Skip to content


Malik Chand Vs. Zubeda Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 219 of 1970
Judge
Reported inILR1974Delhi160
ActsDelhi Rent Control Act, 1958 - Sections 39; Limitation Act, 1963 - Sections 5
AppellantMalik Chand
RespondentZubeda Begum and ors.
Advocates: A.L. Sehgal and; V.B. Andley, Advs
Cases ReferredNew Delhi v. Kuldip Lal Bhandari
Excerpt:
(i) delhi rent control act (1958) - section 39--second appeal under--memorandum of appeal must be accompanied by copy of impugned order and that of the first court (rent controller)--appeal admitted without insisting on such copy--not validated thereby--copy not filed within limitation--appeal held to be barred in circumstances of case.;(repelling the contention of the counsel for the appellant that there was no requirement under the delhi rent control act, 1958, which was a complete code by itself, that a second appeal under section 39 of delhi rent control act should be accompanied by a certified copy of the impugned order) that the memorandum of appeal must be accompanied by certified copies of the order appealed against as also of the order made in the first instance.;that as the.....h.l. anand, j. (1) this second appeal under section 39 of she delhi rent control act, 1958, hereinafter called 'the act', rates' some interesting question as to the interpretation of the provisions of section 85 of the evidence act and in particular the question whether the presumption provided under the said section could be available where the document in question had been attested by aforeign authority and as to the interpretation of the provisions of the enemy property act, 1968, hereinafter called 'the enemy act', but, unfortunately for the appellant, must be dismissed on the ground that it is barred by time. it has been filed in the following circumstances.(2) on october 3, 1960. smt. zubeda begum. smt. sugra begum. smt. zohra begum, smt. nasira begum for self and on behalf of her.....
Judgment:

H.L. Anand, J.

(1) This second Appeal under section 39 of She Delhi Rent Control Act, 1958, hereinafter called 'the Act', rates' some interesting question as to the interpretation of the provisions of Section 85 of the Evidence Act and in particular the question whether the presumption provided under the said Section could be available where the document in question had been attested by aforeign authority and as to the interpretation of the provisions of the Enemy Property Act, 1968, hereinafter called 'the Enemy Act', but, unfortunately for the appellant, must be dismissed on the ground that it is barred by time. It has been filed in the following circumstances.

(2) On October 3, 1960. Smt. Zubeda Begum. Smt. Sugra Begum. Smt. Zohra Begum, Smt. Nasira Begum for self and on behalf of her minor sons Abid Ali, Wahid Ali and Liak All and her daughter Suraiya Begum filed an application for the eviction of respondent from property bearing No. 3705-6, Ward Vii, Shah Ganj. Delhi under Section 14 of the Act, through their purported general attorney Dr. Amin-ul-haq. on the ground that the respondent who was in occupation of the premises in dispute was a tenant at a monthly rental of Rs. 33.19. had made default in the payment of arrears of rent since December 1, 1955 in spite of notice of demand and, thereforee, had become liable for ejectment from the said premises. The application was signed and verified by the said general attorney on behalf of all the petitioners. Besides the mention of the general attorney in the title of the application and on the foot of the application at the place under the signatures and under the verification, there was no averment in the petition itself that the general attorney had been duly authorised by all or any of the petitioners to file the present petition nor were any particulars set out of any instrument by which the appointment had been made. The petition was contested on behalf of the respondent inter alia, on the alegations that (here was no relationship of landlord and tenant bei.wccn the partics: that the petitioners had no locus stand! to file the petition as they had 'shifted' to Karachi in 1947 and had become evacuees; that the property in dispute was an evacuee property; that no notice under Section 14 of the Act. had been served on the respondent: that some of the petitioners were minors and there was no allegation that their next friend had no interest adverse to them; that the power of attorney in favor of the general attorney was not attested by the High Commissioner for India in Pakistan and was. thereforee. defective; that the agreed rent was Rs. 32.19 p.m.: and that the rcspondent was entitled to certain adjustment on account of the amounts spent by them, details of which were given in the reply. On May 22. 1962, an application was made under Order Xxii Rule 2 of the Code of Civil Procedure on behalf of Abid Ali, Wahid Ali, Liak Ali and Suraiya Begum to the effect that Smt. Nasira Begum had died and these applicants, who were already on the records of the proceedings be treated as her legal reprensentatives. On September 17, 1962, Abid All and Liak Ali made an application under order Xxxii Rule 12 and Section 151 of the Code of Civil Procedure praying that. as they had become major and had elected to proceed with the petition, the cause title of the Petition be amended accordingly. This application was moved through Shri Ram Piara Lal, Advocate and a power of attorney executed by them in his favor was enclosed with the application. Similar application was also made by Wahid Ali through the said Advocate and the power of attorney in favor of the counsel was also attached with the application. By an order made on March 27, 1963, the Addl. Rent Controller, who was then seized of the matter, allowed all these applications and an amended petition was filed pursuant to this prder. In the cause list of the amended petition the petitioners were described as 'Zubeda Begum and others' but the opening sheet attached to the petition described the petitioners as suing through the general attorney, Amin-ul-haq. The amended petition was, however, signed by Liak Ali and two other petitioners while Amil-ul-haq signed as general attorney of Zubeda Begum, Zohra Begum, Sugra Begum and as next friend and guardian of Suraiya Begum. The verification of the amended petition was, however, unsigned. The petition was also signed by Shri Ram Piara Lal Advocate. In his reply to the amended portion, various pleas raised in the earlier reply were reiterated by the respondent and it was further contended that there was no power of attorney in favor of Amin-ul-haq on behalf of Abid Aii, Wahid Aii and Liak Ah and that the power of attorney on behalt of Smt. Zubeda Begum, Sugra Begum and Zohra Begum was not valid and related only to property No. 3705, It was further alleged that the said power of attorney had not been attested by the High Commissioner of India in Pakistan and was thereforee, defective. On October 25, 196'. the respondent was allowed to amend his reply so as to enable the respondent to raise a plea that the petition was incompetent for want of notice under Section 106 of the Transfer of Property Act and in the amended reply, the respondent alleged, infer alia, that there was no power of attorney in favor of Amin-ul-haq on behalf of Abid Ali, Wahid Ali and Liak Aii and there was no valid power of attorney in favor of the attorney by the three ladies mentioned above and that the power of attorney related only to house No. 3705.

(3) Before the Addl. Rent Controller, two preliminary objections were raised, namely, (1) power of attorney given in favor of Aminul-haq was not valid and that there was no proper petition (2) there were two separate tenancies: (a) in respect of property No. 3705 and (b) in respect of property No. 3706 == 3707 but the petition had been brought for the ejectment of the respondent from property No. 3705 and property No. 3706.

