State of Punjab vs Joginder Singh

J.V. Gopta J.—This order will dispose of the two Civil Revision Petitions Nos. 2611 and 2612 of 1985, as the question involved is common in both the cases.

The Plaintiff Respondent Joginder Singh, filed the suit for the grant of declaration to the effect that the order of the General Manager, Punjab, Roadways, Jalandhar, vide which his six increments were withheld with cumulative effect, was illegal. The trial Court decreed his suit vide judgment and decree dated August 23, 1984. Appeal against the same, filed on behalf of the State of Punjab, was dismissed in limine under the provisions of Order XLI Rule 11, CPC (hereinafter called the Code), on November 6, 1984. No decree-sheet was prepared in appeal on the basis of the said judgment. The application of the State of Punjab for preparing the decree sheet, in appeal, was returned by the Additional District Judge on June 7, 1985 with the endorsement of the Reader,-

The appeal was dismissed in limine. As such no decree-sheet was required to be prepared.

with the following remarks,---

Returned in original with the above report of the office.

Dissatisfied with the same, the State of Punjab has filed the petition under Article 227 of the Constitution for giving a direction to the Additional District Judge to pepare the decree sheet, in appeal, as required under Order XLI Rule 11 (4) of the Code.

After hearing the learned Counsel for the parties, I find that it was incumbent upon the learned Additional District Judge to draw the decree in accordance with the judgment in appeal vide which she dismissed the appeal in limine. Sub rule (4) of Rule 11 of the order XLI is quite specific on this point and reads: -

11 Power to dismiss appeal without sending notice to lower Court (1) The Appellate Court after sending for the record if it thinks fit so to do, and after fixing a day for hearing the Appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without "sending notice to the Court from whose decree the appeal is preferred and without serving notice on the Respondent or his pleader.

(2) *** *** *** ***

to

(3) *** *** *** ***

(4) When an Appellate Court, not being the High Court, dismiss an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds of doing so, and a decree shall be drawn up in accordance with the judgment.

Apart from the above, even prior to Sub-rule (4) of Rule 11 of Order XLI of the Code, which was added by Section 87 of the CPC (Amendment) Act, 197(sic), there it specific prevision in this behalf in Rule 9 of Chapter 14-B of the Rules and orders of the Punjab High Court, Volume I, as corrected up to January, 1965, the relevant part of which reads:-

9 (a) The Appellate Court should be careful to see that the object of the statutory provision of Order XLI Rule 1, is not defeated and Respondents put to unnecessary trouble and expense by the indiscriminate issue of notice to Respondent in all cases.

When decision is confirmed under this rule, the confirmation should be notified to the lower Court.

Such confirmation falls within the definition of ''decree'' at given in Section 2(2) of the Code and being as such, appealable, a formal decree should be framed in every case disposed of under the provisions of Order XLI Rule 11.

(b) *** *** *** ***

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In view of the said rule also, the appellate Court should have drawn the decree in order to enable the Defendant to file a regular second appeal, if desired.

Consequently, both the revision petitions succeed and are allowed. The impugned orders are set aside. It is directed that the learned Additional District Judge will frame the necessary decrees in accordance with the jugdments whereby the appeals fled on behalf of the Appellant against the judgments and decrees of the trial Court were dismissed in limine.