Skip to content


Subodh Kumar Talukdar Vs. Tincowrie Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberF.A.T. No. 203 of 1963
Judge
Reported inAIR1965Cal67,68CWN989
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 1; ;Calcutta High Court (Appellate Side) Rules - Rules 2(18), 3 and 10(2); ;Limitation Act - Section 5
AppellantSubodh Kumar Talukdar
RespondentTincowrie Sen
Advocates:Sudhanshu Kumar Sen and ;Gaganendra Krishna Deb, Advs.
Cases ReferredBabul Tailor v. Sri Chandra Prabhuji Maharaj
Excerpt:
- .....of limitation for the filing of the appeal, which expired on february 7, 1963. on that date, the stamp reporter, inscribed the following note on the memorandum of appeal:'not in form, as it appears that the certified copy of the judgment complained of has not been filed in this case. it transpires that this appeal and its next preceding, one, namely, f. a. t. 202 of 1963 are governed by the same judgment, the relevant certified copy of which has been filed in the later appeal. it is presumed that these two appeals are intended to be heard analogously to this court with one set of judgment for both these appeals. no application for analogous hearing and for dispensing with the certified copy of the judgment if this appeal has, however, been filed. in the circumstances, the present.....
Judgment:

Banerjee, J.

1. Ejectment suits 2044 and 2043 of 1960 were leave analogously by the Judge, IX Bench of the City Civil Court, Calcutta, and were dismissed by one and the same judgment. Against the two decrees made in the, two suits, the appellants, preferred two first Appeals to this Court, or January 18, 1963, being F. A. T. 202 and 203 of 1963. The memorandum of appeal in F. A. T. 202 of 1963 was Wed accompanied by certified copies of both the judgment and the decree, as required under Order XLI, Rule 1 of the Code of Civil Procedure. The memorandum of appeal in F. A. T. 203 of 1963, however, was filed accompained by the certified copy of the decree only.

2. The appellants should have applied for an order dispensing with the filing of the certified copy of the judgment in F. A. T. 203, because their intention was to have F. A. T. 202 and F. A. T. 203 of 1963 heard together in this Court and, in that event the filing of a second certified copy of the judgment was wholly unnecessary. They did not, however, do so, at the time they filed, the appeals.

3. Now, under Order XL1 Rule 1 of the Code of Civil Procedure-

'the memorandum of appeal 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'.

The consequence of filing a memorandum of Fiist Appeal, without a certified copy of the judgment and without obtaining an order from the Appellate Court dispensing with the filing thereof, is to be found in Chapter V Rule 10(2) of the Appellate Side Rules, which reads as follows:

'if a memorandum of appeal is presented for admission without copies of the judgment and decree or order appealed from, it shall forthwith be returned to the Advocate or party presenting it. If such copies are tiled after the period of limitation has expired the memorandum shall be presented direct to the Division Bench.'

4. In the instant case, although the memorandum was presented on January 18, 1963, the same was not taken up for examination until July 27, 1963, long after the period of limitation for the filing of the appeal, which expired on February 7, 1963. On that date, the Stamp Reporter, inscribed the following note on the memorandum of appeal:

'Not in form, as it appears that the certified copy of the judgment complained of has not been filed in this case. It transpires that this appeal and its next preceding, one, namely, F. A. T. 202 of 1963 are governed by the same judgment, the relevant certified copy of which has been filed in the later appeal. It is presumed that these two appeals are intended to be heard analogously to this Court with one set of judgment for both these appeals. No application for analogous hearing and for dispensing with the certified copy of the judgment if this appeal has, however, been filed. In the circumstances, the present appeal seems to be irregular and is liable to be returned to the learned Advocate. This defect may be cured by filing an application to the above effect and on the same application being allowed by the Registrar or by the Court, according as it is found to be in time or barred by time.'

Thereafter, the Stamp Reporter recorded the following report on the Order Book, on July 31, 1963, and put up the same before the Registrar, Appellate Side: 'Please see Stamp Reporter's report dated 25th July, 1963 on the back of the memo. Order is solicited on the above report.'

5. On the report as made to him, the Registrar passed the following order, on August 1, 1963: 'Let necessary application be filed within two weeks'.