(4) By an order made by the Addl. Rent Controller on September 16, 1968, it was held that the execution of the power of attorney, of which copy was placed on the record and exhibited as Ex. AW3/1, had not been proved and no presumption in respect of its execution could arise under Section 85 of the Evidence Act as the presumption envisaged by the said Section did not extend to the execution of power of attorney before the various foreign authorities. It was further held that while the power of attorney purported to empower the attorney with regard to property No.3705, the petition for ejectment was with regard to property No.3705 and 3706 and there was, thereforee, no power of attorney in favor of the attorney with regard to property No. 3706. The petition was accordingly dismissed.

(5) On appeal under Section 38 of the Act. being R.C.A. No. 1082/68, the findings of the Add 1. Rent Controller on both the counts were reversed and it was held that on a true construction of the Provisions of Section 85 of the Evidence Act, the presumption in respect of execution of power of attorney would even extend to such powers of attorney which were executed before and authenticated by a foreign functionary and that on its true construction the power of attorney in question purported to empower the attorney to manage property bearing No. 3705 to 3707 and, thereforee, included the authority to deal with property No. 3706 as well. The further contention raised on behalf of the respondent that the property in dispute had since vested in the Custodian of Enemy Properties under the Enemy Act and the petition was, thereforee, not maintainable, was not allowed to be raised on the ground that the said contention had been negatived earlier by the Addl. Rent Controller by an order made on April 16. 1966 and having been confirmed in appeal by the Tribunal by an order made on March 31, 1967, had become final and could not be called in question in the appeal against the order dismissing the petition. The order of the Addl. Rent Controller accordingly set aside ind the Addl. Rent Controller was directed to proceed with the petition in accordance with law.

(6) Aggrieved by the order of the Rent Control Tribunal, the appellant has come up in appeal under Section 39 of the Act.

(7) Before proceeding to consider the merits of the appeal it would be necessary to deal with a preliminary objection raised on behalf of the respondent to the effect that the appeal was barred by time and that, there being no ground to condone the delay, the same was liable to be dismissed.

(8) The impugned order was made on November 9, 1970. An application for certified copies of the orders was made on November 12 1970 and the copies were prepared and supplied to the appellant on January 13, 1971 but the appellant had meantime filed the present appeal on December 14, 1970 without the certiFied copy of the impugned order or of the order made in the first instance but the memo of appeal was accompanied by ordinary copies of the orders of the Courts below with an application being C.M. 1582/70 praying that the production of the certified copies of the orders of the Court below 'be dispensed with'. The appeal was admitted to a hearing by an order made on December 15. 1970 and on the application for exemption, it was directed that 'certified copies will be filed at a very early date.' The certified copies were eventually filed on November 21, 1972 with an application under Section 5 of the Limitation Act, being C.M. 1223/72, praying that the delay in filing the certified copies be condoned on the allegation that the appellant had made an application for certified copies on November 12, 1970 which were prepared on January 13, 1971 and, as the appellant was ill at that time, he had asked his nephew to obtain the necessary copies and deliver the same to his Advocate; that the newphew obtained the certified copies on January 13, 1971 but instead of delivering the same to the Advocate, kept the same amongst his private papers and forget all about it; that the appellant was an old man who depended on the said nephew and that it was on November Ii, 1972 that on an inspection of the records, the omission was discovered; that on a thorough search of papers, the copy was found on November 17, 1972 amongst the papers of the nephew and was filed on November 21, 1972. It was contended that the non-production of the copy earlier was owing to the reason beyond the control of the appellant and that the appellant had all along been under the bona fide impression that his instructions had been carried out by the nephew and the copies had been duly delivered to the Advocate and that there was. thereforee, sufficient cause for the non-production of the certified copies.

(9) The first question that, thereforee, requires consideration is whether the appeal was filed within time and. if not, whether the delay in the proper presentation of the appeal should be condoned in the circumstances set out in the appellant's application under Section 5 of the Limitation Act.

(10) Three points were raised with regard to the question of limitation on behalf of the appellant. These are :

I.Having regard to the provisions of the Act, the appeal need not have been accompanied by a certified copy of the impugned order;

II.in any event, by the order admitting the appeal without being accompanied by a certified true copy of the impugned order, the appeal became competent and there was only a direction to file a certified copy ''as early as possible' and non-compliance of that direction would not render the appeal incompetent; and

III.in any event, there was sufficient cause for the delay in filing the certified copies.

(11) Point 1.Learned counsel for the appellant contended that the Act was a complete Code by itsci' and it was not necessary to go out of the provisions of the Act to determine if the Second Appeal under Section 39 of the Act required to be accompanied by a certified copy of the order and that on a true construction of the provisions of Section 39, in the context of the scheme of the Act and the Rules framed there under, it must be held that there was no requirement that a Second Appeal under the Act should be accompanied by a certified copy of the impugned order.

(12) Learned counsel for he respondent on the other hand contended that having regard to the provisions of Order Xli Rule I of the Code of Civil Procedure read with Rule 2(b), Chapter I, Part A(a) of the Punjab High Court Rules & Orders, Volume V, the appeals to this Court whether under the Code of Civil Procedure or under any oilier provision of law must be accompanied by a certified copy of the decree and of the judgment appealed against and in case there was no decree, then of the order sought to be appealed against. Learned counsel relied on two decisions of this Court in the case of Shri Ram Mehar v. Shri Raghbir Singh, 1969 R.C.R. 577. and Kuldip Singh v. Krishan Kumar and others, 1973 R.C.R. 186.

(13) It appears that the contention of the respondents on this point is sound and must prevail.

(14) Section 39 of the Act under which the present appeal has been filed merely confers a right of second appeal subject to the condition imposed by sub-section (2) of that section besides providing for the limitation for such as appeal as indeed the power of the Court to entertain the appeal after the expiry of the period, if it was satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. The Section is, however, silent as to the procedure for the institution of the second appeal or the manner or the form in which such appeal should be filed. The phraseology of this Section is distinguishable from the provisions of Section 37 of the Act which lays down the procedure to be followed by the Controller as indeed of the provisions of Section 38 of the Act which, while conferring the right of appeal to the Tribunal, provides that the Tribunal would have all the powers vested in a Court under the Code of Civii Procedure when hearing an appeal. Section 38 of the Act. however, does not lay down the form or the manner in which the appeal could be filed, and it could not be said that the provisions, that the Tribunal would have all the powers vested in a Court under the Code of Civil Procedure when hearing an appeal, would be deemed as extending to the institution of such appeals, the procedure laid down in that behalf under the Code of Civil Procedure. Chapter V of the Delhi Rent Control Rules,1959, made in exercise of powers conferred by Section 56 of the Act by the Central Government, however, deals with appeals and Rule 17 in this chapter provides for the form of appeal to the Rent Control Tribunal and sub-rule (2) of this Rule contains a mandatory provision that the memorandum of appeal to the Tribunal 'shall be accompanied by a copy of the order of the Controller appeat form.' This chapter, is, however, silent as to the form of appeal and as to the manner of its presentation and as to the accompaniment of such appeals when filed in this court under Section 39 of the Act. The distinctions is understandable because the Controller and the Tribunal being creatures of the Act, it was necessary to provide in the Act or the Rules framed there under the practice and procedure to be followed in the proceedings before these authorities but such a provision was not absolutely necessary in the case of second appeals before this Court because this Court, being an existing Court, could regulate the procedure for such appeals either by its existing rules of practice and procedure, to the extant applicable, or frame fresh rules in that behalf. Order Xli Rule I of the Code of Civil Procedure, however deals with the form of appeal from original decrees and as to the accompaniment of a memorandum of appeal in such cases and contains a mandatory provision that 'the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.' This Order is, however, in terms applicable only to appeals from original decrees but its operation has been extended to appeals from appellate decrees as well by Order Xl.fT Rule I of the Code of Civil Procedure which provides that the rules of Order Xii shall apply, so far as may be, to appeals from appellate decrees. Both these Orders are, however. confined in their operation to appeals from 'decrees', whether original or appellate, and would, by their own force, have no application to appeals from 'orders' as distinct from decrees. Order Xliii Rule 2, however, extends the operation of Order Xli to appeals from orders 'so far as may be'. These provisions of the Code of Civil Procedure have, however, not been specifically made applicable to the second appeals under Section 39 either by Section 39 or by the Rules framed under Section 56 of the Act and it, could not, thereforee, be said that by their own force, these provisions would make it incumbent on the appellant in second appeal under Section 39 of the Act to enclose with the memorandum of appeal, a copy of the inpugned order.

