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Commissioner of Income-tax and ors. Vs. Santosh Debi Chamaria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 132 of 1970
Judge
Reported inAIR1974Cal295
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 1
AppellantCommissioner of Income-tax and ors.
RespondentSantosh Debi Chamaria
Appellant AdvocateBalai Kr. Pal, Adv.
Respondent AdvocateR.N. Bajoria, Adv.
DispositionAppeal dismissed
Cases Referred(Ramgopal Lachminarain v. Bansidhar Ghanshvamdas
Excerpt:
- .....the applicants shall cause the order passed on 22nd may, 1970 to be drawn up and included in the paper book to be filed and (3) the applicants shall cause a list of dates relevant to the question of limitation to be prepared and shall include the same in the paper book. an interim order was also obtained on 22nd may, 1970.2. then, on the 11th june, 1970 the court of appeal made an order for continuation of the interim order passed on 22nd may, 1970 subject to modifications and the filing of the paper book within one month from the said date. it was also ordered that in the paper book the appellant shall include all papers used in the trial court. it is possible that the appellant obtained further extensions of time to file the paper book, which was, in fact, filed on the 16th.....
Judgment:

Sankar Prasad Mitra, C.J.

1. In this appeal the appellant has not complied with the undertakings given to this Court at the time of obtaining leave to file the Memorandum of Appeal. The order appealed against was passed by Mr. Justice T. K. Basu on the 13th March, 1970. An application was made for a certified copy of the order of Mr. Justice T. K. Basu on the 16th March, 1970. The Memorandum of appeal was filed on 22nd May, 1970 without the certified copy of the order but on three undertakings, viz. (1) the applicants shall file the certified copy of the order within the period of limitation, (2) the applicants shall cause the order passed on 22nd May, 1970 to be drawn up and included in the paper book to be filed and (3) the applicants shall cause a list of dates relevant to the question of limitation to be prepared and shall include the same in the paper book. An interim order was also obtained on 22nd May, 1970.

2. Then, on the 11th June, 1970 the Court of Appeal made an order for continuation of the interim order passed on 22nd May, 1970 subject to modifications and the filing of the paper book within one month from the said date. It was also ordered that in the paper book the appellant shall include all papers used in the trial Court. It is possible that the appellant obtained further extensions of time to file the paper book, which was, in fact, filed on the 16th September, 1970. The respondent does not contend before us that the paper book was not filed within time. But this paper book suffers from fatal infirmities. In the paper book the certified copy of the order appealed against, the order dated 22nd May, 1970 permitting the filing of the Memorandum of Appeal without the certified copy and the list of dates were not included. It is further alleged that all the papers that were used in the trial Court have not been included in the paper book. But we do not propose for the purpose of disposing of this matter to go into this allegation.

3. The position, therefore, is that the appellant has failed to carry out the orders of this Court for inclusion in the paper book the certified copy of the order appealed against, the order of the 22nd May, 1970 and also the list of dates. The paper book cannot, in the circumstances, be accepted by this Court and there is no competent appeal before this Court.

4. Our attention is being drawn to the relevant minutes of the Division Bench consisting of Mr. Justice B. C. Mitra and Mr. Justice Janah on the 25th May, 1973. It appears that on this day leave was obtained to file supplementary paper book printed or cyclo-styled by the following Wednesday i.e. 30th May, 1973. The minutes show that this order was obtained with the consent of the respondent. The respondent's Solicitor states before us that he did not give this consent and submits that this disputed questionmay be tried on evidence. It is, however, unnecessary for us to go into this matter also because assuming that an order was obtained with consent for filing of a supplementary paper book on the 25th May, 1973no supplementary paper book was filed onor before the 30th May, 1973.

5. In the circumstances aforesaid, following the judgment of the Division Benchof this Court in Appeal No. 36 of 1959, (Ramgopal Lachminarain v. Bansidhar Ghanshvamdas), we dismiss this appeal with costs.

Sabyasachi Mukharji, J.

6. I agree.


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