procedure, and also the procedure of the civil courts subject to its superintendence, and by such rules to annul, alter or add to all or any of the rules contained in the First Schedule. This power is subject to the restriction contained in Section 124, C. P. C., namely, that before making any rules under Section 122 the High Court must take the report of the Rule Committee constituted under Section 123 into consideration. Section 124 is to this extent in conflict with the powers conferred on the High Court under Clause 28 of its Letters Patent.

12. The High Court of Judicature at Allahabad, as it then existed, was conferred with the power to make rules under the Letters Patent, and one of such powers is detained in Clause 28. The new High Court of Judicature at Allahabad constituted under the U. P. High Courts (Amalgamation) Order, 1948, continued to exercise such powers by virtue of the provisions contained in the Amalgamation Order, and also Article 225 of the Constitution of India. Clause 28 of the Letters Patent if, not repugnant to the provisions of the Constitution, nor has the appropriate legislature yet made any law as contemplated by Article 225, with the result that the High Court can still continue to exercise the powers conferred under the Letters Patent, i.e. to make rules to regulate its procedure even though such rules may be in conflict with the corresponding provisions of the C P. C.

13. A perusal of Clause 28 of the Letters Patent will make it clear that the High Court had been given the power to make rules and orders for the purpose of adapting as far as possible the provisions of the C. P. C., (Act No. VIII of 1859). This C. P. C. was later re-enacted and replaced by a similar Code of 1908. By virtue of Section 8 of the Central General Clauses Act, reference to the C. P. C. of 1859 in Clause 28 of the Letters Patent shall after the re-enactment of the Code be to the subsequent Code of 1908.

In other words, Clause 28 gives power to the High Court to make rules and Orders for the purpose of adapting as far as possible the provisions of the C. P. C. Thus the High Court has the power to make rules and orders, to regulate its own procedure which may, to some extent, be in conflict with the provisions of the Code; and such rules shall override the provisions of the Code. In other words, wherever there exists any conflict in the two sets of the rules, Rules of Court, 1952, as amended from time to time shall be applicable and not the C. P. C.

14. In this connection, it may be observed that the Rules of Court, 1952, were finalised after consulting the Rule Committee. Chapter IX, Rule 8 was amended, in 1956 and twice in 1957. The amendments were made in 1956 after taking into consideration the report of the Rule Committee; but the Committee was not consulted at the other occasions. Original rule and also the amendments of 1956 were thus framed in accordance with the provisions of the C. P. C. as well, and they shall have the effect of modifying Order XLII, Rule 1, C. P. C,

Amendments of 1956 and 1957 have no application to Second Appeals. Consequently, the presentation of Second Appeals must be in conformity with Ch. IX, Rule 8 of the Rules of Court which, in the eye of law, has modified Order XLII, Rule 1, C. P. C. In other words, the Second Appeals shall be deemed to have been properly presented, if the memorandum of appeal is accompanied by papers detailed in Ch. IX, Rule 8 of the Rules of Court, 1952, and no separate copy of finding of civil or revenue court is filed therewith.

15. When it is not necessary for the appellant to file a copy of the finding of the civil or revenue court with the memorandum of appeal no application under Section 5 of the Limitation Act for condonation of delay need be made, if such copy is filed at a late stage, after the expiry of the period of limitation. But both Ch. IX, Rule 8 and Order XLII, Rule 1 provide that the memorandum of appeal shall be accompanied by a copy of the judgment of the court of first instance unless the Court sees fit to dispense with such copy.

Consequently, unless the filing of the copy is dispensed with, it must be filed within the period of limitation. Further, the copy of the trial court's judgment must be complete : in other words, in cases where an issue has been remitted to the revenue court for decision under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, the copy of the trial court's judgment should contain the finding of the revenue court or the copy of such finding be filed separately, within the period of limitation.

