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Ram Nath Vs. Kanhya Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 116-D of 1966
Judge
Reported inAIR1967P& H204
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 1
AppellantRam Nath
RespondentKanhya Lal and anr.
Appellant Advocate D.K. Kapur, Adv.
Respondent Advocate Daljit Singh, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredKhushal Singh v. Hans Raj
Excerpt:
.....passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high..........high court in reasat all khan v. mahfuz ali khan, air 1929 lah 771, wherein it was held by a division bench (broadway and hilton jj.) that the word 'copy' as used in order 41 of the code means copy duly certified under the provisions of the evidence act and thus rendered capable of production before a court of law for examination. the argument is that the division bench judgment of the lahore high court was based on the provisions of section 91 of the evidence act but that the same was not relevant when the requirement of the specific provision of the code itself is only for a copy and not a copy as referred to in the evidence act. reference has also been made by the counsel to the judgment of the court of appeal in lawson v. financial news ltd., 1918-1 ch. 1, which related to.....
Judgment:

R.S. Narula, J.

1. Against the trial Court's decree dated October 28, 1965, Ram Nath appellant preferred a first appeal to the Court of the Senior Subordinate Judge, Delhi, on the 16th of November 1965. The memorandum of appeal was not accompanied by the requisite certified copies though the same had been applied for by the appellant on 11-11-1965. The copies were ready on December 2, 1965, but were not filed in the first appellate Court till January 5, 1966. On 2nd February, 1966, the appellant filed before the Senior Subordinate Judge, Delhi, an application under Section 5 of the Limitation Act for condoning the delay in preferring the appeal according to law. The learned Senior Subordinate Judge did not agree with the contention of the appellant and dismissed his first appeal on March 2, 1966, as barred by time, The appellant has come up in second appeal to this Court under Section 100 of the Code of Civil Procedure against the first appellate Court's decree.

2. At the outset a preliminary objection was taken on behalf of the respondent by Mr. Daljit Singh, Advocate, to the effect that the appeal was not maintainable as an order refusing to condone delay or extend time under Section 5 of the Limitation Act was not appealable. For this contention the learned counsel relied on the judgment of the Madras High Court in Kamaraju Pantulu v. B. Saramma, AIR 1942 Mad 604, wherein it was held as follows :--

'The question then arises whether the learned Judge was right in refusing to excuse the delay. On this point it is contended for the respondent that no second appeal lies in this case and it seems to me that, strictly speaking, that is so, inasmuch as there has been no first appeal in existence; and this appeal is not really an appeal against an order of the District Judge dismissing the appeal but an appeal against an order refusing to excuse the delay, against which no second appeal is provided. I have, however, heard the legal arguments involved in this case because they appeared to me to be important, and there is no reason why I should not treat this second appeal as if it were a revision petition. Having made that decision I am now unable to interfere with the learned District Judge's order. It is a matter for his discretion to decide whether he should excuse the period of delay or not, and when he has decided that no sufficient grounds existed for excusing the delay I do not think it is within my powers of revision under Section 115, Civil P. C., to interfere with that decision. In the result the appeal must fail and is dismissed with costs.'

3. I do not think there is much force in the preliminary objection of Mr. Daljit Singh. The first appellate Court did not pass any separate order on the appellant's application under Section 5 of the Limitation Act. No appeal has been preferred against the implied order rejecting the application of the appellant for extending lime. The first appeal itself was dismissed by the Court of the Senior Subordinate Judge. An appellate decree was framed by the Court below. This appeal has been preferred under Section 100 of the Code against that decree. The appeal is therefore clearly maintainable. It is, however, a different thing to argue that in this second appeal it is not open to the appellant to impugn the finding of fact arrived at by the Court below to the effect that there was no sufficient cause which prevented the appellant from filing the requisite certified copies within time, but Mr. D. K. Kapur, counsel for the appellant, frankly conceded that he was not at all questioning the finding of fact of the first appellate Court in the above matter nor was he asking me to interfere with the discretion exercised by the court below in declining to extend the time. The learned counsel also referred to the last portion of Sub-section (1) of Section 105 of the Code of Civil Procedure and argued that in an appeal against a decree the appellant is entitled to question the correctness of any interlocutory orders on which the decree itself might be based though no appeal lay against those orders.

