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SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, K.N. WANCHOO AND K.C. DAS GUPTA, JJ.
Jagat Dhish Bhargava, Appellant
Versus
Jawahar Lal Bhargava and others, Respondents.
Civil Appeal No. 222 of 1960.
5th December, 1960
Advocates appeared
Mr. G. S. Pathak, Senior Advocate, (Mr. B. C. Misra Advocate with him), for Appellant; Mr. Mukat Behari Lal Bhargava, Senior Advocate, (Mr. J. P. Goyal, Advocate, with him), for Respondents Nos. 1 to 7.
-essentially it is the function of the Court and its office and it would be unreasonable to penalise the party for default of the office—Jagat Dhish Bhargwa v. Jawahar Lal Bhargwa, AIR 1961 SC 832 by suggesting that it was necessary that the party should have moved the Court for the drawing up of the decree.
-there may be circumstances where an appeal may be competent even though a copy of the decree may not have been filed e.g. where at the time when the appeal is filed the decree has not been prepared by the Trial Court
-a litigant feeling aggrieved by the decision may apply for the certified copy of the judgment and decree before the decree is drawn up, or he may apply for the said decree after it is drawn up. In the former case, where the litigant, had done all that he could and has made a proper application for obtaining necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for drawing up of the decree itself. In other words, the time taken by the office or the Court in drawing up the decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree, Jagat Dhish v. Jawaharlal, AIR 1961 SC 832. The position would be substantially different if at the time when the appeal is presented before the Appellate Court a decree in fact had not been drawn up by the Trial Court, in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up against which an appeal lies. In the case like the present, if the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. It would be open to the High Court, rather it would be its duty, to direct the subordinate court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate court should return the appeal to the appellant as defective, and when the decree is filed by him, the question of limitation may be examined on the merits. No hard and fast rule of general applicability can be laid down for dealing with the appeals defectively filed under this Rule. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant is required to remedy the defects.
-where the Trial Court has not drawn up the decree and the appeal is admitted under Rule II, without the copy of the decree, and the certified copy of the decree is filed subsequently, it is not necessary that the appeal should go through the formality of the procedure prescribed by this Rule, once again -
-it is not the duty of the party to remind the court of its obligations to draw a decree
Certainly. Based on the provided legal document, here are the key points:
The primary legal issue concerns whether an appeal filed without a certified copy of the decree was competent under the applicable procedural rules (!) (!) .
It is established that the filing of a certified copy of the decree along with the appeal is a mandatory requirement, and failure to do so generally renders the appeal incomplete and potentially incompetent (!) (!) .
However, procedural lapses attributable to the court’s negligence, such as the failure to draw up the decree, can influence the assessment of the appeal’s validity. If the appellant has made a proper application for the decree and the delay is due to court or office negligence, the appeal may still be considered valid, especially if the decree is subsequently filed (!) (!) .
The timing of the appeal’s filing is crucial. When an application for a certified copy of the decree is made before the decree is drawn up, the appeal cannot be considered premature if the decree is obtained later, and the period of limitation should exclude the time taken in obtaining the decree (!) (!) .
The court emphasizes that the default or delay caused by the court or its officers should not penalize the litigant, and procedural irregularities should be rectified in a manner that promotes justice rather than strict penalization (!) (!) .
The court recognizes that in cases where the decree has not been drawn up at the time of appeal, and the appellant has made a bona fide application for it, the appeal should not be dismissed solely on procedural grounds. Instead, the appellate court should allow time for the decree to be obtained and filed (!) (!) .
The overall approach favors flexibility and fairness, particularly where procedural lapses are due to circumstances beyond the litigant’s control, and underscores the importance of scrutinizing appeals carefully at an early stage to allow for necessary remedies (!) (!) .
In the specific case, since the certified copy of the decree was ultimately filed before the appellate court, the appeal was deemed to be filed in time, and the procedural irregularity was rectified, making the appeal competent for hearing on its merits (!) (!) .
The court concludes that the order of the lower court, which allowed the appeal to proceed despite initial procedural defects, was fair and just under the circumstances, and dismisses the appeal accordingly (!) .
Overall, the decision highlights the importance of procedural fairness, the court’s duty to prevent injustice caused by procedural delays or administrative lapses, and the need for a case-by-case approach in procedural irregularities.
Judgment
GAJENDRAGADKAR, J. : The short question of law which arises for decision in the present appeal by special leave is whether the appeal preferred against the appellants and respondents 8 and 9 in the High Court of Punjab by respondents 2 to 7 was competent in law or not. This question arises under somewhat unusual circumstances. It appears that an agreement of sale of one-third of the one-fourth share in the property covered by the document was entered into between Gokal Dhish Bhargava and the appellant, Jagat Dhish Bhargava. Gokal Dhish Bhargava sued the appellant and proforma respondents 8 and 9 for specific performance of the said agreement of sale in the Court of the Senior Civil Judge, New Delhi (Civil Suit No. 684/128 of 1949/50). This suit was dismissed on March 12, 1954. Pending decision in the trial court Gokal Dhish Bhargava died and his son Jawahar Lal Bhargava, respondent 1 and Chunni Lal Bhargava were brought on the record as legal representatives. After the suit was dismissed and before the appeal in question was preferred in the High Court Chunni Lal Bhargava died; thereupon respondents 2 to 7, as his legal representatives, joined respondent 1 in preferring an appeal against the said decree in the High Court of Punjab. The memo of appeal along with the judgment dismissing the suit and the taxed bill of costs endorsed on the back of the last page of the judgment was filed in the High Court on July 29, 1954. It is the competence of this appeal that was questioned before the High Court and is in dispute before us in the present appeal.
2. The record shows that on March 24, 1954, an application was made by respondents 2 to 7 (who will be called the respondents hereafter) for a certified copy of the judgment and decree passed in the said suit for specific performance. A certified copy of the judgment and the bill of costs was supplied to them but the decree had not been drawn up and no copy of the decree was therefore supplied to them. In the result the appeal was filed without the certified copy of the decree and only with the certified copy of the judgment and the bill of costs. On August 2, 1954, the Assistant Registrar of the High Court returned the memo of appeal filed by the respondents to their counsel and pointed out to him that since no copy of the decree had been filed t he presentation of the appeal was defective and the defect needed to be certified. Thereafter on August 16, 1954 the respondent s counsel refiled the appeal with an endorsement that a memo of costs alone had been prepared by the trial court and no decree had been drawn up, and so the appeal should be held to be properly filed. Apparently this explanation was treated as satisfactory by the office of the High Court and the appeal was registered as No. 77-D of 1954.
3. In due course the appeal was placed for preliminary hearing under O. 41, R. 11 of the Code of Civil Procedure before Dulat, J., who admitted it on August 30, 1954. Notice of the appeal was accordingly served on the appellant and the pro forma respondents. Ultimately when the appeal became ready for hearing it was put up on the Board of the Circuit Bench of the High Court to be heard on December 26, 1958. Meanwhile on December 23, 1958, the appellant served a notice on the respondents counsel intimating to him that he proposed to raise a preliminary objection against the competence of the appeal on the ground that the decree under appeal had not been filed as required under O. 41, R. 1, along with the memo of appeal and the certified copy of the judgment. Next day, that is to say, on December 24, 1958, the respondents moved the trial Court for drawing up of the decree, but since the record had in the meantime been sent by the trial Court to the High Court no decree could be drawn up by the trial Court, and so the motion became infructuous. The appeal, however, did not reach hearing on December 26, 1958. On December 29, 1958, the respondents moved the Court that the appeal sh
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