When the copy of the judgment of the court of first instance, where necessary, containing the finding of the revenue court under Section 332-R of the U. P. Zamindari Abolition and Land Reforms Act or along with a copy of such finding, is not filed within the period of limitation, the presentation is not proper and no action can be taken on the memorandum of appeal unless the delay in filing the copy i.e. late presentation of the appeal in accordance with the rules, is condoned. The period spent in obtaining this copy cannot be excluded under Section 12 of the Limitation Act, though it may he deemed to be sufficient cause under Section 5 for not presenting the appeal within the period of limitation.

16. In other words, for so long as Ch. IX, Rule 8 of the Rules of Court is not amended to bring it in conformity with Order XLII, Rule 1, C. P. C. the memorandum of appeal need nt be accompanied by a copy of the finding of the civil court, nor of the revenue court on an issue referred to it for decision under any enactment other than the U. P. Zamindari Abolition and Land Reforms Act; but if such copy is filed after the expiry of period of limitation, no application under Section 5 of the Limitation Act is necessary to condone the delay.

However, if the copy of the judgment of the trial court containing the finding of the revenue court under Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act, or copies of the judgment of the trial court and the finding of the revenue court under the aforementioned section, if not contained in the judgment of the trial court or not appended thereto, are not filed within the period of limitation, an application under Section 5 of the Limitation Act would be necessary, unless the filing of the copy or the copies, as the case may be, has been dispensed with.

17. It is under Ch. IX, Rule 21 (1) of the Rules of Court that the Registrar can receive a memorandum of appeal if it is not in the proper form and is not accompanied by the necessary documents, and for sufficient cause shown can grant such time is he may consider proper for supplying such documents or removing such defects. This rule does not lay down whether the cause should be shown by moving an application accompanied by an affidavit, if necessary, or an oral request can be made. Under Rule 21 both the Registrar and the Judge can grant time as may be necessary.

Chapter IX, Rule 8 contains a similar provision which lays down that where a copy of the judgment of the court of first instance referred to in Clause (c) or any copy Or copies of papers referred to in Clause (c) cannot be filed along with the memorandum of appeal the Court may on the presentation of an application accompanied by an affidavit, for sufficient cause shown, allow such further time for the filing thereof as it may think fit. In other words, if further time has to be granted, an application accompanied by an affidavit has to be made and such further time can be granted only by the Court and not by the Registrar.

If these two rules are read together, it must be held that for showing cause under Ch. IX, Rule 21 (1) it is not necessary that an application accompanied by an affidavit be made. An oral request can be sufficient, provided that the Judge or the Registrar, as the case may be is satisfied that there was sufficient cause for not filing the documents along with the memorandum of appeal. In other words, the Registrar can grant time under Ch. IX Rule 21 of the Rules of Court on an oral request.

It will be for the Registrar to decide whether oral request is sufficient or the party must file an affidavit in support of the assertions. The Registrar shall have to exercise his discretion properly and not to act as a post office to grant time in each and every case. It will be desirable to indicate in suitable cases the cause shown so that the party may not make out a new story at a later stage when a request is made for condonation of delay in the presentation of the appeal.

18. In the present case, the reference was made to the revenue court tinder Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act for decision of issues remitted to it and the finding of the revenue court was to form part of the judgment of the civil court. The finding was not made a part of the civil courts judgment with the result that when, the copy of the judgment of the court of first instance was issued it did not contain the finding of the revenue court and it became necessary for the appellants to apply separately for the copy of the revenue court's finding.

This finding was filed in Court on 4-4-1960 and, in the eye of law, a complete copy of the trial court's judgment was filed on that date. The limitation for the presentation of the appeal expired on 18-3-1960. The present Second Appeal was thus presented in accordance with the rules on 4-4-1960, i.e. after the expiry of the period of limitation. The filing of the copy of the trial court's judgment has not been dispensed with, with the result that no action can be taken on the memorandum of appeal unless an application under Section 5 of the Limitation Act accompanied by an affidavit is made and the delay in presentation is condoned.

19. No application under Section 5 of the Limitation Act has yet been made. On the request of the learned counsel a last opportunity is given and the appellants are allowed to move an application under Section 5 of the Limitation Act within one month provided that an application for time is made at the same time.


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