Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 273

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Ali Mohammad Magrey, J.
Maqbool Buhroo and Ors. – Appellants
Versus
Ahad Buhroo and Ors. – Respondents
CM No. 1642 of 2021 in CSA No. 08 of 2013
Decided On : 27-09-2021

Advocates:
Advocate Appeared:
For the Appellant :Mr M. A. Qayoom, Advocate with Mr Mian Muzaffar, Advocate.
For the Respondent:Mr G. A. Lone, Advocate.

Point of Law : Once an appeal is duly entertained without the production of a certified copy of the Decree sheet with it and neither the memorandum of appeal was rejected nor returned, as provided under Order XLI Rule 3 of the Code, then, subsequently, the appeal could not be dismissed on the ground that at the time of the presentation of the appeal the same was not accompanied with a certified copy of the Decree.

Headnote:
Code Civil Procedure, 1908 - Section 100 - Order XLII Rule 1 - Appellants seeking permission of Court to place on record copy of Decree along with main Civil 2nd Appeal preferred against Judgment and Decree passed by the Court of learned Principal - - It is further stated in application that as per amended provisions of (CPC), every appeal has to be preferred in form of memorandum signed by appellant or his pleader; is to be presented to Court or such Officer, as it appoints in this behalf; and the memorandum has to be accompanied by a copy of Judgment alone - Whether any Decree sheet has been prepared or not.
Finding of the court : Dispute with regard to above legal position, however, it is obvious that complications in present case have partly arisen as a result of failure of Registry Court to notice defect of Appeal being without certified copy of Decree and to take appropriate action with respect thereto at initial stage before Appeal was placed for admission under Order 41 Rule 1 - Besides, there is no hard and fast rule of general applicability laid down for dealing with appeals defectively filed under Order 41 Rule 1 and appropriate orders are required to be passed having regard to circumstances of each case, but most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at initial stage soon after they are filed and appellant(s) required to remedy defect(s).- Therefore, Court is of considered opinion that objection of Non-Applicants/Respondents with regard to Appeal of Applicants/Appellants being defective, at stage and in view of facts and circumstances already adverted, cannot be sustained - Above background and with a view to do substantial justice between parties, instant application is allowed and certified copy of Decree passed by 1st Appellate Court is taken on record, to be made part of memorandum of appeal -
Result : Appeal disposed of

JUDGMENT :

1. The instant application is filed on behalf of the Applicants/Appellants seeking permission of this Court to place on record the copy of Decree along with the main Civil 2nd Appeal bearing No. 08/2013, preferred against the Judgment and Decree dated 3rd of April, 2013 passed by the Court of learned Principal District Judge, Kulgam. It is stated that the Applicants/Appellants annexed copy of the Judgment and Decree dated 29th of December, 2008 passed by the Court of learned Sub Judge, Kulgam, as also a copy of Judgment dated 3rd of April, 2013 passed by the Court of learned Principal District Judge, Kulgam, along with the Appeal. It is further stated in the application that as per the amended provisions of Order XLII Rule 1 of the Code of Civil Procedure (CPC), every appeal has to be preferred in the form of memorandum signed by the appellant or his pleader; is to be presented to the Court or such Officer, as it appoints in this behalf; and the memorandum has to be accompanied by a copy of Judgment alone. It is averred that under Order XLII Rule 1 of the Code, it is provided that if an appeal is not drawn up in the prescribed manner, it may be rejected or returned to the appellant(s) for purpose of being amended within such time to be fixed by the Court or amended then and there, however, on the presentation of the Appeal by the Applicants/Appellants before the Registry of the Court, no deficiency in the memorandum of Appeal was pointed out and, when the same came up for consideration before the Court, it was neither rejected nor returned to the Applicant/Appellant for amendment within such time to be fixed by the Court. It is pleaded that it was only at the time of hearing of the Appeal on 4th of March, 2021 that the Court noticed that the Applicants/Appellants have not appended copy of the Decree Sheet of the 1st Appellate Court along with the Appeal, whereafter, as stated, the Applicants/Appellants immediately applied for a certified copy of the Decree Sheet on 8th of March, 2021 which was, accordingly, furnished to them on 9th of March, 2021. In this backdrop, the Applicants/Appellants are filing the application in hand for taking on record the certified copy of the Decree sheet of the 1st Appellate Court and making the same a part of the main Appeal.

2. Mr M. A. Qayoom, the learned Counsel for the Applicants/Appellants, submitted that there has been no deliberate or intentional failure on the part of the Applicants/Appellants to annex copy of the Decree sheet of the 1st Appellate Court with the Appeal and that it was only because of the language used in Order XLI Rule 1 of the Code that the Applicants/Appellants, besides annexing copy of the Judgment and Decree of the trial Court, have annexed certified copy of the Judgment of the 1st Appellate Court dated 3rd of April, 2013 along with the Appeal, however, on the noticing of the Court on 4th of March, 2021, the Applicants/Appellants, after obtaining a certified copy of Decree sheet, are filing the same along with the application. It is further submitted that the Applications/Appellants had applied for a certified copy of the Judgment and Decree of the 1st Appellate Court on 3rd of April, 2013, but they were furnished only a certified copy of the Judgment on 8th of April, 2013 because the office had not prepared any Decree sheet in the case as on that date. It is argued that since this Court, in terms of Order dated 18th of April, 2013, already entertained the Appeal and summoned the record of the trial Court as well as the Appellate Court, therefore, the Applicants/Appellants did not go to the Appellate Court thereafter to find out as to whether any Decree sheet has been prepared or not. It is pleaded that the aforesaid deficiency having not been pointed out by the Registry or by the Court or else by the other side till 4th of March, 2021, as such, the Applicants/Appellants did not annex a copy of the Decree sheet with the Appeal, but have, now, on the asking of

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