6. Pursuant to the, order, the appellants filed an application, on August 7, 1963, for analogous hearing of F. A. T. 202 and 203 of 1963 and for dispensing with the certified copy of the judgment in F. A, T. 203 of 1963. How that application, Instead of being placed before the Registrar, under Chapter II Rule 2(18) of the Appellate Side Rules, came to be annotated by the Stamp Reporter does not appear. Nevertheless, the Stamp Reporter inscribed the following note on the Order Book of F. A. T. 203 of 1963, on September 6, 1963:

'An application for analogous hearing of this appeal viz. F. A. T. 202/63 with F. A. T. 203/63 (put up below) and for acceptance of one set of certified copy of judgment as filed in the latter case for both these appeals has been fifed on 7-8-63. It appears that the present appeal was filed on 18-1-63 without the copy of the judgment complained of and without any application for dispensing with the said copy and as such, the filing of this appeal was not valid on the date of its presentation. Now that necessary application has been filed, this defect is cured but 6 months beyond time, the prescribed period of limitation for this appeal having expired on 7-2-63.

In the above circumstances, an application for condonation of delay under Section 5 of the Limitation Act may be filed by the L/Advocate in the 1st instance and the matter placed before the Bench thereafter along with that application for necessary orders or the memo of this appeal along with all other papers may be taken back by the L/Advocate for presentation to court direct with an application under Section 5 of the. Limitation Act.

Lay before the Registrar for orders.'

7. Thereafter, on September 13, 1963, the Registrar made an order, calling for a further report from the Stamp Reporter in that following language: 'The learned Advocate will call on Stamp Reporter by Wednesday next, who will thereafter make a report.'

8. What was the occasion for relegating the matter to the Stamp Reporter does not appear. Be that as it may, on November 19, 1963, the Stamp Reporter put up the following further note :

'Discussed the matter with the learned Advocate who had duly called at my place. I could not, however, concur with his views. In my opinion, the whole appeal becomes time-barred if the certified copy of the Judgment complained of or the application for dispensing with the said copy is filed at a late stage) i.e. beyond the prescribed period of limitation. In such a case, therefore an application under Section 5 of the Indian Limitation Act need be moved before the Bench by the learned Advocate after taking return of the memorandum of appeal as provided in Rule 10(2), Part II, Chap. V, A. S. Rules.

The present one is a case of this type. The appeal was filed on 18-1-63 without the copy of judgment under appeal. An application for analogous hearing with a further prayer for dispensing with the copy of the said judgment was, however, filed on 7-8-63. The period of limitation expired on 7-2-63, Thus the presentation of the memo was made regular on 7-8-63 with the filing of the application for dispensing with the copy of judgment but a little more than 6 months beyond time. Hence, in my view, an application under Section 5 of the Limitation Act appears to be necessary.

As the matter is one involving the question of limitation and also as my view is contested by the learned Advocate, this may be placed before the Bench for orders.

Lay before Registrar for orders.'

9. The Registrar was inspired by the note and mad? the following order, on November 26, 1963 : 'In view of the report of the Stamp Reporter, the matter may be placed before the appropriate Bench for orders.'

10. When, this matter was placed before us, on December 16, 1963, we could not make out why the office took about 6 months to find out that the memorandum of appeal was not in form and also why the memorandum was not forthwith returned to the filing Advocate, under Rule 10(2) Chapter V of the Appellate Side Rules. We, therefore, called for a report from the, Stamp Reporter. The Stamp Reporter, thereupon, prepared the following report.

'In pursuance of court's order dated 16-12-G3 at pp. 4-6 of the O. B., it is respectfully submitted as follows ;-

The present memorandum of appeal was filed in the office on 18-1-63. But due to huge accumulation of cases In my hand at the time, it could not be- reported on by me earlier than on 25-7-63. It will appear from my report dated 25-7-63 recorded on the back of the memo, that the present appeal was found to be irregular and for that matter, liable to be returned to the learned Advocate, It was, however, stated by me further in the same report that the defect might be cured by filing an application for analogous hearing of this appeal with F. A. T. No, 202/63 (wherein the certified copy of the judgment has been filed, both the appeals being governed by the same judgment) and for dispensing with a copy of the judgment in this case and on the same application being allowed by the Registrar or the Bench according as it was in time or out of time.The above report dated 25-7-63 was then placed before the Registrar in Lawazima for an appropriate order. It will appear that the Registrar was pleased to pass an order for filing of the necessary application within two weeks (vide Registrar's order dated 1-8-63 on top of p. 2 of the O. B.)

