Bharat Bhushan vs Commissioner, Municipal Corp.of Ludhiana

J. V. Gupta, J.—This revision petition is directed against the order of the Additional District Judge, Ludhiana, dated December 22, 1977, whereby the appeal against the order of the trial Court vacating the ad interim injunction passed by it, was dismissed being barred by time.

The appeal was filed with the true copies duly authenticated by the counsel for the appellant, which was admitted by the learned Additional District Judge, vide order dated October 10, 1977. It was stated in the said order that a certified copy of the impugned order be also filed by October 13, 1977. However, a certified copy thereof was filed on December 21, 1977, whereas the appeal was heard on December 22, 1977. The appeal has been dismissed on the ground that the certified copy of the impugned order was not filed along with the memorandum of appeal. The argument raised on behalf of the appellant that the production of the said certified copy would be presumed to have been waived since the appeal stood admitted in its absence was not accepted. Dissatisfied with the same, the plaintiff has come up in revision to this Court.

The learned counsel for the petitioner has drawn my attention to the amendment in Order XLI Rule 1, Code of Civil Procedure, (hereinafter called the Code), by this Court, whereby an addition has been made to subrule (1) of Rule 1 of Order XLI of the Code, as a further proviso, as follows :

"Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an Advocate as correct.''''

It appears that the attention of the lower appellate Court was not drawn to the said rule as amended by this Court. The appeal was duly admitted by the lower appellate Court noting that a certified copy of the impugned order was not filed with the memorandum of appeal. It is also not disputed that it was filed on December 21, 1977, a day earlier to the date of hearing the arguments in the appeal. Under the circumstances, the appeal could not be dismissed simply because it was not accompanied by a certified copy of the order appealed against at the time of its presentation.

In this view of the matter, this appeal succeeds and is allowed. The impugned order is set aside and the case is sent back to the District Judge, Ludhiana, for disposing of the appeal on merits in accordance with law. The parties have been directed to appear in the Court of the District Judge, Ludhiana, on March 16, 1985. It is surprising that even the records of the trial Court were also sent for which were not at all required. In case, the records would not have been sent for, the suit itself would have been disposed of by now. The same be sent back forthwith for proceeding further in the suit. Parties have been directed to appear in the trial Court also on 16.3.1985.