(15) This, however, is not the end of the difficulty of the appellant because by virtue of Rule 2(b) of Chapter I, Part A(a) of the Rules and orders of the Punjab High Court, Valume V. which are applicable to Delhi by virtue of the provisions of Section 7 of the Delhi High Court Act 1966, it is provided that, 'every memorandum of appeal should be accompanied by copies of the decree and judgment as prescribed by Order Xli Rule I of the Code of Civil Procedure' and that in the case of second appeal, 'in addition to the documents prescribed by Order Xli Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the Court of first instance unless the Appellate Court dispenses therewith.' This rule appears to be very wide in its sweep because it is not confined to appeals under the Code of Civil Procedure but would appear e,-fc!cie to take within its ambit all appeals that may be filed in the High Court under the provisions of any law including Second Appeals except those that are specially provided in Chapter 7 of the said Rules and the question that would thus fall for consideration is whether having regard to the true meaning and scope of the said Rule. the provisions of Order Xli Rule I of the Code would be attracted in the case of the present appeal and the question whether or not the appeal had to be accompanied by a copy of the impugned order must. thereforee, be determined with reference to the provisions of Order Xli Rule I of the Code.

(16) As has been noticed above, Rule I of Order Xli of the Code deals only with appeals from original decrees and would have no application either to first or second appeals or to appeals from original orders or appellate orders without the aid of Order Xlii Rule I in the case of appeals from appellate decrees and of Order Xli Ii Rule 3 in case of appeals against orders. The High Court Rules referred to above, however, do not in terms extend the provisions either of Order XLIt Rule I or Order Xliii Rule 2 to the appeals that may be filed in the High Court but the reference in Rule 2(b) to the second appeals would, however, be sufficiently indicative of the intention of the said Rule and an extension by implication to all second appeals before the High Court, the provisions of Order XLt Rule 1. The aforesaid provision, however, cannot apply to such second appeals in full because such appeals could not be accompanied by a copy of the decree as neither a decree is drawn in cases under the Act nor is there any provision for an appeal ''against the decree'. The Act merely contemplates an order and the order is of a composite nature which contains not only an executable decision but the reasons for it as well and would to that extent contain both the judgment and the executable order. The aforesaid provision would, thereforee, apply to second appeals only so far as may be with the result that the memorandum of appeal in such appeals must be accompanied by a copy of an order appealed against as also a copy of the order made in the first instance and in view of the decision of the Supreme Court in the case of 575 (ZA), such copies must be certified copies because the orders . being Shakuntia Dcvi Jain v. Kuntal Kumari and others, Air 1969 S.C. public documents, only certified copies of these could be produced in proof of their contents by virtue of the provisions of Section 77 of the Evidence Act.

(17) Even if it be assumed, as contended on behalf of the appellant. that neither the provisions of the Code of Civil Procedure referred to above nor the said High Court Rules would apply to such appeals. such appeals must nevertheless be accompanied by certified copies of the order appealed against and of the order made in the first instance because in the absence of any rules with regard to practice or procedure to be followed in the case of such appeals either in the Act or in the existing rules of the High Court, the practice generally followed in this Court with regard to similar and such appeals over a long period of time must be followed until rules to the contrary have been framed and even for that reason, the memorandum of appeal must be accompanied by certified copies of the order appealed against as also of the order made in the first instance.

(18) The decisions cited on behalf of the respondents in suppor of the contention do not. however, appear to be of any assistance in determining the question. In the case of Shri Rain Mehar v. Shri Raghbir Singh, 1969 R.C.R. 577(1) a Single Judge of this Court held that by virtue of the provisions of Section 38 of the Act (wrongly printed in the report as 39), the Rent Control Tribunal had ail the powers of a Court under the Code while hearing an appeal and that this would mean that the provisions of Order XI.I would be applicable to such an appeal. The learned Judge was not concerned with the question as to the manner or form ai'd procedure in respect of second appeals under Section 39 of the Act. In Kuldip Singh v. Krishan Kumar and others, 1973 R.C.R. 186(2) the question that fell for consideration before the learned single Judge of this Court was whether the delay in the presentation of a second appeal to this Court under Section 39 of the Act should be condoned and it was held that there was a case for condensation. The question whether a certified copy of the impugned order had to accompany the appeal or as to the power of the Court to dispense with it and as to whether when it was filed without such copy and exemption was granted or the appeal was admitted, the appeal was competent or not, were neither raised nor decided in this case.

(19) Point II. On this point, learned counsel for the appellant raised the contention that when the appeal was admitted by the learned Judge even though it was not accompanied by a certified copy of the impugned order, the appeal having been filed within time, it was competent and the non-compliance with the direction of the learned Judge that the certified copy should be filed 'as early as possible' would not render the institution of it incompetent even if it be held that the provisions of Rule 2 (b) of the High Court Rules extended relevant provision- of the Code of Civil Procedure to this appeal. He further contended that the non-compliance with the direction may visit the appellant with any other adverse consequence but could not affect the competence of the appeal and urged that since the impugned order could not be equated to a decree within the meaning of order Xli Rule I of the Code of Civil Procedure but was merely in the nature of a judgment, its tiling could be dispensed with and having been validly dispensed with. the appeal was competent even though it was not accompanied by a certified copy of the impugned order.

(20) Learned counsel for the respondent on the other hand. contended that having regard to the provisions of the Code of Civil Procedure or of Rule 2 (b) of 'he High Court Rules or of the practicc consistantly followed by this Court over the years in respect of such appeals, the admission of the appeal was incompetent as the impugned order was in the nature of a decree and in the absence of a certified copy of the impugned order, the appeal was either incompetent or premature if the certified copy had not been obtained when the appeal was filed and the appeal would become competent only if certified copy was filed within time and if that was not done, the appeal though competent when the certified copy was filed, would be beyond time.

