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Judgment
Gh. Hasnain Massodi, Judge
On 17 August 2009 CMP no. 430/09 for the reasons stated therein was allowed and Civil Second Appeal (C2A 12/09) permitted to be filed
without copy of the decree sheet impugned in the appeal. However, the non-applicant/appellant was asked to place on record certified copy of the
decree sheet dated 31st July, 2009, within two weeks. The non-applicant/appellant appears to have abided by the order dated 17 August 2009
and placed on record copy of the decree dated 31/07/2009 called in question in the CSA. The application to which the certified copy of the
decree sheet is appended stands duly entertained by the Registry.
The applicants/respondents in the application in hand i.e. IA 694/2009 insist that earlier application for exemption from placing certificated copy
of the decree sheet with the memorandum of appeal was based on erroneous and incorrect facts. The non-applicant/appellant, according to the
applicants/ respondents, committed a fraud upon the court by pleading that he had filed an application for issuance of the copy of the decree sheet
with the competent authority and that the certified copy of the decree sheet had not been made available to the non-applicant/appellant constraining
him to seek permission to file the Civil Second Appeal in absence of the copy of the decree sheet. It is pleaded that the application addressed to
the Superintendent Copy Branch of the concerned court as a matter of fact related to some different case decided in the year 2006 and not the
case in hand and that the non-applicant/appellant actually filed an application for issuance of certified copy of the decree sheet on 20 August 2009.
The applicants/respondents pray that the order dated 17 August 2009 be recalled, the permission withdrawn and the appeal dismissed.
The non-applicant/appellant in his objections filed on 09-3-2010 has disputed the averments made in the application and insisted that no ground
was made out for recalling the order dated 17 August 2009. The non-applicant/appellant denies that any fraud, deception or manipulation was
practiced and that because of a bona fide mistake, copy of application not pertaining to the matter in question was placed with the application for
grant of leave to file CSA in absence of the copy of the decree sheet appealed against.
Heard and considered.
A closer look at IA 694/2009 reveals that the only ground urged by the applicants/respondents in support of prayer made therein is that the
non-applicant/appellant in the application for grant of permission to file the appeal without placing certified copy of the decree sheet stated that
though the non-applicant/appellant had approached the court for issuance of certified copy of the decree sheet same was not issued to the non-
applicant/appellant and that to lend support to his case the non-applicant/appellant appended photocopy of the application claimed to have
presented to the concerned authority for issuance of certified copy as annexure P-D, which as a matter of fact pertained to a different case. The
non-applicant/appellant in the supplementary affidavit has admitted the lapse and pleaded that the annexure P-D was inadvertently appended with
the application. The non-applicant/appellant pleads that the error was not intentional or deliberate, has placed himself at the mercy of the court and
prayed that the error be condoned. The non-applicant/appellant also pleads violation of Rule 6 of General Civil Rules by the trial court. The non-
applicant/appellant has placed certified copy of the application that according to the non-applicant/appellant was made to the competent authority
for issuance of certified copy of the decree, as annexure P-A1 to the supplementary affidavit.
Arguments advanced by learned counsel for the applicants/respondents that the court in terms of Order 41 Rule 1 lacked power to dispense
with filing of the copy of the decree sheet and that the court in the instant case ought not to have granted permission on August 17, 2009 to the
non-applicant/appellant to file CSA in absence of the copy of the decree sheet, merits to be ignored for the reason that no such plea is raised by
the applicants/respondents in IA 694/2009. For the said reason law laid down in J&K State Financial Corporation v. Balwant Singh and others in
2008 (I) SLJ relied upon by learned counsel for the applicants/respondents is of no avail to them. There can be no disagreement with the learned
counsel for the applicants/respondents that whereas Order 41 Rule 1 makes room for exemption from filing copy of the judgment impugned in the
appeal with the memorandum of appeal, it does not confer power on the appellate court to dispense with filing of the copy of the decree sheet. In
such a situation the appellate court as laid down in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, may return the appeal to the
appellant for presentation with the certified copy of the decree sheet after it is obtained or if the appeal has passed the stage of admission, through
oversight of the office, the court may adjourn the hearing of the appeal with the direction that the appellant should produce a copy of the decree
sheet as soon as it is supplied to him. In such a case, the course advisable is to direct the subordinate court to draw up the decree and provide a
copy thereof to the appellant.
