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1976 Supreme(Goa) 16
Goa High Court
TITO MENEZES, J.C.
Shambhu Surya Naik - Appellant
Versus
Joaquim Santana Noronha - Respondents
Civil Revn. Appln. No. 24 of 1976
Decided On : 12 April 1976
U. Kolwalkar, for Petitioner; F. DMello, for Respondent.
The period of limitation for a Civil Revision Application should be counted from the date of filing the initial proceeding, and not from the date of its conversion into a different type of proceeding, unless there is a substantial conversion of substance.
Headnote:
CIVIL REVISION APPLICATION - Maintainability - Certified copy of judgement and order - Rule 15 of the Goa, Daman and Diu Judicial Commissioners Court (Presentation of Appeals and Applications) Rules, 1969 - Substantial compliance - Limitation - Conversion of Special Civil Application into Civil Revision Application - Date of filing - Anandrao Baliram v. Parvatibai, AIR 1941 Nag 308 - Ratio decidendi - Treatment of Appeal as Revision Application - Period of limitation - Conversion of one proceeding into another - Substance and form - Jurisdiction - Mamlatdar's order directing petitioner to reconstruct ridge of water canal - No notice to petitioner - No hearing or adjudication - Order set aside.
Fact of the Case:
The petitioner, a tenant of a paddy field, filed a Civil Revision Application challenging the orders of the Mamlatdar and the Collector, which dismissed his application to order the respondent to build and maintain the eastern ridge of a water canal between their fields. The respondent objected to the maintainability of the Revision Application on various grounds, including the absence of a certified copy of the impugned judgement and order as required by Rule 15 of the Goa, Daman and Diu Judicial Commissioners Court (Presentation of Appeals and Applications) Rules, 1969, and the bar of limitation.
Finding of the Court:
The court held that the requirement of a certified copy of the judgement and order is mandatory, but in the circumstances of the case, substantial compliance was sufficient, as the originals of the orders were before the court in the records and proceedings of the lower courts. The court also held that the period of limitation should be counted from the date on which the Special Civil Application was filed, and not from the date on which it was treated as a Revision Application, as the conversion of the proceeding was a mere treatment of form and not a conversion of substance.
Issues: 1. Whether the Civil Revision Application was maintainable in the absence of a certified copy of the impugned judgement and order? 2. Whether the period of limitation should be counted from the date of filing the Special Civil Application or from the date of its conversion into a Civil Revision Application?
Ratio Decidendi: 1. The requirement of a certified copy of the judgement and order is mandatory, but substantial compliance may be sufficient in certain circumstances. 2. The period of limitation should be counted from the date of filing the initial proceeding, and not from the date of its conversion into a different type of proceeding, unless there is a substantial conversion of substance.
Final Decision: The court allowed the Civil Revision Application, set aside the impugned order of the Mamlatdar, and remanded the case for disposal according to law, considering the respondent's application on merits.
ORDER :- This application was initially filed as a Special Civil Application. The respondent raised an objection to its maintainability on the ground that all remedies have not been exhausted. He states that a Revision Application lies against the orders which were sought to be quashed in the Writ Petition and that therefore the petition should not be entertained. He also contends that other remedies were available to the petitioner which the petitioner had not tried to exhaust. To obviate the objections raised by the respondent to the Writ Petition, the petitioner prayed that the Special Civil Application be converted into a Civil Revision Application. The respondent then reserved his right to challenge the maintainability of the Civil Revision Application and to raise various preliminary objections on it. Accordingly, the Special Civil Application was converted into a Civil Revision Application subject to the various objections that might be raised against him by the respondent. Among the objections raised by Shri DMello, learned advocate for the respondent, the first one is that a Civil Revision Application must, as required by Rule 15 of the Goa, Daman and Diu Judicial Commissioners Court (Presentation of Appeals and Applications) Rules, 1969, be accompanied by a certified copy of the judgement and order complained of. It is pointed out by Shri DMello, learned advocate for the respondent that the Revision Petitioner had complied with the provisions of Rule 15 of the said Rules. I entirely agree with him. The rule is mandatory and a certified copy of the judgement and order had to be placed on record.
2. It is contended by Shri Kolwalkar, learned advocate for the petitioner that the file of the lower Court is already before me and that therefore, there would be substantial compliance with Rule 15, or at any rate there would be no prejudice caused to anyone. Shri Kolwalkar argues that in the circumstances of this case, the application should not be dismissed on account of a minor technicality. I accept the argument of Shri Kolwalkar. There is on record a copy of the judgement and order of the Collector as well as a copy of the judgement and order of the Mamlatdar, both of which have been challenged for want of jurisdiction. The originals of these two orders are also before me in the records and proceedings of these two Courts which were called by this Court. The requirement that a certified copy of the judgement and order is to accompany the Revision Application is made by a rule of this Court and not by an Act. Rules are made to help the Courts to come to a correct finding. They should not be allowed to hamper dispensation of justice. In the circumstances of this particular case, I cannot allow the strict compliance of Rule 15 to prevent me from giving redress to the wrong done to the petitioner.
3. The next preliminary objection is that on the day on which the Special Civil Application was converted into a Revision Application, the filing of the Revision Application would not be possible because it would be barred by the statute of limitation, more than 90 days having passed over the passing of the order which is impugned by the Revision Application. According to Shri DMello this proceeding is deemed to have been filed on the day on which it was treated as an appeal over three months after the passing of the order which is impugned in this Civil Revision Application. In Anandrao Baliram v. Parvatibai, AIR 1941 Nag 308 the proceeding was originally filed as an appeal. It was within time as an Appeal. Grille, J. decided that the matter should be dealt with as a Revision and it appears that accordingly the proceeding was treated as a Revision Application. It also appears from the decision that an objection was raised, like the one raised in the present case on the ground that the Revision Application was barred by limitation. The report of the judgement of the Nagpur High Court in Anandrao Balirams case delivered by V
