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State of Madras Represented by Spl. Tahsildar Regional Engineering College Scheme, Tiruchirapalli Vs. Muthurethinam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Case NumberC.M.P. Nos. 13533 to 13535, 13539, 13540, 13542 and 13543 of 1967 in Appeal S.R. Nos. 30085, 30089,
Judge
Reported inAIR1970Mad353
ActsLimitation Act, 1908 - Sections 12(2); Civil Prcedure Code , 1908 - Order 41, Rule 1
AppellantState of Madras Represented by Spl. Tahsildar Regional Engineering College Scheme, Tiruchirapalli
RespondentMuthurethinam and ors.
Appellant AdvocateG. Ramaswami, Addl. Govt. Pleader
Respondent AdvocateN. Sivamani, ;P.S. Srisailam and ;N.K. Ramaswami, Advs.
Excerpt:
limitation - interpretation - section 12 (2) of limitation act, 1908 - certified copy of common judgment filed in one appeal - copy of judgment not filed in other connected appeals - whether time taken in getting copy of judgment available to other connected appeals - filing of copy of judgment dispensed with in connected appeals - time taken in getting copy of judgment which filed along with main appeal to be excluded while computing limitation to file such appeals. - .....only by a copy of the relevant decree along with a petition to dispense with the production of printed copies of judgment on the ground that in the main appeal, 12 printed copies had been filed. along with this, a petition has also been filed, in each of these appeals, to excuse the delay, if any, in filing the appeals as they would be barred by limitation if the time taken for obtaining certified copies of the relevant decrees alone is taken into account under section 12 of the limitation act, hereinafter referred to as the act.2. in all cases, where a common judgment is delivered disposing of a batch of cases, the practice of this court has been to dispense with the production of the printed copies of the judgment in the rest of the appeals provided in one appeal the requisite.....
Judgment:
ORDER

Ramamurti, J.

1. In a batch of Land Acquisition cases, a common judgment was delivered by the trial Court. The State of Madras obtained 12 printed copies of judgment and filed an appeal which (for the sake of convenience) may be referred to as the main appeal. In the other appeals, the memorandum of appeal was accompanied only by a copy of the relevant decree along with a petition to dispense with the production of printed copies of judgment on the ground that in the main appeal, 12 printed copies had been filed. Along with this, a petition has also been filed, in each of these appeals, to excuse the delay, if any, in filing the appeals as they would be barred by limitation if the time taken for obtaining certified copies of the relevant decrees alone is taken into account under Section 12 of the Limitation Act, hereinafter referred to as the Act.

2. In all cases, where a common judgment is delivered disposing of a batch of cases, the practice of this court has been to dispense with the production of the printed copies of the judgment in the rest of the appeals provided in one appeal the requisite number of printed copies of the common judgment are filed. Following this practice, (we?) dispense with the production of the copies of the printed judgment in the present batch of appeals.

3. Mr. Sivamani, learned counsel for the respondent drew our attention to the decision of Byers J. in Jami Kurmanus In re, : (1945)1MLJ263 in which the learned Judge after comparing the language of Order XLI, Rule 1, C.P.C. and Order XLI-A, Rule 2, Sub-rule (i), C.P.C., held that in the case of appeals to the High Court, it has no power to dispense with the production of the copies of the judgment. Our attention was also drawn to the decision of Chandrasekhara Aiyar J. in Rayalla Ramappa in re, : AIR1946Mad163 in which the learned Judge differing from Byers J. held that the High Court has such a power. With respect we agree with the decision of Chandrasekhara Aiyar J. A reading of all the provisions of Order XLI-A dealing with appeals to the High Court from the subordinate courts shows that the provisions of Order XLI would undoubtedly apply to appeals in the High Court subject only to the modifications contained in Order XLI-A, The provisions of Order XLI-A have to be necessarily read into and applied along with the provisions of Order XLI and the provisions of Order XLI-A would prevail only to the limited extent to which there is a special provision. In other words, the procedural law governing appeals to the High Court is the combined operation of Order XLI and Order XLI-A the latter Order prevailing only to the limited extent of a different specific provision. The provisions of Order XLI-A cannot be applied in isolation. So far as the requirement of production of the copy of the judgment is concerned, in the case of an appeal to the High Court, a memorandum should be accompanied by printed copies and they should be twelve in number. It is only to this extent that there is a variation and in other respects, the provision in Order XLI would apply and this court will have undoubted jurisdiction to dispense with the production of the copies of judgment in a proper case.

4. If a Sub-Court or a District Court has jurisdiction and power to dispense with the production of a copy of the judgment in an appeal preferred to it, we do not find any reason why the High Court should be denied such a power, in the case of an appeal preferred to the High Court. The provision for dispensing with is specially provided in Order XLI, Rule 1 only because of the clear necessity felt for such a provision, as otherwise, serious hardship and injustice would arise. In innumerable cases, the appellant may not be in a position to file the copy of the judgment and unless such a power is reserved to Subordinate Courts, the right of appeal itself would become illusory and futile. It is obvious that the position must be the same with regard to appeals preferred to the High Court and there is no basis to make any distinction between the two sets of appeals. That, this is the only correct view, also follows from the provisions of Order XLII governing procedure in the case of second appeals. Order XLII contains only one rule to the effect that the rules of Order XLI and Order XLI-A shall apply so far as may be to appeals to the High Court from appellate decrees. There cannot be any doubt that in the case of a second appeal, the High Court will have power to dispense with the production of judgment. The Madras Amendment consists of three rules. Order XLII, Rules 1, 2 and 3. Order XLII, Rule 1 states that Orders XLI and XLI-A shall apply to second appeals to the High Court We are not prepared to accept any interpretation which will Involve this anomaly, that the High Court will have power in the case of second appeals, to dispense with production of copies of judgment and no such power in the case of first appeals. We do not find anything either in the scheme or the language of the provisions of Order XLI-A to deny the High Court such a power which is so vital and necessary. For all these reasons and following the uniform practice of this court, the production of the copies of judgment is dispensed with in this batch of appeals.

5. The question next arises whether there is any delay in filing these appeals; this point is linked up with the question whether the appellants are entitled to the exclusion of time taken for obtaining the printed copies of the judgment which have been filed in the main appeal. (After referring to the relevant case law, His Lordship put up the papers before his Lordship the Chief Justice for malting reference to a Full Bench.)


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