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Perumal Pillai Vs. Parameswaran Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 5 of 1981 in S.A. No. Nil of 1981
Judge
Reported inAIR1981Ker203
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 - Order 41, Rule 11 - Order 42, Rules 1, 2 and 2(1); Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(1)
AppellantPerumal Pillai
RespondentParameswaran Nair and anr.
Appellant Advocate P. Gopalakrishnan Nair, Adv.
Respondent Advocate P.K. Balasubramoniam, Adv.
DispositionPetition dismissed
Excerpt:
- - the office considered this failure a defect and so, on october 23, 1979 returned the memorandum of appeal for the defect to be cured within ten days. the latter aspect apart, i am not satisfied that the amending act has created a happy situation as submitted by counsel for the petitioner. order xlii, rule 1, as amended by act 104 of 1976, requires the court at the time of making an order under order xli, rule 11 to formulate the substantial question of law as required by section 100, this function can be satisfactorily and effectively exercised if the judgments of the two courts are before the high court. 5. on the merits the petitioner must fail on the inconsistency of the grounds pleaded by him......of the court of first instance.' on the terms of this rule the petitioner was a defaulter and his appeal defective in that he had not produced certified copy of the decree and judgment of the court of first instance. rule 2 added by the new civil p. c. amendment act, act 104 of 1976 contains no provisions to this effect and that is the basis of the petitioner's argument that after this amending act, it is no longer mandatory that judgment and decree of the court of first instance should be produced with the memorandum of appeal in a second appeal. on this argument production of these records at least suo motu would be unnecessary and irrelevant, unless the court orders their production subject to the risk of the order being perhaps challenged as unwarranted by the amendment act. the.....
Judgment:
ORDER

G. Balagangadharan Nair, J.

1. Petitioner filed the Second Appeal on October 17, 1979 without producing the judgment and decree of the trial court. The office considered this failure a defect and so, on October 23, 1979 returned the memorandum of appeal for the defect to be cured within ten days. The petitioner did not protest and represented the memorandum with the defect cured on December 12, 1980 after a delay of 1 year and 43 days and with this petition to condone the delay. The respondents to whom notice was ordered objected to the condonation of the delay and the petitioner has filed an affidavit in reply. Apart from seeking condonation of the delay, the petitioner contends that there was no initial defect at all, as assumed by the office and therefore no occasion to condone the delay, because the Civil P. C. does not require production of the judgment and decree of the trial court with the memorandum in a Second Appeal.

2. The amendment made by the High Court in 1959 to Order XLII which deals with appeals from appellate decrees, provided by Rule 2 (1) that the memorandum of appeal 'shall be accompanied by a certified copy of the decree and judgment of the Appellate Court and (unless the court dispenses therewith) a certified copy of the decree and judgment of the court of first instance.' On the terms of this rule the petitioner was a defaulter and his appeal defective in that he had not produced certified copy of the decree and judgment of the court of first instance. Rule 2 added by the new Civil P. C. Amendment Act, Act 104 of 1976 contains no provisions to this effect and that is the basis of the petitioner's argument that after this Amending Act, it is no longer mandatory that judgment and decree of the court of first instance should be produced with the memorandum of appeal in a Second Appeal. On this argument production of these records at least suo motu would be unnecessary and irrelevant, unless the court orders their production subject to the risk of the order being perhaps challenged as unwarranted by the Amendment Act. The latter aspect apart, I am not satisfied that the Amending Act has created a happy situation as submitted by counsel for the petitioner.

3. Section 97 (1) of the Amendment Act provides :

'Section 97 (1). Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act shall stand repealed.'

4. This amendment came into force on February 1, 1977 and the Kerala High Court amended Rule 2 of Order XLII in 1959. The Kerala Amendment, on the terms of Section 97(1) would stand repealed except insofar as it is consistent with the Code as amended by Act 104 of 1976. There is no inconsistency between the two; on the other hand there is consistency between them. Order XLII, Rule 1, as amended by Act 104 of 1976, requires the Court at the time of making an order under Order XLI, Rule 11 to formulate the substantial question of law as required by Section 100, This function can be satisfactorily and effectively exercised if the judgments of the two courts are before the High Court. The Kerala Amendment is not only not inconsistent with Order XLII as amended by Act 104 of 1976 but is entirely consistent with it. That Amendment stands unrepealed and the petitioner's contention to the contrary has to be rejected as untenable.

5. On the merits the petitioner must fail on the inconsistency of the grounds pleaded by him. While this petition states that as the petitioner did not have with him the judgment and decree of the trial court when the appeal was filed a letter was sent to him but it was misplaced and that fact was noticed only when he met counsel the week before, (the petition is dated December 19, 1980). To support the petition, the petitioner filed his affidavit on June 12, 1981 stating that the letter from Counsel's Office did not reach him and so he was not aware of the defect of which he came to know only during the first week of December. It is difficult to square misplacement of the letter with its non-receipt. As misplacement of the letter received and read implies timely knowledge of the defect and would provide no presentable case to condone delay, the affidavit attempts to replace that account with the story of non-receipt of the letter. I find no sufficient cause to condone the delay. The petition is dismissed.


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