4. On the merits, Mr. D. K. Kapur, the learned counsel for the appellant, has raised two contentions. He has firstly argued that in Order 41 Rule 1 of the Code the requirement of filing a copy cannot be interpreted to necessitate the filing of a certified copy of the judgment or decree of the Court below. The argument of the learned counsel is that wherever the requirement of the Code is that a certified copy should be filed it is specifically so stated, e.g. in Order 20 Rule 20, Order 21 Rule 11, Order 41 Rule 36 and Order 45 Rule 13 of the Code. In contra-distinction to these provisions the word used in Order 41 Rule 1 is only 'copy' and not a certified copy. Mr. Kapur has also invited my attention to the Federal Court Rules and the Supreme, Court Rules wherein the words 'certified copy' are used in relation to a copy required to be attached to a petition for special leave. The learned counsel has attacked the correctness of the Judgment of me Lahore High Court in Reasat All Khan v. Mahfuz Ali Khan, AIR 1929 Lah 771, wherein it was held by a Division Bench (Broadway and Hilton JJ.) that the word 'copy' as used in Order 41 of the Code means copy duly certified under the provisions of the Evidence Act and thus rendered capable of production before a Court of law for examination. The argument is that the Division Bench judgment of the Lahore High Court was based on the provisions of Section 91 of the Evidence Act but that the same was not relevant when the requirement of the specific provision of the Code itself is only for a copy and not a copy as referred to in the Evidence Act. Reference has also been made by the counsel to the judgment of the Court of Appeal in Lawson v. Financial News Ltd., 1918-1 Ch. 1, which related to practice in the English Courts.

5. I do not think it is open to me to entertain this argument of Mr. Kapur because the question has been more or less settled by the Supreme Court in State of Uttar Pradesh v. C. Tobit, AIR 1958 SC 414, wherein it was held in connection with the interpretation of the word 'copy' used in Section 419 of the Code of Criminal Procedure that haying regard to the context and the purpose of Section 419 the copy to be filed along with the petition of appeal must be a certified copy. Mr. Kapur has tiled to argue that there are different considerations for construing Section 419 of the Code of Criminal Procedure and which considerations are not relevant for interpreting the word 'copy' in Order 41 Rule 1 of the Code of Civil Procedure.

6. Mr. Daljit Singh, learned counsel for the respondent has referred to a Division Bench decision of this Court dated 26th of April 1957 in C. M. No. 494-D of 1954 in RFA 78-D of 1953, (Punj) in which it was authoritatively held that the word 'copy' as used in Order 42 Rule 2 of the Code means a duly certified copy as provided by the Evidence Act. There is no difference either in language or in principle between the provisions of Order 41 Rule 1 and Order 42 Rule 2 of the Code. Still another judgment of a Division Bench of this Court (Falshaw and G. L. Chopra JJ.) dated the 20th October, 1959, in SA No. 66-D of 1953, Khushal Singh v. Hans Raj, has been brought to my notice. Referring to the first question now raised by Mr. Kapur in the instant ease the Division Bench observed in Khushal Singh's case, S. A. No. 66-D of 1953 D/-20-10-1959 (Punj) as follows:--

'So far as the first question is concerned, it has already been discussed at length and decided by a Division Bench of this Court in Civil Misc. No. 494-D of 1954 in RFA No. 78-D of 1953, decided on 28th April 1957 (Punj). It was held that the term 'copy' as used in Order 42 Rule 2 Civil Procedure Code means a duly certified copy as provided by the Evidence Act'. Mr. Kapur has tried to convince me that the two judgments of the Division Bench on the above point need reconsideration and I should therefore direct the matter to be placed before a still larger Bench. I do not think it is open to me to adopt any such course. I am bound by the two Division Bench judgments of this Court inferred to above which are on all fours against the appellant. Moreover, I have not been able to find any difference between the law laid down in this respect by their Lordships of the Supreme Court in relation to Section 419 of the Code of Criminal Procedure and the provisions of Order 41 Rule 1, C. P. Code and therefore no question of considering the matter afresh appears to arise.

7. It is lastly contended by Mr. Kapur that in any case after an appeal has been admitted without a certified copy the requirement of the relevant rule is at an end and no appeal can thereafter be dismissed on the ground that certified copies were not filed with it. This contention of the learned counsel was also raised in Khushal Singh's case, S. A. No. 66-D of 1953, D/- 20-10-1959 (Punj) and did not find favour with the Division Bench.

8. In these circumstances I find no forcein this appeal and dismiss the same, but withoutany order as to costs. At the oral request ofMr. Kapur the case is certified to be fit forappeal under Clause 10 of the Letters Patentof this Court.


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