Abdul Majid vs Ch. Jagat Ram and Co.

K.K. Gupta, J.—Respondent herein filed a suit against the petitioner for rendition of accounts claiming that it (respondent-firm) had taken on

lease forest compartment Nos. 111 and 114 Delari range Rajouri division in the year 1974 and engaged petitioner as a subcontractor to carry the

timber to road side under an agreement which an amount of Rs. 26063.48 p. was paid in cash as advance but the petitioner did not perform his

part of the contract. Said suit remained pending in the Court of learned Sub-Judge, Jammu who on 28-7-1986 passed a preliminary decree after

framing the points to be determined by a commissioner and accordingly appointed Shri Kamini Vaid advocate as Commissioner. The

Commissioner submitted his report on 14-8-1987 in which he had found an amount of Rs. 25,213.83p. payable by the respondent herein to the

petitioner herein and further that the petitioner had received Rupees 26069.48 P. as advance from the respondent and ultimately found only Rs.

150.11P required to be paid by the petitioner to the respondent herein. Commissioner's report was challenged by the petitioner herein and the

learned Sub-Judge after considering all circumstances passed final order granting no decree in favour of either of the parties. Petitioner herein

aggrieved of that order preferred appeal before learned 1st Additional District Judge Jammu who on January 6, 1992 dismissed the same. Not

satisfied with both the above said judgments and decrees petitioner had filed civil second appeal on March 9. 1992. At the time of filing of appeal

the petitioner failed to piece on record copies of judgment and decree sheet of the trial Court and as such he has filed this application for

condoning delay in filing copies of judgments and decree sheets of the Court below. This application has been resisted by the respondent.

I have heard the learned counsel for the parties. In this application seeking condoning delay in filing copies of the judgments of preliminary and

final decrees the petitioner has alleged that said copies had been secured but could not be produced as the same had got misplaced and mixed up

with criminal case titled Sarishta Devi v. Kuldeep Singh and others lying with the advocate, which on search were traced out on 16-4-1992, It has

further been stated in the application that for the unintentional mistake of the counsel party should not be denied hearing in the case.

Rule l of Order 41, C.P.C. reads as under:--

(1) Every appeal shall be preferred in the form of a memo signed by the appellant or his pleader and presented to the Court or to such officer as it

appoints in this behalf. The memo shall be accompanied by a copy of a decree appealed from and (unless the appellate Court dispenses therewith)

of the judgment on which it is founded.

(2) The memo shall set-forth, concisely and under distinct heads, the grounds of objections to the decree appealed from without any argument or

narrative and such ground shall be numbered consecutively.

A plain reading of this rule shows that the memo of appeal is required to be accompanied by a copy of decree appealed from. Admittedly the

petitioner had not filed either copy of judgment or decree sheet. Mr. Kotwal learned counsel appearing for the petitioner has argued that the matter

came to his notice when appeal was listed for admission and, according to him, the mistake has crept because the copies had been mixed with

some other case. His plea in this regard is that because of mistake of the counsel party should not be allowed to suffer. He has referred to

Kandaswami Mudaliar and Others Vs. P. Arunachala Chetti and Others, to substantiate his argument. The first case pertains to a mistake of the

counsel of the party in calculating time for filing appeal, which was allowed to be condoned, and second case refers to delay due to counsel's

forgetful ness to file appeal due to exceptional circumstances, which delay was also condoned. Same is not the position in the present case. Here

the counsel is taking a different plea regarding mixing of copies of the judgments and decree sheets with another case. Mr. Kotwal has further

argued that delay in filing copies of the judgments and decree-sheets is also required to be condoned as it would cause injustice by denying the

relief to the petitioner-appellant. According to him in such similar circumstances delay, was condoned in cases, Shakuntala Devi Jain Vs. Kuntal

Kumari and Others, and Phoolchand and Another Vs. Gopal Lal, . I think the principle laid down in above said both the cases by the apex Court

is not applicable in the present case. In the former case their Lordships have dealt with a matter in regard to whether determination of any question

within Section 47. C.P.C. is a decree and in such a case delay in filing appeal was condoned and in the latter case appeal filed without copy of

decree sheet was held competent as no formal decree had been framed by the Court below.

As pointed out above under Order 41, Rule 1, C.P.C. appeal is to be accompanied by a copy of decree sheet and judgment against which

appeal is preferred. It appears from the said rule that Court has power to dispense with production of copy of the judgment but in respect of a

decree sheet no power is vested in the Court to dispense it. As held in Phoolchand and Another Vs. Gopal Lal, such mistake could be condoned

only when formal decree sheet had not been prepared by the trial Court. In the present case there is nothing to show that the trial Court had not

framed the decree sheet. In fact the petitioner has taken a different plea that copies of the decree sheet as well as of the judgments were mixed

with some other case lying with his advocate. As the above said provision contained in Rule 1, Order 41 C.P.C. is mandatory in nature the court

cannot assume jurisdiction by condoning the delay.

I have also perused the memorandum of appeal. No substantial question of law as required u/s 100 C.P.C. has been framed.

For the reasons stated above there is no merit in this application which is dismissed. Consequently civil Second Appeal No. 10 of 1992 filed by

the petitioner-appellant being incompetent is dismissed.