Procedural defects in filing appeals should not prevent justice if rectified timely; the High Court's interference under Article 227 is limited to gross failures of justice.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This application under Article 227 of the Constitution of India has been preferred against the impugned order no. 9 dated September 30, 2023 passed by the learned District Judge, Jalpaiguri in Misc. Appeal No. 58 2023 in connection with Title Suit No.428 of 2023. By the impugned order learned Court admitted the aforesaid Misc. Appeal for hearing, inspite of objection raised by the petitioner against admission.

2. Petitioners’ case in brief is that opposite party herein has instituted aforesaid Title suit being no. 428 of 2023, along with temporary injunction application before the Trial court. Said application for temporary injunction was moved by the plaintiff/opposite party herein and upon hearing the said application, learned judge by an order dated 25th July, 2023 was pleased to reject the prayer for injunction.

3. It is alleged that the opposite party herein being aggrieved by the said order preferred aforesaid Misc. Appeal which was not accompanied by a copy of judgment in violation of order XLI, Rule 1 of Code of Civil Procedure (hereinafter called as code) on 1st before learned District Judge, Jalpaiguri August, 2023. It is further alleged by the petitioner herein that the opposite party had inserted the certified copy of the impugned order dated 25th July, 2023 directly into the records of aforesaid Misc. Appeal without any order granting leave by the learned appellate court.

4. Thereafter the petitioner made an application on 15th September 2023 objecting that the certified copy of the impugned order has not been filed along with the Appeal before the learned district judge, and hence the appeal should not be admitted. Learned court below had taken up said objection raised by the petitioner herein but Learned Appellate court was pleased to admit the said Misc. Appeal being no. 58 of 2023 observing that the said Appeal has been filed as per statutory mandate laid down under order XLI rule 1 of the code.

5. Mr. Pranit Bag learned counsel appearing on behalf of petitioner strenuously argued that the Court below failed to appreciate that the provisions laid under order XLI Rule 1 of the Code is not directory but mandatory. He failed to consider that the Appeal could not have been admitted in the Register of Appeal which was filed without certified copy of the order, and ignoring such mandatory provision, the court proceeded mechanically to pass the order impugned, admitting the instant appeal. He argued that the court below admitted the instant appeal beyond the period of limitation without considering the fact that the certified copy as provided by the opposite party on August, 2, 2023, could not have been accepted after the expiry of the limitation period of 30 days.

6. He further argued, since the instant Appeal was filed on August, 1, 2023 and the certified copy was filed after such date i.e. on August, 2, 2023, it could not have been suo moto accepted by the Registrar of Appeals without leave granted by the court concerned and as such the appeal is not only defective but also barred by limitation. It is further alleged by the petitioner that in fact the certified copy was accepted by the Court below on September, 30, 2023 and such acceptance was made beyond the period of limitation. The court below has no power to accept the appeal beyond the period of 30 days without an application under section 5 of the Limitation Act. Hence the petitioner contended that the very registration of the appeal is invalid, in view of statutory mandate as per order XLI rule 1 of the Code. Accordingly Mr. Bag submits that learned Appellate court has fixed the instant matter for hearing and if the instant appeal is allowed to proceed, further injustice would be caused and as such the petitioner has prayed for setting aside the order impugned. In this context petitioner had relied upon Rule 256 of the Civil Rules and Order of Calcutta High court along with order XLI rule 1 read order XLIII rule 1 and also ju