In compliance with the aforesaid order of the Registrar, the learned Advocate filed on 7-8-63 an application for analogous hearing and for acceptance of one set of judgment for these two appeals. As the said application was filed beyond the period of limitation, 1 made another report on 6-9-63 (vide p. 2 of the O. B.) suggesting that an application for condonation of delay under Section 5 of the Limitation Act may be filed by the learned Advocate in the first instance and the matter may then go to the Bench for orders or in the alternative, the memo of appeal along with all other connected papers may he taken back by the learned Advocate for presentation to Court with an application under Section 5 of the Limitation Act.

The foregoing report dated 6-9-63 was subsequently placed before the Registrar for an order. It will appear from P. 3 of the O. B. that the Registrar was pleased to pass an order on 13-9-63 directing the learned Advocate to see the Stamp Reporter and asking the latter to make a report thereafter. Accordingly, I made my third report on 19-11-63 after the learned Advocate had seen me for a discussion in the matter. The learned Advocate did not agree with me) in that an application under Section 5 of the Limitation Act will be necessary in this case. Hence, I suggested that the matter may perhaps be placed before the Bench for orders. The Registrar was pleased to accept my suggestion and laid the matter before the Bench for orders.

In the circumstances of the present case as outlined above, I had no opportunity to return the memo so far, Lay before their Lordships through the Registrar for favour of kind perusal and orders'.

11. On the aforesaid report, the Registrar added the following note of his own and laid the matter before us:

'The report of the Stamp Reporter above may kindly be seen in connection with the! Court's order dated the 16th December, 1963, asking for an office report as to why the Memo, of Appeal was not forthwith returned to the learned Advocate in compliance with Rule 10 (2) of Chapter V of the Appellate Side Rules.

The Memo. of Appeal having been, presented without the copy of the judgment of the Trial Court, it was liable to be returned forthwith to the learned Advocate.

The matter was taken up by the office on July 25, 1963, although the Memo. of Appeal was presented on January 18, 1963. It is pointed out by the Stamp Reporter that the matter could not be taken, up earlier as there was a huge accumulation of cases in his hand at the time. It is correct that the Stamp Reporter had a large accumulation of cases in his hands. I understand that although under Rules, the Memo. of Appeal with similar defect is liable to be returned forthwith, but to avoid duplication, of work by the learned Advocates, attempt is made by office to regularise the presentation of the appeal by obtaining the requisite application. In this particular case, the omission as regards the filing of the copy of the judgment being considered to be a defect of a formal and accidental nature and the defect being of a nature which could be regularised by an 'application, the Stamp Reporter suggested in his report dated 25-7-63 that the defect might be cured by filing an application. In view of that report, I directed on 1-8-63 that necessary application be filed within, two weeks. The application was filed within the period but by that time the appeal was beyond time with the result that eventually I laid the matter before the Bench for orders as the question of limitation was involved.'

12. We have in extenso set out certain office reports and orders, because they require some criticism. Accumulation of work in the hands of the Stamp Reporter, Which caused inordinate delay in finding out defects in memoranda of appeal, should not operate to the prejudice of appellants, if Rule 10(2) of Chapter V of the Appellate Side Rules had been followed, in the instant case, and the memorandum of appeal been forthwith returned, the appellants might have made the requisite application, under Rule 2(18) of Chapter II read with item 19 of the schedule in Chapter IV and Rule 3 of Chapter V of the Appellate Side Rules, within the period of limitation and might have avoided the difficulties, which confront them today. The memorandum was not only not returned to the learned Advocate for the appellants but he was misguided by a gratuitous advice given by the Stamp Reporter, in his note dated July 25, 1963, to the effect that an application for analogous hearing of the appeal and for dispensing with the filing of another certified copy of the judgment would cure the defect, if the appeal was not time barred. That the appeal stood barred by time on July25, 1963, the Stamp Reporter knew and the note thus contained not only gratuitous advice but was misguiding in addition. She Registrar also did not go deeper into the matter but allowed two weeks time to the appellant on August 1, 1963, to file the necessary application. When the Appellant filed that application, the Stamp Reporter tried to cut it fine and raised an objection to the effect that the appeal having become time barred the application would not cure the defect, unless an application under Section 5 of the limitation Act was also filed and an order condoning the delay obtained. Whether the Stamp Reporter was fight in this objection the Registrar did not himself decide. He appears to have asked the learned Advocate for the appellant to convince the Stamp Reporter shout the invalidity of his objection. It appears from the Stamp Reporter's report, dated November 19, 1963, (herein before quoted) that he remained unconvinced and thereupon the Registrar, without more, placed the matter before us for orders.