In the present case this court has already accorded permission to the non-applicant/appellant to file the CSA without copy of the decree sheet
and the condition subject to which such permission was granted also stands satisfied. Furthermore, as pointed out hereinabove, the
applicants/respondents have not in CMP 694/2009 thrown challenge to competence of the court to accord permission to file the CSA without
copy of the decree sheet. In view of the attending circumstances and the candid admission on the part of the non-applicant/appellant that the
annexure-PD was inadvertently appended to CMP 430/2009, no case is made out for revoking the order dated 17 August 2009. Failure of the
non-applicant/appellant in approaching the competent authority for issuance of the certified copy of the decree sheet before CMP 430/2009 and
CSA 12/09 were filed, also must not persuade the court to revoke the aforesaid order when not only permission to file the CSA without copy of
the decree sheet stands accorded but the condition subject to which such permission was granted is also satisfied.
Learned counsel for non-applicant/appellant has drawn attention of the court to Rule 6 of General Service Rules prescribed for guidance of the
subordinate courts whereunder Superintendent Copying Branch is duty bound to inform an applicant, who has applied for copy of a civil judgment
for the purpose of appeal, that the copy of decree is also a requisite and can be supplied to the applicant with the copy of the judgment and in the
event the applicant declines to take copy of the decree, to make an endorsement to that effect on the copy of the judgment. Rule 6 having regard
to its importance in day to day work in subordinate courts, needs to be noticed. It reads as under:
Appeals to be accompanied by copy of the decree and judgment appealed against: Order XLI, Rule 1 of the Code of Civil Procedure, provides
that the memorandum of appeal shall be accompanied by a copy of the decree appealed against, and (unless the Appellate Court dispenses
therewith) of the judgment on which it was founded.
Whenever an application is made for a copy of a civil judgment for the purpose of appeal, the application should always be informed that a copy of
the decree is also requisites, and be supplied therewith, unless he declines to pay the necessary fees, in which case a certificate, under the signature
of the officer in charge of the copying department should be endorsed on the copy of the judgment supplied to the applicant, to the effect that he
was duly informed that a copy of decree was requisite, and, after being so informed, declined to pay fees or the same.
It follows that presiding officer of the subordinate court performing duty of Superintendent of the Copying Branch is saddled with the following
duties:
To inform the applicant whenever an application is made for a copy of a civil judgment for the purpose of appeal, that a copy of decree is also
requisite for the purpose of appeal.
To offer to supply copy of the decree with the copy of the judgment.
To make an endorsement on the copy of the judgment that the applicant was so informed and the applicant despite having been informed
declined to take the copy of the decree.
It is argued by the learned counsel for non-applicant/appellant that in the present case Rule 6 of General Service Rules was observed in breach
in as much as neither the presiding officer/Superintendent Copying Branch informed the non-applicant/appellant that the copy of the decree sheet
was a requisite for filing appeal against the judgment and decree nor any endorsement was made to the said effect on the copy of the judgment
already appended with the memorandum of appeal. That as the non-applicant/appellant was not so informed or declined to receive the copy of the
decree, it is argued, the application for revoking order dated 17 August 2009 deserves to be dismissed in view of the apparent violation of the
General Service Rules (supra).
The copy of the judgment appended to the applicant for grant of appeal in the present case does not have on it the endorsement/certificate
contemplated by Rule 6 supra. However, the applicant/respondents have been held to have failed to make out a case for revoking the order dated
17/08/2009, it is not necessary to dilate on fallout of breach of Rule 6 supra on the application in question. It is nonetheless important to invite
attention of all subordinate courts to the requirements of Rule 6 (supra) so that the Rule is followed in letter and spirit and an applicant intending to
file an appeal against a decree is not taken unawares and the appeal exposed to fatal consequences.