(21) The question that thus requires consideration is as to the nature of the order made by the Controller under the Act for eviction and particularly whether it was in the nature of a 'decree' of which the accompaniment with the memorandum of appeal, whether first or second, could not be dispensed with and the effect of its absence at the time of the presentation of the appeal of the order of exemption on its valid institution.

(22) The terms 'decree', ''judgment' and 'order' are respectively defined in the Code of Civil Procedure in the following terms :-

S. 2(2). 'Decree' means the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include-

(A)any adjudication from which an appeal lies as an appeal from an' order, or

(B)any order of dismissal for default,

S. 2(9). 'Judgment' means the statement given by the Judge of the grounds of a decree or order.'

S. 2(14). 'Order' means the formal expression of any decision of a Civil Court which is not a decree.'

(23) While the Delhi & Ajmcr Marwar Rent Control Act, 1952 provided that the Court may make a 'decree' or an 'order' for the ejectment of a tenant on certain conditions being satisfied, on the conclusion of proceedings under that Act, the Act provides that the authorities constituted under the Act may make an 'order' for the ejectment of a person, if the conditions requisite are satisfied. Sections 25 and 42 of the Act, which deal with the enforcement of such orders are in the following terms :

25. 'Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons there from:

PROVIDED that nothing in this section shall apply to any person who has an independent title to such premises.'

42. 'Controller to exercise powers of civil court for execution of other orders-Save as otherwise provided in section 41, an order made by the controller or an order passed on appeal under this Act shall be executable by the controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.'

(24) The provisions regarding appeals both in Section 38 and 39 of the Act also provides for appeals against the 'order'.

(25) The scheme of the Code clearly incorporates a distinction between a 'decree' and 'an order' and this becomes clear on a reference not only to the defining provisions but also to the provisions of Order Xli Rule I, Order Xlii Rule 1 & 2, Order Xltii Rule I and various other sections and orders particularly Sections 96 and 100 of the Code.

(26) There has been some controversy on the question of the exemption from filing copy of a decree and of an order, which though not a decree is a composite order containing an executable decision as also the reasons for it and it may be useful at this stage to consider these decisions.

(27) The earliest case on the subject appears to be a Division Bench decision of the Lahore High Court in the case of Mubarak All Shah v. Secretary of State, Air 1825 Lah 438, (3). In that case, an appeal had been filed against the 'award of the District Judge under the Land Acquisition Act 1894, without the copy of the award and it was held that under Section 26 of the Land Acquisition Act as amended in 1921 'the award of a District Judge shall be deemed to be a decree and the reasons for title award to be a judgment within the meaning of the Civil Procedure Code' and the appeal having been filed without the copy of the award wns incompetent and that this requirement could not be dispensed with. It is obvious that the provision of Order Xli Rule I of the Code was extended to the appeal under the Land Acquisition Act because of the amendment of Section 26 of the Act by the Amendment Act, 1921 v/hich specifically equated the 'award' to a 'decree' and 'the reasons lor the award' to 'a judgment' v/ithin the meaning of the Code and it follows from that judgment that but for the amendment, the provision of Order Xli Rule I of the Code would had have no application to such appeals. This judgment was later on followed in the case of Narsing Das v. Secretary of State, Air 1928 Lah 263(4). In this case also the' appeal had been filed subsequent to the amendment of 1921 but without being accompanied by a copy of the award under an erroneous impression that the practice followed in the High Court before the amendment contain continued to be followed. But since it was filed before the decision in the case of Mubarak Ali Shah (supra), the appellant's application under Section 5 of the Limitation Act was accepted principally on the ground that when the appeal was filed in the year 1922 even though Section 26 of the Land Acquisition Act had been amended and the award has been equated to be a decree, so as to attract the application of Order Xli Rule I, it was filed only a year after the amendment and almost 2 and a half years before the legal position obtaining after the amendment was for the first time explained in that case.

(28) In the case of Sohan Lal Lamba v. Sarvashri S. L. Kapur and A. L. Kapur, 1969 R.C.R. 174(5). Tatachari J. of this Court held that by virtue of the provisions of section 42 of the Act, the order of the Controller was a decree of a civil court only for purpose of execution of the same and that it could not be regarded as decree for other purposes and that the provisions of Section 42 could not be regarded as being in the nature of a deeming provision like Section 26 of the Land Acquisition Act and that in the absence of any such deeming provision under the Act. an order of the Controller could not be regarded as a decree except for the purpose of execution even though it may comprise within it the decision as also the reasons for it. This was a case in which a second appeal under Section 39 of the Act was filed against the order of the Rent Control Tribunal by which the Rent' Control Tribunal had dismissed the appeal before it under Section 38 of the Act on the ground that it was barred by time. The appeal before the Tribunal had been filed within time but before the appellant could obtain a certified copy of the order and the appellant had enclosed Along with the memorandum of appeal an uncertified copy of the order appealed against with an application for exemption from filing of the certified copy of the order. The Rent Control Tribunal directed that the appeal be registered and put up for scrutiny and was eventually admitted. The certified copy of the order was eventually prepared on December 30, 1967 but was.filed in the Tribunal on February 12, 1968. The impugned order having been passed on December 1, 1967, an application v/as made on June 14, 1968 under Section 5 of the Limitation Act and Order Xli Rule I and Section 151 of the Code of Civil Procedure praying that the appeal be held to have been filed within time and seeking in the alternative condensation of delay of about 13 days. The Tribunal dismissed the appeal as being barred by time in view of its conclusion that the provision of Rule 17 of the Rules was distinct from the provision of Order Xli Rule I of the Code and while under the latter the Appellate Court was empowered to exempt the certified copy of the judgment, there was no such power vested in the Tribunal and the Tribunal, thereforee, had no discretion in exempting the appellant from filing a certified copy of the order. It was further held that even if the order of the Tribunal admitting the appeal could be considered as granting exemption to the appellant, from filing the certified copy, the exemption was only for a temporary period i.e. up to the state of the preparation of the certified copy by the Copying Agency and was not an absolute order and that the failure of the appellant to file the certified copy before February 12, 1968 even though it was ready on December 30, 1967, was not justified. It was further held that the appeal would be deemed to have been filed only on February 12, 1968 and there was no sufficient cause for condoning the delay. In second appeal, the conclusion of the Tribunal that it had no power to grant exemption was dispelled and it was held that rule 17 .of the Rules read with Rule 23 of the Rules and the provisions of Section 38(3) of the Act clearly empowers the Tribunal to exercise the powers of a Court under the Code of Civil Procedure while hearing the appeal and enjoined the Tribunal as far as possible to be guided by the provisions of the Code. It was accordingly held that the Tribunal had the power to exempt the filing of the certified copy of the impugned order along with the memorandum of appeal. On behalf of the appellant, reliance was placed on a decision of the Jammu & Kashmir High Court in the case of Mst. Mali v. lassi Thakur, Air 1968 J & K 19(5A), in which it was held that where at the time of the presentation of an appeal under Civil Procedure Code, the appeal was admitted by the Court even though presented without a copv of the decree and the Court granted time to the appellant to file file copy of the order and the copy of the decree was eventually produced pursuant to the order of the Court, 'the appeal will be deemed to have been presented on the initial date of presentation.' In the view that the learned Judge took of the powers of the Tribunal, the decision in the appeal was not based on the said judgment of the Jammu & Kashmir High Court. A reference was also made to the decision of the Naspur High Court in the case of G.I.P. Railway Company v. Radha Kishan. Air 1926 Nag 57. in which it was held that 'where the memorandum of appeal stated that the copy of the judgment would be given afterwards and the appeals were admitted on presentation, notice being ordered to issue to the respondents, it must be taken that the Court dispensed with the copy of the judgment.' Reference was also made to an earlier decision of this Court, in which I. D. Dua. C.J., as he then was, had taken the view that where no specific order of exemption had been granted, the appellant could not claim any relief against the rigour of the law of limitation but having regard to the peculiar facts of that case, condoned the delay in filing the certified copy. Relying on these observations, in the second appeal, it was held that while admitting the petition, the Tribunal would be deemed to have granted the necessary exemption. The contention raised on behalf of the respondent that the provisions of Order Xli Rule I of the Code did not apply to the Tribunal, was dispelled. The decision of the Punjab High Court in the case of, to the effect that the filing of the award in appeal under the Land Acquisition Act, could not be dispensed with under Order Xli Rule I of the Code was, however, distinguished on the ground that the said decision was based on the provisions of Section 26 of the Land Acquisition Act as amended in 1921, by which every award made under the Act has been equated to a decree and the statement of grounds of every award to a judgment within the meaning of Section 2(2) and (9) respectively of the Code and it was held that there was no such deeming provision under the Act except to the extent the order of the Controller had to be executed as provided under Section 42 of the Act. It was accordingly held that the order of the Controller under the Act could not be regarded as a decree within the meaning of the Code except for the limited purpose of execution. It was further held that the appeal having been filed within time even though without a certified copy of the order, the admission if it would be deemed to have the effect of granting exemption to the appellant from filing a certified copy and the appeal must be regarded to have been filed when it was first presented and following the observations of Bhat J. in the case of Smt. Mali (supra), it was held that the question of condensation of delay was foreign to such a case. The contention on behalf of the respondent that there was no sufficient cause for the delay in filing the copy was also dispelled on the ground that the question of delay on the facts of that case could not be considered on the basis that the appeal was barred by time and that it could, if at all, be considered from the point to view whether there was unreasonable delay in filing the copy because the delay, in the view that the Court had taken of the question, did not involve any question of limitation and the delay of 13 or 14 days was, thereforee, not regarded as unreasonable so as to justify the penalisation of the appellant.

