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Sheik Meera Saheb and anr. Vs. Mohammed Kyathi Saheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1944Mad90; (1943)2MLJ517
AppellantSheik Meera Saheb and anr.
RespondentMohammed Kyathi Saheb
Cases Referred and Bermull Sowcar v. Velugramani
Excerpt:
- - in both the cases the court (best and subramania ayyar, jj. rules which are designed to promote efficient and good hearing of appeals are grossly abused as they have been done in this case. order 41, rule 1, civil procedure code clearly gives the appellate court power to dispense with the production of a copy of the judgment......and asked for printed copies of the judgment, he was met with opposition. a note was made on the copy application evidently by some clerk that under rule 135, clauses (3) and (5) of the civil rules of practice and circular orders of the high court, a second application for a copy of the printed judgment could not be made. thereupon notice was given to the opposite party who naturally opposed the grant of the application. the district munsiff heard arguments and dismissed the application, holding that it did not lie. when the appeal was taken up for arguments by the lower appellate court, this difficulty was mentioned but instead of having the judgment printed in the appellate court if it was felt necessary, the appellate judge held that because the appellant had undertaken to produce.....
Judgment:

Somayya, J.

1. In this case an order was passed by the District Munsiff on an application under Order 21, Rule 2, Civil Procedure Code. An appeal was filed with a certified copy of the decretal order and a manuscript certified copy of the judgment was also filed. It would appear that printed copies of the judgment were also applied for in the trial Court and that the application was dismissed as the printing charges were not paid within seven days after they were called for. Along with the appeal memorandum, the appellant presented an application for dispensing with the production of printed copies, undertaking to file them later on. The application was granted; the appeal was taken on file and numbered and notice went to the respondents. When with a view to fulfil the undertaking given to the appellate Court the appellant went to the trial Court and asked for printed copies of the judgment, he was met with opposition. A note was made on the copy application evidently by some clerk that under Rule 135, Clauses (3) and (5) of the Civil Rules of Practice and Circular Orders of the High Court, a second application for a copy of the printed judgment could not be made. Thereupon notice was given to the opposite party who naturally opposed the grant of the application. The District Munsiff heard arguments and dismissed the application, holding that it did not lie. When the appeal was taken up for arguments by the lower appellate Court, this difficulty was mentioned but instead of having the judgment printed in the appellate Court if it was felt necessary, the appellate Judge held that because the appellant had undertaken to produce printed judgments and that was not done, the appeal ought to be dismissed. This is really technicality with vengeance. The order is wholly indefensible. There is nothing in the Rules of Practice prohibiting a second copy application and the respondent's advocate was not able to show me any Circulars or orders to this effect It was not open to the District Munsiff to say that he would not entertain a second or third or later application. It was his obvious duty to give the printed copy leaving it to the appellate Court to excuse the delay in producing the printed judgment. The appellate Court in this case granted time to the appellant to produce printed copies of the judgment of the trial Court and this means that the delay in producing printed copies was excused. The appellant was disabled from fulfilling the undertaking given to the appellate Court to produce printed copies by the curious attitude taken by the District Munsiff. An application to restore the first copy application to file is permissible in proper cases--see Ramanuja Iyengar v. Narayana lyengar I.L.R.(1895) Mad. 374 and Bermull Sowcar v. Velugramani : AIR1942Mad369 . In these cases the first copy application was dismissed for not supplying copy stamps in time! and later on, an application was made to restore the first application and to grant copies. Copies were granted and appeals were filed with those copies. If time for filing the appeals had been calculated treating the second application as an independent one, the appeals would have been barred. In both the cases the Court (Best and Subramania Ayyar, JJ. in the first case and Patanjali Sastri, J., in the other case) held that the appeals were in time and that the second application might in proper cases be treated as a continuation of the first one. It was never doubted that a second application could be entertained and copies granted thereon. It is a travesty of justice for the first Court to deny the appellant a printed copy and for the appellate Court to dismiss the appeal on the ground that printed copies were not produced. Courts are in existence to do justice to the parties and not to dismiss appeals on such grounds. Rules which are designed to promote efficient and good hearing of appeals are grossly abused as they have been done in this case. The appellate Judge might have ordered printing to be done in his Court and to dismiss an appeal under such circumstances betrays utter disregard of his duty. Order 41, Rule 1, Civil Procedure Code clearly gives the appellate Court power to dispense with the production of a copy of the judgment. Only the production of the decree copy is compulsory.

2. I reverse the decree of the lower appellate Court and remand the appeal to it for disposal. The certified copy of the judgment of the first Court has been printed by the appellate Court for the purposes of this second appeal and this will be utilized for the appeal and the appellant will not be asked to produce any other copy. Costs of all the Courts will abide and be provided for by the lower appellate Court.


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