Saleema (Mst.) vs Mohd. Amin

CMP No. 723 of 1998

Mr. Hasnain Massodi, J. - Applicants on 25th March 1997 Filed Civil Second Appeal against judgment and decree passed by Learned District Judge Pulwama on 28th December 1996 in Civil First Appeal No. 29/1989 titled Hamid Ahmad and another v. Iqbal Kaloo and others as also judgment and decree passed by Learned Sub Judge, Shopian, on 23rd February 1989 in Civil Suit titled Mst. Sara v. Iqbal Kaloo and others (File1/Transfer). Learned Sub-Judge, Shopian, vide judgment and decree dated 23rd February 1989, decreed the suit with costs.

First Appellate Court dismissed appeal against Trial Court judgment with costs and upheld Trial Court judgment and decree. Certified copies of judgment and decree of First Appellate Court were enclosed with memorandum of appeal. However, applicants failed to append certified copies of judgment and decree passed by the Court of First instance/Trial Court, though judgment and decree were also impugned in the appeal.

Non-applicants questioned maintainability of appeal on the ground that the copies of Trial Court judgment and decree did not accompany memorandum of appeal. They insisted that in absence of copies of judgment and decree, Civil Second Appeal was liable to be dismissed at threshold. The objection taken has prompted applicants to file instant applicant for grant of leave to place on record copies of judgment and decree passed by Sub Judge, Shopian.

Applicants in paragraph 01 of application admit that they in terms of Order 41, Rule 1 , CPC, were supposed"" to file copy of Trial Court judgment and decree with the appeal. Applicants' case is that word "shall" in Order 41, Rule 1 CPC is to be read as "may" as the procedural law is not to be allowed to be an impediment in the course of substantial justice. It is averred that First Appellate Court has partly disallowed the appeal and recorded disagreement with some of conclusions drawn by learned Trial Judge. Applicants explain reasons for filing application in following words:

In view of this matter, the application is made because of the fact that the counsel for the respondents has taken this objection that the appeal is to be dismissed because it is not accompanied by the judgment and decree of the Court of 1st instance i.e. Sub judge Shopian"".

They, on grounds urged, seek permission to place on record copies of Trial Court judgment and decree, earlier not annexed with the memo of appeal.

Application is resisted by non-applicants on the ground that as requirement to annex copy of judgment and decree of Court of first instance with memo of appeal is mandatory, failure on part of applicants to file copy of judgment of Court of first instance with appeal, renders appeal not maintainable. It is pleaded that as Civil Second Appeal was not maintainable on the date it was filed, it by time the application on hand was filed, became time barred and liable to be dismissed on the ground of limitation. It is next averred that as applicants have failed to plead a sufficient cause in application to explain failure to annex copy of judgment and decree of Court of first instance with memo of appeal, application merits outright dismissal. Non-applicants dispute that First Appellate Court partly allowed appeal or modified Trial Court judgment as claimed in application. Non applicants, labelling application as misconceived and without substance, seek its dismissal with costs.

I have gone through application as well as objections filed by non-applicants and have heard counsel for parties.

Order 41 and XLII, Code of Civil Procedure, are relevant to present controversy and deserve to be given closer look. Order 41 deals with appeals from original decrees. Rule 1 Order 41 gives form of appeal and enumerates documents to accompany memorandum of appeal. It reads as under:-

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment:

Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the appellate Court may dispense with the filing of more than one copy of the judgment.

Order 42 relates to appeals from appellate decrees. Rule 1 Order 42 titled "Procedure" needs to be noticed:

Procedure :

The rules or Order 41 shall apply, so far as may be, to appeals from appellate decrees. The appellate shall, in addition to the copies of the decree and judgment appealed from, also file a copy of the judgment of the Court of first instance.

Conjoint reading of Rule 1, Order 41, and Rule 1, Order 42, leads to conclusion that copies of judgment and decree appealed from, as also copy of judgment and decree of Court of first instance are to accompany memorandum of appeal, where appeal is directed against appellate decree.

In the present case, appeal is directed against appellate judgment and decree as well as judgment and decree of Court of first instance or Trial

Court. Applicants, therefore, had to mandatorily enclose copy of judgment and decree of Court of first instance with memorandum of appeal.

Applicants have not adhered to requirements laid down in Order 41 and XLII. This is the reason they have come up with application on hand for leave to place on record copies of judgment and decree of Court of first instance.

It is well settled law that requirement to enclose copy of judgment and decree of Court of first instance with the memorandum of appeal is mandatory as evident from use of expression "shall" by the law makers. In the event requirement is not adhered to, appeal is rendered not maintainable. In Om Prakash Gupta v. Suresh Bakshi AIR 1998 J&K 9 : JKJ Soft JKJ/7116 where appellant had placed on record photocopy of judgment and decree of Court of first instance and failed to place on record certified copies of judgment and decree, it was held that requirement to append copy of judgment and decree of Court of first instance was mandatory and not directory as sought to be projected by appellants. The principle was reiterated in Mali v. Ghulam Haider (7 JKLR 104 (DB) : JKJ Soft JKJ/8315) and Qazi Khalil ul Rehman v. Atma Ram (7 JKLR 101: JKJ Soft JKJ/8314).

It is important to note that applicants do not spell out any reason muchless convincing one to justify their failure to append copy of judgment and decree of Court of first instance with memorandum of appeal. The applicants do not plead, let alone make out sufficient cause to explain their failure or delay in enclosing judgment and decree of Court of first instance. They woke up only after non-applicants took an objection to maintainability of Civil Second Appeal and insisted on its dismissal on the ground that copy of judgment and decree of Court of first instance did not accompany memorandum of appeal. Even if it is assumed, though such a view may not be permissible in view of settled legal position, that applicants could seek leave to place copy of judgment and decree of Court of first instance on record, in the facts and circumstances of the case such prayer does not deserve to be allowed inasmuch as leave is sought more than 1½ year after Civil Second Appeal was filed and that too without any sufficient cause.

For reasons discussed, application for grant of leave to place on record copy of judgment and decree of Court of first instance is dismissed.

Resultantly, Civil Second Appeal is also dismissed as not maintainable.