(29) In the case of Deshpande, J. of this Court was also concerned with the question whether the first appeal against the Controller's order before the Rent Control Tribunal was barred by time. The Controller's order was made on October 21, 1967 and the appeal against it was filed before the Tribunal on October 27, 1967 after the appellant had made an application for a certified copy of the order and the appellant had enclosed with the memorandum of appeal an ordinary copy of the order. The certified copy was prepared on December 2, 1967 but was obtained by the appellant on January 12, or January 15, 1968. The appellant also sought condensation of delay in filing the appeal. The Tribunal refused to condone the delay and held that the appeal was barred by time. The order of the Tribunal was upheld by this Court and it was held that the appellant had been negligent: that he did not even move an application for condensation of delay until very late that such an application should have been made Along with the appeal and following the decision of Dua, C.J., as he then was, in Jyoti Parshad (supra), it was held that until the prayer was granted. the appellant could not claim any relief against the rigour of the law of limitation. It was further held that by virtue of the provisions of sub-section (3) of Section 38 (wrongly printed in the report as 39), the Rent Control Tribunal had all the powers vested in a Court under the Code while hearing an appeal and that this would mean that the provisions of Order Xli would be applicable to such an appeal and that the order of the Controller, though not followed by a decree, was executable like a decree and, thereforee, in the position of a decree and. thereforee, copy had to be filed with the memorandum of appeal and inasmuch as such an order took the place of the decree itself under Order Xli Rule I, Tribunal had no power to dispense with the filing of it.

(30) The question that fell for consideration before Prithvi Raj, J. of this Court was whether the mislaying of certified copy of the orderof the Controller and its filing after expiry of limitation would justify condensation of delay in the presentation of a second appeal to the High Court under Section 39 of the Act. The second appeal had been filed without the certified copy of the order of the Tribunal but was accompanied by an application under Order Xli Rule 2 read with Section 151 of the Code seeking exemption from filing a certified copy of the order passed by the Controller and copy of grounds of appeal, the copies having not been made available when the appeal was filed. The exemption sought was allowed when the appeal came up for admission. The certified copy of the order made by the Controller was filed on August 8, 1972 although the impugned order of the Tribunal was made on April Ii, 1972. The appeal had been filed on July 10, 1972. It, however, appears that the certified copy had been misplaced by the clerk and was filed after it had eventually been traced out and delay for filing the certified copy was sought to be condoned. On the material placed before the Court, it was held that the appellant had obtained certified copy on July 24, 1972 and had delivered it to the clerk of the counsel who had misplaced it and that the mistake of the clerk constituted sufficient cause for the delay in filing the copy. The question whether certified copy of the order had to accompany the appeal or as to the powers of the Court to dispense with it and as to whether when it was filed without such copy, the exemption was granted of the appeal was admitted, whether the appeal was competent or not, were neither raised nor decided in this case.

(31) In the case of a Division Bench of the Punjab & Haryana High Court was concerned with the question if a Regular First Appeal filed in the High Court without attaching a copy of the decree to the memorandum of appeal was competent even though no decree had been drawn, was answered in the negative and it was held that even though the appeal had passed through the stage of admission, the proper course to follow would have been to adjourn the hearing of the appeal with a direction that the appellant should produce certified copy of the decree and where the appellant failed to pay the court fees on the amount decreed in his favor to enable the trial Court to draw up the decree, the High Court was not expected to direct the trial Court to draw a decree and the appeal was, thereforee, incomplete and incompetent. This, however, was the case to which the provisions of Order Xli Rule I of the Code applied because it was an appeal under the Code itself.

