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In Re: Chintapatla Venkatanarasimha Ramchandra Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad358
AppellantIn Re: Chintapatla Venkatanarasimha Ramchandra Rao and ors.
Cases ReferredBidhu Bhusan Bakshi v. Kalachand Roy
Excerpt:
- - once again the memorandum was returned because the decretal order of the first court still remained unstamped, because some of the requisitions made on the previous return had not been satisfied and for other reasons......deal with the case, with which i shall have to deal later, of a memorandum of appeal which, at the time of presentation, is incomplete. in agreement with the calcutta decision i shall, then take it that the memorandum of appeal now under notice, in that it has not been registered, is not to be regarded as an appeal that is before this court but has only to be considered as a memorandum of appeal that has been presented to the court. i have next to consider order 41, rule 3(1). this provides thatwhen a memorandum of appeal is not drawn up in the manner hereinbefore described it may be rejected or be returned to the appellant for the purpose of being amended within a time to be fixed by the court, or be amended then and there.4. how a memorandum of appeal is to be drawn up is set out in.....
Judgment:
ORDER

Bardswell, J.

1. This is a petition for excusing the delay in representing a Memorandum of Civil Miscellaneous Second Appeal. The memorandum of appeal was first filed on 14th April 1930. It was returned on 11th June 1930 for revision of the cause-title and preamble and of certain grounds, and also for the filing of certain affidavits and the stamping of the decree of the first Court. The time allowed was one week but the re-presentation was not made till 19th December 1930, that is after a delay of 155 days. The memorandum was again returned on 24th December 1930, because provisions of law had not been entered, because the affidavit did not contain certain information, because the cause title and preamble needed revision and because the petitions had not been properly stamped. The re-presentation this time was on 30th April 1931, the delay being one of 114 days. Once again the memorandum was returned because the decretal order of the first Court still remained unstamped, because some of the requisitions made on the previous return had not been satisfied and for other reasons. The re-presentation on this occasion was not till 2nd August 1932, after a delay of 388 days. Even then, after all this immense delay, all the requisitions had not been complied with. The actual period of delay that tells against the petitioners is 627 days.

2. The reasons given for the delay by Mr. P. Satyanarayana Rao are that the clients did not send him the full instructions to comply with the requisitions of the office, and that as soon as the papers were returned he wrote to his clients to send the money, but that, owing to the dullness of the money market, they sent the money only recently. The petition for excusing delay was put in on 19th December 1930 and relates only to the delay in first re-presentation. There has been no supplementary petition and no supplement to the first petition in respect of the delays which have subsequently occurred. The reasons given for the first delay are not adequate while those given for the subsequent delays are nil. The delays cannot therefore be excused.

3. On my holding that the delays could not be excused Mr. Satyanarayana has gone on to contend that it is not open to me to reject or dismiss the memorandum of appeal, but that the most that I can do is to order that his clients must pay the costs of the appeal in any event. He has referred to the various provisions of law under which an appeal can be rejected or dismissed, but the only one to which I find it necessary to refer is Order 41, Rule 3 which allows for the rejection of a memorandum of appeal that has not been admitted. Provisions of law as to how an appeal can be dealt with after admission have nothing to do with this case. Mr. Satyanarayana, indeed, calls to notice the Privy Council decision in Nagendranath v. Suresh Chandra , in which it was held that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptance of the term, and that it is no less an appeal because it is irregular or incompetent. But that case, which has to deal with a matter of limitation and has no concern with the point now under consideration, was one in which what was held to count as an appeal had been admitted and heard as such. It does not overrule the decision of the Calcutta High Court in Bidhu Bhusan Bakshi v. Kalachand Roy : AIR1927Cal775 , in which it has been held that an appeal cannot be held to have come properly before a Court until it has been registered. Neither does it deal with the case, with which I shall have to deal later, of a memorandum of appeal which, at the time of presentation, is incomplete. In agreement with the Calcutta decision I shall, then take it that the memorandum of appeal now under notice, in that it has not been registered, is not to be regarded as an appeal that is before this Court but has only to be considered as a memorandum of appeal that has been presented to the Court. I have next to consider Order 41, Rule 3(1). This provides that

when a memorandum of appeal is not drawn up in the manner hereinbefore described it may be rejected or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court, or be amended then and there.

4. How a memorandum of appeal is to be drawn up is set out in Order 41, Rule 2(1) which provides that it shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from. Now in the present case the memorandum of appeal, as at first presented, was defective in some of its grounds. Three of them contained clerical errors and from a fourth there was an omission. But still, in spite of these defects, the grounds as originally stated were intelligible, and I think that it would be standing too much on technicalities to say that the appeal was not drawn up in the prescribed manner because of the defects that were found in them; while of course there were other grounds to which no objection was found and in respect of which the memorandum of appeal was in time. I do not then think that the memorandum of appeal under notice can be rejected under the provisions of Order 41, Rule 3.

5. I cannot, however, follow Mr. Satyanarayana when he contends that, if the memorandum of appeal cannot be rejected under that rule, it cannot be rejected at all. As I have already said, this case has to be regarded as one of appeal that has not yet been admitted and not as one of an appeal that is before the Court as such. Before an appeal is admitted it has to be completed. This is a matter so obvious that no rule is necessary for it, and I can find nothing in the Privy Council case already referred to that runs at all to the contrary. Now, in the present instance, the memorandum of appeal as presented was not complete. Not only were there the defects, to which I would not attach too much importance, in some of the grounds, but there were also a number of other defects which were of a more serious nature. One of these was that the decree in the Court of first instance had not been stamped, nor indeed has it been stamped even yet. Another was the absence of affidavits as to how persons named as legal representatives held that position. Even yet those affidavits are not sufficient. As long as there are such defects the memorandum of appeal cannot be entertained and all that the Court can do is to return it and give the petitioners the chance of putting it again in a complete form. Any time that it allows for re-presentation is only by way of concession, and a continuance or extension of the concession cannot be demanded of it as a matter of right, at any rate after the expiry of the normal period of limitation within which an appeal can be presented. In the present instance, at the time of the first return, a week was allowed for re-presentation, but the re-presentation was only made after 155 days by which time the limitation period had long expired. On the occasions of the other two returns no time was fixed, but it has to be taken that the representation was to be made within a reasonable time and representations cannot be said to have been made in a reasonable time when they have been made after intervals, respectively of 114 and 386 days. Nor can it be said that the petitioners had no notice that they should not be dilatory. After the first return the case was put on the board on 17th July 1930 and yet the re-presentation was not till 19th December 1930. After the second return the case was put on the board on 6th January 1931 and the re-presentation was not till 30th April 1931; and after the third return it was put on the board on 13th July 1931 and the representation was not till 2nd August 1932.

6. Even now the memorandum of appeal is not complete, and certainly no further time can be given for putting it into proper form. I hold that it is hopelessly out of time and I therefore reject it.


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