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Lohku and anr. Vs. Bhola Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 59 of 1950
Judge
Reported inAIR1952HP62
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 41, Rules 1 and 3
AppellantLohku and anr.
RespondentBhola Ram
Appellant Advocate Hari Ram, Adv.
Respondent Advocate Ishwar Das, Adv.
DispositionRevision allowed
Excerpt:
- .....the senior subordinate judge therefore passed an order on 28-6-1950 rejecting the appeal. the present revision has been filed against that order of rejection of appeal.3. there is no doubt that the signing of the memorandum of appeal by the appellant or his pleader is mandatory under order 41, rule 1, c. p. code; but the rejection of a memorandum of appeal not so drawn up under rule 3 of the said order is only discretionary. the latter rule provides that where the memorandum of appeal is not drawn up in the manner prescribed before, 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. the word used is 'may' and not 'shall', and rejection of the memorandum of appeal is only one of.....
Judgment:

Chowdhry, J.C.

1. This is an application in revision by Lohku defendant for self and as guardian-adlitem of Roshan, defendant. There was a third defendant, Sundar, who is not a party to this revision.

2. Bhola Ram respondent obtained a decree for possession of some land on 15-5-1950 against the aforesaid three defendants from the Court of the Subordinate Judge of Sarkaghat. An appeal, purporting to be on behalf of all the three defendants, was filed in the Court of the Senior Subordinate Judge of Mandi on 24-6-1950. There was a vakalatnama in favour of a counsel signed by Lohku defendant only, but the memorandum of appeal was signed neither by any of the appellants nor by the counsel. The Senior Subordinate Judge therefore passed an order on 28-6-1950 rejecting the appeal. The present revision has been filed against that order of rejection of appeal.

3. There is no doubt that the signing of the memorandum of appeal by the appellant or his pleader is mandatory under Order 41, Rule 1, C. P. Code; but the rejection of a memorandum of appeal not so drawn up under Rule 3 of the said Order is only discretionary. The latter rule provides that where the memorandum of appeal is not drawn up in the manner prescribed before, 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. The word used is 'may' and not 'shall', and rejection of the memorandum of appeal is only one of the orders that may be passed by the Court. The other alternative orders provided are returning of the memorandum to the appellant for the purpose of being amended, and the amendment of the memorandum then and there. Where therefore there is nothing to show, as it is not in the present case, that the defect in the drawing up of the memorandum of appeal was deliberate, the proper order to pass under rule 3 is not its rejection but, if possible, its amendment then and there, or its return to the appellant for that purpose. If, inspite of the attention of the appellant having been drawn to the defect he fails to rectify it by amendment within the time fixed by the Court, an order rejecting the memorandum of appeal would be justified.

4. In the present case, the appeal was filed on 24-6-1950, and it was ordered that it be put up after scrutiny on 28-6-1950. No scrutiny, however, seems to have been made since, except in the order of the Senior Subordinate Judge itself, there is no office-note with regard to the aforesaid defect. It does not even appear that, before the aforesaid order dated 28-6-1950 rejecting the appeal was passed, the attention of the appellants or of Lohku appellant's counsel was drawn to the defect. That being so, the order in question, was no doubt wholly arbitrary and unsustainable, and the Judge would be deemed to have acted with material irregularity in passing it.

5. The learned counsel for the petitioners cited before me the ruling reported as 'RAMDHARI v. KHEDU', AIR 1938 Pat 461, in support of the proposition that the present revision is maintainable because the order in question rejecting the memorandum of appeal had not finally disposed of the disputes between the parties and was therefore not appealable. There is no doubt with regard to the correctness of that proposition, but no such objection was raised by the learned counsel for the plaintiff-respondent. The objections raised by him were two-fold. The first objection was that the memorandum of appeal being defective as aforesaid was rightly rejected. I have already disposed of this point. The other objection raised by him was that this revision should be thrown out because the petitioners had other remedy open to them. The other remedy pointed out by the learned counsel for the plaintiff-respondent was the filing of a second memorandum of appeal duly signed by the appellants or their counsel. He cited the ruling reported as 'JNANADASUNDARI v. MADHABCHANDRA', AIR 1932 Cal 482, in support of the argument that rejection of memorandum of appeal does not preclude the appellant from presenting a fresh one. The same ruling however makes it clear that the second memorandum will not be exempt from a consideration of the question whether it was filed within limitation. In the present case, the period of limitation for filing a second memorandum of appeal after its rejection on 28-6-1950 had expired. That being so, the argument that the petitioners had other remedy open to them falls to the ground.

6. It has to be noted in passing that Lohku purports to have filed the present revision both for self and as guardian-ad-litem of Roshan defendant, described as a minor, but that in the plaint Roshan was not so described and no steps appear to have been taken in the trial Court for appointment of any guardian ad litem. That is, however, a point to which the lower appellate Court will direct its attention and pass suitable order. Another point that struck me was that this revision had not been filed by all the defendants: It was not filed in any case by Sundar, and also not by Roshan, if the latter be not a minor. But, as I am of the opinion that this revision should be allowed and the appeal should go back to the lower appellate Court for hearing, the proper and, just order to pass seems to be to enable the appeal to be heard on behalf of all the three defendants.

7. The revision is allowed, the judgmentand order of the Senior Subordinate Judgedated 28-6-1950 rejecting the appeal is setaside, and the case is remanded to the properCourt, which is now the Court of the DistrictJudge of Mandi, for disposal of the appeal according to the law after giving appellants anopportunity to remove any defects there maybe in the memorandum of appeal within a timeto be fixed by that Court. The parties willbear their own costs of this revision. The court-fee levied on the memorandum of revision inthis Court shall be refunded.


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