(32) In the case, a Division Bench of the Punjab & Haryana High Court was concerned with the question whether any copy of the decree need accompany the memorandum of appeal filed in the High Court under the Hindu Marriage Act and whether the provisions of Order Xli Rule I of the Code were applicable to such an appeal and it was held that Sections 33 and 2(2) and (9) of the Code had no application to decrees that may be made under the Hindu Marriage Act, the petitions under the Hindu Marriage Act were not something in the nature of a suit and the pattern provided for a suit need not, thereforee, be followed and the right of appeal conferred by Section 28 of the Hindu Marriage Act could not be made subject to any limitation in regard to an appeal under the Code: that the right of an appeallant in an appeal under Section 28 of the Hindu Marriage Act could not, in any manner, be circumscribed by provisions of Order Xli Rule I of the Code, that the term decree as defined under Section 2(2) of the Code did not necessarily apply to a decree under the Hindu Marriage Act having regard to the provisions of that Act and that consequently a copy of the decree need not accompany a memorandum of appeal preferred under the Hindu Marriage Act. A number of decisions of the Gujarat, Madras, Andhra Pradesh and also some earlier decisions of the Punjab High Courts were relied upon and certain decisions of the Punjab High Court which had taken the contrary view were overruled. It was further held that where petitions under the Hindu Marriage Act were dismissed, the order could not be described or classified as a decree under that Act or in the matter of an appeal under that Act and in such a case also, no copy of the decree need accompany the memorandum of appeal. It is, however, interesting to notice that while the provisions of the Code and the Hindu Marriage Act were considered for the purpose of determining the question in controversy before the Division Bench, no reference was made to Rule 2 (b), Part A, chapter I, vol. V of the Punjab High Court Rules & Orders.

(33) In Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others, : [1961]2SCR918 it was held that the requirement under Order Xli Rule I of the Code that certified copy of the decree should be filed Along with memorandum of appeal was mandatory and that in the absence of the decree, the filing of the appeal would be incomplete, defective and incompetent. It was further held that where an appeal had been filed although the decree had not been drawn, the appeal would be considered to be premature because it was a decree against which an appeal lay and in that event on proper scrutiny the appeal ought to be returned for presentation with a certified copy of the decree if it had been obtained- If the appeal had, however, passed through the stage of admission the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce certified copy as soon as it is supplied to him. Similarly, it was held that if the decree had been drawn and a copy had not been received by the appellant, the appeal must also be returned to be presented after the decree is filed and when the appeal is re-filed, the question of limitation may be examined on its merits.

(34) In the case of Shyam Sunder v. Satya Ketu and others. : [1967]1SCR752 the Supreme Court was concerned with an appeal under the Representation of People Act, 1951 and it was held that having regard to the provisions of the Act, Preparation of a decree on the conclusion of the trial of the election petition was unnecessary and that, thereforee, an appeal under Section 116-A of the Act need not be accompanied by any decree and all that was necessary was to file with the memorandum of appeal, the copy of the judgment of the Tribunal and no more, because provisions of Order Xli Rule I did not apply to such an appeal. A reference was made in this decision to the rules of the Allahabad High Court and it was noticed that while Rule 3 of Chapter 9 of the Rules, inter cilia, laid down that the memorandum of appeal shall be accompanied by copy of the decree to be appealed against and copy of the judgment on which it is founded, this chapter of the Rules as indeed the other chapter of the Rules dealt with first appeals specifically made subject to the provisions of Chapter XIV-A of the Rules which specifically dealt with down that every memorandum of appeal shall be accompanied by appeals from orders of election tribunal and Rule 2 of which laid 'certified copy of the order against which the appeal is directed' and it was held that latter provision is in conformity with the provisions of the Representation of People Act, 1951 which did not envisage the making of a decree on the conclusion of an election petition by the election tribunal. It was further held that the provisions of Order Xli Rule I of the Code 'cannot apply in full in the case of an appeal from an order of the election tribunal in an election petition, for, if the Act does not contemplate the framing of a decree and does not provide for an appeal from a decree, that part of Order Xli Rule I which requires the filing of a copy of the decree appealed from, cannot in the very nature of things apply to an appeal under Section 116-A of the Act. It was accordingly held that in an appeal under Section 116-A of that Act, all that was necessary to be filed with the memorandum of appeal was a copy of the judgment of the tribunal and no more.

(35) In the case Shakuntia Devi Jain v. Kuntal Kumari and others, : [1969]1SCR1006 it was held that any determina- corporation of a question within Section 47 of the Code was a decree and was appealable under Section 96 of the Code and, thereforee, under Order Xli Rule I of the Code, the Appellate Court could dispense with the filing of the copy of the judgment but not a copy of the decree and that decree and judgment being public documents and under Section 77 of the Evidence Act only certified copy of these may be produced in proof of their content memorandum of appeal could not be considered to have been validly presented unless it was accompanied by certified copies of the decree and of the judgment. It was further held that in some Courts, the decision under Section 47 of the Act was not made in the form of a decree but the decision was contained in the judgment and it was held that in such cases, filing of a certified copy of the decision was sufficient compliance with Order Xli Rule I but since the decision was a decree, the appeal was incompetent unless it was accompanied by a certified copy of the decision. It was further held that where the practice in Court in Delhi was not to draw the formal expression under Section 47 as a decree and in an appeal there from, the High Court was not aware of the defect of non-compliance of Order Xli Rule I and, thereforee, no order was passed by it dispensing with the filing of certified copy in such a case from the fact that the High Court admitted the appeal it need not be presumed to have dispensed with from the filing of the certified copy of the judgment. It was further held that in view of the fact that any determination under Section 47 of the Code was a 'decree' by virtue of the definition of the term by Section 2(2) of the Code, even though a formal decree was not drawn, the Appellant Court had no power to dispense with the filing of the copy and it was incumbent upon the appellant to enclose a copy of the decision with the appeal. This is how Bachawat, J., as he then was. spoke for the Court and stated the conclusion: and

'MOREOVER an order under Sec. 47 is a decree, and the High Court had no power to dispense with the filing of a copy of the decree. Ordinarily a decree means the formal expression of an adjudication in a suit. The decree follows the judgment and must be drawn up separately. But under Section 2(2), the term 'decree' is deemed to inelude the determination of any question within Sec. 47. This inclusive definition of decree applies to Order 41, Rule 1 In some Courts, the decision under Section 47 is required to be formally drawn up as a decree and in that case the memorandum of appeal must be accompanied by a copy of the decree as well as the judgment. But in some other Courts no separate decree is drawn up embodying the adjudication under Section 47. In such a case, the decision under Section 4 is the decree and also the judgment, and the filing of a certified copy of the decision is sufficient compliance with Order 41, Rule 1. As the decision is the decree, the appeal is incompetent unless the memorandum of appeal is accompanied by a certified copy of the decision. Our attention was drawn to the decision in Bodh Narain Mahto v. Mahavir Prasad, : AIR1940Pat176 where Agarwala J., seems to have held that where no formal decree was prepared in the case of a decision under Section 47 the appellant was not required to file a copy of the order with the memorandum of appeal. We are unable to agree with this ruling. The correct practice was laid down in where Mookerjec J., observed:-

'NOW it frequently happens that in cases of execution proceedings, though, there is a judgment, an order, that is, the formal expression of the decision is not drawn up. In such cases the- concluding, portion of the judgment which embodies the order may be treated as the order against which the appeal is preferred. In such a case it would be sufficient for the appellant to attach to his memorandum of appeal a copy of the judgment alone, and time should run from the date of the judgment. Where, however, as in the case before us, there is a ju