13. In our opinion, the Stamp Reporter's objection on the point of limitation was misconceived. The memorandum of appeal was filed in this case, within the period of limitation, although the memorandum was not in form, not being accompanied by the certified copy of the judgment. Because of that irregularity, it was liable to be returned but it could not be condemned as a time barred appeal. The jurisdiction of an appellate court to dispense with certified copy of the judgment of the trial court is not limited by any provision of the Limitation Act. So also the power of the Registrar, under Rule 2 (18) of Chapter II and Rule 3 of Chapter V Appellate Side Rules, to dispense with the filing of more than one copy of the judgment in more than one appeal preferred from a judgment governing more than one case is not circumscribed by any law of limitation. Such an order may be passed on an unsworn application bearing a court-fee stamp of Rs. 2/-, at any time prior to the return of the memorandum of appeal. If, however, the memorandum is once returned, under Rule 10(2) Chapter V of the Appellate Side Rules, then it may be retried with the necessary certified copy, in the ordinary manner, if only re-filed within the period of limitation. If between the date of return of the memorandum and the date of re-filing the period of limitation has expired, Rule 10(2) of Chapter V of the Appellate Side Rules further provides:

'If such copies are filed after the period of limitation has expired the memorandum shall be presented direct to the Division Bench.'

14. In such a case, the provisions for condoning the delay shall have to accompany the memorandum of appeal. Both the Stamp Reporter and the Registrar were in error in importing considerations of the Limitation Act, in the instant case, where the memorandum of appeal remained filed in the appropriate department and was not returned under Rule 10(2) to the learned Advocate, who had filed the appeal. It is an elementary principle of law, that a party to a litigation should not suffer because of an error committed by the Court or its office. By not returning thememorandum in time, the office of this Court did not act according to the Rules and in that it was wrong. This must not react upon the appellant prejudicially. The Registrar says, in his report dated January 2, 1964, that 'to avoid duplication of work by learned Advocates, attempt is madeby office to regularise the presentation of appeal by obtaining the requisite application.'

15. In our opinion, this is not a correct attitude to take. Rules are meant to be followed. Attempt to sidetrack the beaten path of the Rules may land one in wilderness, such as has happened in the instant case.

16. We, therefore, allow the application, direct that F. A. T. 202 and 203 of 1963 be heard analogously and that the filing of the certified copy of the judgment in F. A. T, 203 of 1963 be dispensed with.

17. Before we part with this order, we desire to add something more, in criticism of administration of work by the office. Accumulation of work, in recent times, is being held out as an excuse for all sorts of official incompetence. We have noticed this heretobefore, while taking up Lawazimah matters placed before the Division Bench. There is little doubt that works are in arrears and need require an administrative shake up to clear up the arrears of work. The Registrar, Appellate Side, is also often accused of blindly endorsing excuses made by the office. In another context, a Division Bench of this Court characterised this attitude of the Registrar as 'anything but careful and responsible' (Vide F. A. T. No. 3403 of 1962, Babul Tailor v. Sri Chandra Prabhuji Maharaj, order dated January 17, 1964 Cal). We do not, however express any general condemnation of the conduct of the Registrar. We have no reason to think that he is not really a conscientious end hard-working officer, who has to work under great administrative, difficulties.

18. In the instant case, however, by agreeing with the view of the; Stamp Reporter, gratuitously expressed, he erred. Now that we have explained the law on the point, we believe such errors will not be repeated.

19. Let the attention of both the Registrar and the Stamp Reporter be drawn to this order, so that they may take notice of the same.

D. Basu, J.

20. I agree.


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