(36) Deshpande J. held that in the absence of any procedure provided by the Act with regard to second appeals to this Court such appeals must be 'governed by the normal procedure applicable to second appeals in the High Courts' and relying on the observations of Viscount Haldane, L.C. at page 552 in the case of Telephone Company Ltd. v. Postmaster General, 1913 A C 546, which d been referred with approval in a decision of the Full Bench of this Court in the case of it was held that 'the High Court in dealing with the second appeals under Section 39 of the Act must, thereforee, be held to act as a High Court in accordance with the procedure laid down in Order 42 read with Order 41 of the Code of Civil Procedure.' The second appeal in that case having not been accompanied by a certified copy of the order of the trial Court although a copy of the judgment appealed against was enclosed, was held to have been improperly filed. It may, however, be pointed out that in that case no application for exemption to file the copy had been filed nor was there any order made, exempting the appellant from filing the certified copy of that order. The appellant also did not make any application for condensation of delay. The appeal was, thereforee, held to be barred by time. The question whether the order of ejectment, whether original or appellate, could be treated as a decree and whether certified copies of such orders could be exempted or not, did not, thereforee, fall for consideration.

(37) In the case, Deshpande J. was concerned with the question whether a respondent in a second appeal under the Act was entitled to file cross-objections and it was held, relying on the decision of the Supreme Court in that the procedure for dealing with second appeal was to be determined by the High Court and on the observations of the House of Lords (supra) and of the Full Bench referred to above, it was held as follows :

'IN Collector, the Supreme Court held that in dealing with a second appeal under section 39 of the Act, the High Court must be held to act as a High Court and not as a persona designata. The procedure of the High Court in a second appeal is governed by Order Xlii read with Order Xli Civil Procedure Code.'

(38) In M/s. Raghunandan Saran Ashok Saran (J.H.F.) through Shri Ashok Saran Karta v. Shri H. C. Thukral, (13A), B. C. Misra J. held that a second appeal which was not accompanied by a certified copy of the order of the Addl. Controller and in respect of which no order of exemption had been obtained, was not maintainable although the second appeal was also decided on merits against the appellant. In this case, the appeal had been admitted to a hearing but no order was obtained by the appellant on the application for exemption.

(39) In Collector, the Supreme Court was, inter alia, concerned with the question as to the procedure which would regulate appeals to the High Court under Section 19(1)(f) of the defense of India Act (1939) and it was held that such appeals were appeals to the High Court and not to any Judge of the High Court and if neither the Act nor the Rules framed there under prescribed any special procedure for the disposal of such appeals, these ought to be disposed of just in the same manner as other appeals in the High Court and to be determined according to the rules of practice and procedure of that Court. The observations of viscount Haldane L.C.. in National Telephone Co. referred to above were quoted with approval and it was held that the rule was well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court. It may be pointed out that in this case the Supreme Court was not concerned with the second appeal under the Act as the judgment of Deshpande, J. in the case of Jawahar Singh (supra) would seem to indicate. As pointed out above, the Supreme Court was dealing with appeal under Section 19(l)(f) of the defense of India Act, 1939.

(40) In The Municipal Corporation of Delhi through G.M. D.T.U. Scindia House, New Delhi v. Kuldip Lal Bhandari, : AIR1970Delhi37 , a Full Bench of this Court was called upon to consider the question whether the decision of a Single Judge of the High Court in an appeal under Section 110-D of the Motor Vehicles Act, 1939 was a 'judgment' within the meaning of clause 10 of the Letters Patent and was, thereforee, appealable to a Division Bench of the Court, was answered in the affirmative on the ground that merely because the appeal was from the decision of the tribunal and not a Court and the proceedings before it were not a suit and its decision was only an award, would not justify the conclusion that the High Court hearing the appeal would not be a Court or the proceedings before the High Court would not be in its ordinary jurisdiction and the decision of the High Court on such appeal would not be a 'judgment'. It was further held that the High Court hearing such an appeal was not acting as persona designata or as a tribunal so as to make itS judgment an award. In arriving at the aforesaid decision, the Full Bench relied upon the observations of Lord Parker of Wadding in to the following effect :

'WHERE by statute matters are referred to the determination to a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.'

It may be pointed out that in that case reference to Railway Canal Commission was made by agreement of parties, and it was contended that the Commission acted not as a Court but as Arbitrators and, thereforee, no appeal would lie against its decision. The contention was repelled and it was held that the reference to the Commission was to it as a Court and not as Arbitrators. Viscount Haldane L.C. observed as follows at page 552 of the report :

'WHEN a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are io attach and also that any general right of appeal from its decisions likewise attaches.'

(41) After hearing learned counsel for the parties and on a reviev; of the various decisions referred to above, I am of the view that the appeal was incomplete and incompetent without the accompaniincnl of the certified copies of the impugned order and of the order made in the first instance, that the admission of the appeal to a hearing did not validate it, the exemption granted to the appellant from filing the certified copy of the impugned order and the direction that the same may be filed as early as possible was without the authority of law as no such exemption could be granted and that the appeal would be deemed to have been validly instituted only after the necessary copies were filed by the appellant.

(42) In the absence of any provision in the Act or in the Rules framed there under in respect of the practice and procedure which may govern the institution and hearing of an appeal under Section 39 of the Act, such institution and hearing had to be regulated by the existing practice and procedure obtaining in this Court in so far as such practice and procedure could be applied to second appeals under the Act and that being so, the memorandum of appeal had to be accompanied by copies of the impugned order as also of the order made in the first instance. While the copy of the order made in the first instance could be dispensed with in view of the High Court Rules referred to above the copy of the impugned order could not be dispensed with even though the order did not amount to a decree as defined in Section 2(2) of the Code because it was that order which was appealed against and the principle which is incorporated in the provisions of Order Xli Rule I as indeed Rule 2 (b) of the High Court Rules referred to above, is that no exemption could be granted in respect of the copy of that which was appealed against arid it would be a logical extension of that Rule to the case where the appealable order is made to require that the order appealed against must accompany the memorandum of appeal and such accompaniment could not be dispensed with. This is so because copy of that which is appealed against could not be dispensed with because such an appeal would not be a complete appeal and the only exception to this Rule is in the case of Letters Patent Appeal by virtue of Rule 4 of the said Rule and this is so because the judgment appealed against in such a case is a judgment of the very Court in which the appeal is filed. A certified copy of the impugned order or decree was necessary because of the provisions of Section 77 of the Evidence Act and such a requirement would not be necessary where the original judgment or decree is available.

(43) It may be pointed out that under Order Xli Rule I of the Code of Civil Procedure as indeed the High Court Rules, the copy of the decree could not be dispensed with not because it is a copy of the decree or because there is anything sacrosant about a decree; it could not be dispensed with because the appeals which are entitled to be regulated by Order Xli Rule I are appeals against the 'decree' and not the judgment and that is why the copy of the judgment may be dispensed with but not the decree. In cases where no decree is drawn and the order contains not only an executable decision but the reasons for it, such an order, though not deemed to be a decree, would be in the same position as a decree for the purpose of the application of the aforesaid practice and procedure because, the appeal in such cases is against the order as in cases under the Act.

(44) The reasoning of the Lahore High Court in the case of Mubarak Ali Shah (supra) that but for the provisions of Section 26 of the Land Acquisition Act, as amended, the filing of the copy of the award could be dispensed with and of the punjab High Court in the case of Daijit Singh Pyara Singh (supra) do not appear to me to be correct because these decisions ignore the reason for the provision in the Code that a copy of the decree could not be dispensed with to which I have drawn attention above and I say so with great respect. Tatachari J. in the case of Sohan Lal (supra) and Deshpande J. in the case of Ram Mehar (supra) appear to have taken conflicting views and I would have normally recommended the matter being referred to a larger Bench having regard to the requirement of judicial prop^ riety but I refrain from adopting that course firstly, because I am not basing my decision on the finding with regard to the power of the Court to grant exemption and secondly, because the view expressed by Deshpande J, with which I concur, would not only appear to be consistent with the reason underlying the provisions of Order Xlt Rule I of the Code of Civil Procedure but would also appear to be in consonance with the observations of the Supreme Court made in the cases of Sham Sunder (supra) and Srnt. Shakuntia Devi Jain (supra) and I say so with utmost respect.

(45) In the result, I held that the appeal was incompetent until the certified copy of the impugned order was filed and the Court had no power to grant exemption from filing the certified copy of the impugned order.

(46) Point Iii . Although I have taken the view that the appeal was incompetent until the certified copy of the impugned order was filed as the Court had no power to grant exemption from filing the aforesaid copy, for the purpose of the decision of this point, it is immaterial whether the Court had power to grant the exemption or not because the decision on this point, in the way I have looked at it, must be against the appellant either way.

(47) The question for consideration, thereforee, would be whether on the facts and circumstances of this case and the law relative thereto, it could be said that there was sufficient cause for the delay in filing the certified copies of the orders so as to justify the direction condoning the delay irrespective of whether there was any valid order granting the exemption to the appellant from filing the certified copies of the impugned order.

(48) It may be pointed out that although in seeking condensation of delay, the appellant has invoked the provisions of Section 5 of the Limitation Act, the statute of limitation has no application to the present proceedings and the matter would have to be regulated by proviso to Section 39 of the Act which is in the following terms:

'PROVIDED that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.'

(49) As the language of the proviso and of the provisions of Section 5 of the Limitation Act would appear to be almost ana-logeus, the principles laid down to regulate the exercise of discretion under Section 5 of the Limitation Act would be relevant in considering whether there was sufficient cause in the present case for the delay in filing the certified copies of the orders.

(50) As has been pointed out above, the impugned order was made on November 9, 1970 and the application for certified copies was made on November 12, 1970 which were prepared on January 13, 1971 and the appellant having meanwhile presented the appeal on December 14, 1970 aftd had obtained an order at the admission stage that the copies of the order be filed 'at a very early date', the copies were eventually filed on November 21, 1972 after omission had been discovered on November 15, 1972 on an inspection of the records and a search for the copies was made and they were found amongst the papers of the appellant's nephew on November 17, 1972.

(51) According to the appellant) he being an old man of 75 years, had entrusted the task of obtaining the certified copies to his nephew with a direction that the same be handed over to the counsel and unfortunately the nephew having obtained them within time failed in his duty to carry out the instructions with the result that the same were not handed over to the counsel and accordingly could not be filed within time but were filed after the expiry of the period of limitation and it was alleged that the appellant had done the best he could and there was, thereforee, sufficient cause for condoning the delay. The allegations of the appellant were denied on behalf of the respondents.

(52) It is well settled that where any suit or proceedings are barred by limitation, the opposite party gets a very valuable right and when the party in default seeks to justify the delay, it must explain every day of the delay. It is equally well settled that the expression 'sufficient cause' should be so construed as to advance substantial justice and should have liberal construction when no negligence or inaction or want of bona fide are involved. It is equally well settled that normally the negligence of an agent is the negligence of a party and the only exception to this rule may be cases in which the party had not merely left the matter to the agent but had taken all other steps that were necessary to prosecute the proceedings and notwithstanding that the agent was guilty of negligence or the delay had been occasioned by a bona fide mistake of the agent.

(53) Having regard to the aforesaid principles and after taking into account the circumstances of this case I am of the view that the appellant had not been able to make out a case for the delay being condoned.

(54) APPELLANT'S application seeking condensation is very vague and gives no indication of the seriousness or nature of his illness which necessitated his entrusting the conduct of the application for copies to his nephew. The allegations that the nephew had been directed to obtain copies and hand them over to the counsel and that he obtained the copies and either kept them in his papers or misplaced them are not supported by any affidavit of the nephew. The conduct of the nephew in neglecting the interest of the appellant and in his failure to take necessary steps to ensure compliance with the instructions has not been explained. The nephew was obviously negligent in the discharge of his duties, assuming that he had been entrusted with the task of obtaining copies and delivering them to the counsel, and the nephew being in the postition of an agent of the appellant, the negligence of the agent would be presumed to be that of the principal. It appears that the appellant having entrusted the task of obtaining and delivering the copies of the orders remained under a false sense of security and thought that nothing further needed to be done by him to ensure that his instructions had been duly complied with. It is admitted that the copies were eventually found on November 17, 1972 but were filed on November 21, 1972 and this delay has also not been explained.

(55) If the Court had no power to grant exemption in respect of the impugned order then obviously the appeal was not competent and would be deemed to have been filed only when a certified copy of the impugned order was filed. If the Court had the necessary power then also the exemption granted to the appellant was not total as if the filing had been completely dispensed with but was partial in that the appellant was required to file the copies 'at a very early date.' The effect of this order would be as if the appeal had been admitted subject to the appellant's filing the necessary copies either within the period of limitation provided for the filing of the appeal or otherwise as early as the appellant could do so which obviously would mean as soon as possible after the appellant had been able to obtain a certified copy from the Copying Agency. The appellant, however neither filed the copies within the period of limitation nor could be said to have done it as early as possible because it became possible for the appellant to file the copies when the same were obtained from the Copying Agency. It is not possible to accept the contention that on the exemption being granted, the appeal had become competent and continued to be so even though the direction with regard to the filing of the copy was not carried out. It was not a direction which was independent of the order admitting the appeal and the consequence of non-compliance with the direction, assuming that such a direction could be made, would be that the condition on which the admission had been granted, having not been complied with, there was no proper admission until the condition had been complied with.

(56) I am, thereforee, of rhe view that the appellant was negligent in the matter of filing the certified copy of the impugned order and of the order made in the first instance and on the facts and circumstances of his case, it could not be said that there was sufficient cause for delay which may entitle the appellant to the condensation prayed for by him.

(57) In the result the appeal was barred by time and is accordingly B dismissed but, in the circumstances, with no costs. C.M. 1223/72 also stands dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //