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Judgment
Muzaffar Hussain Attar, J.—Principal District Judge, Baramulla, vide judgment dated 23.08.2007 held Respondent entitled to receive the
amount of Rs. 3.10 lacs as damages with interest at the rate of 9%. The Respondent had instituted civil original suit seeking damages from
Appellants on multiple grounds. On the fateful day viz. 08.03.1998, Respondent suffered severe electric shock near village Johama, on account of
alleged negligence of the Appellants. The Respondent was admitted in Bones and Joints Surgery-Hospital, Barzalla, Srinagar, and his right arm
was amputated, consequently, Respondent suffered permanent disability. The trial Court, accordingly, decreed the suit in the aforementioned
amount after recording a finding that the Respondent had proved the case.
This appeal is filed by the Appellants. In the caption of appeal as also in the prayer clause, it is prayed by the Appellants that judgment dated
23.08.2007 passed by the learned Principal District Judge Baramulla be set aside. The Appellants did not challenge the decree.
Notice has not been issued in this appeal as on date for the reason that Mr. Syed Manzoor, learned Counsel appearing for Plaintiff-Respondent
has raised objections about the maintainability of the appeal.
Learned Counsel for Respondent submitted that as the Appellants have not challenged the decree, thus in law appeal is not competent. Learned
Counsel also submitted that decree was prepared by the trial Court before 03.03.2008, as copy thereof was provided to the Plaintiff-Respondent
which bears the date 03.03.2008. This copy is taken on record.
Mr. Chasoo, learned Counsel appearing for Appellants submitted that an application is filed seeking permission to place on record certified
copy of the decree which application has been allowed in the year 2009. Learned Counsel also submitted that, in the memo of the appeal, it is
specifically pleaded that at the time of filing of the appeal, decree sheet was not prepared. Learned Counsel further submitted that he has also filed
an application seeking amendment of the memo of the appeal to the extent of throwing challenge to the decree.
Heard learned Counsel for parties. Considered the matter.
Right to file an appeal is statutory right and unless statute authorizes a party to file an appeal, the same cannot be filed. Once statute gives a right
to aggrieved person to file an appeal, the appeal is to be filed on the terms and conditions provided in the statute itself. Section 96 of the CPC
confers right on an aggrieved person to file an appeal against the original decree. The said provision is reproduced as under:
Appeals from original decree
Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
An appeal my lie from an original decree passed ex parte.
No appeal shall lie from a decree passed by the Court with the consent of parties.
No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Court of Small Cause, when the amount
or value of the subject matter of the original suit does not exceed three thousand rupees.
Order XLI Rule 1 of CPC provides procedure for filing of appeal. The said order also provides what would be the form of the appeal and what
is to accompany the memo of the appeal. The Order XLI Rule 1 is reproduced as under:
Form of appeal. What to accompany memorandum 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
decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded: [Provided that where two or
more suits have been tried together and a common judgment has been delivered therefore and two or more appeals are filed against any decree
covered by that judgment, whether by the same Appellant or by different Appellants, the Appellant Court may dispense with the filing of more than
one copy of the judgment.]
The appeal, on the plain reading of the aforementioned provisions of law, can be filed against a decree and the memo of appeal shall be
accompanied by copy of the decree and copy of the judgment, unless appellate Court dispenses with filing of the copy of the judgment. The appeal
has been filed on 12.03.2008 before this Court. The appeal filed against the judgment is in law to be filed against decree. The copy of the decree
sheet produced by Mr. Manzoor, as already stated, bears the date 03.03.2008 on which date the certified copy was issued to the Plaintiff
Respondent, which fact conclusively shows that the decree sheet was prepared before 03.03.2008. The appeal filed on 12.03.2008 did not call in
question the decree and even decree sheet was not placed on record.
In view of the plain language of Section 96 of CPC read with Order XLI Rule 1, an appeal can be filed against a decree and certified copy of
decree sheet is to accompany memorandum of appeal. No appeal in this case is filed against the decree nor decree sheet is placed on record with
memorandum of appeal. The only conclusion which can be drawn is that, in law, no appeal is pending on the files of this Court as the statute does
not authorize and recognize an appeal against a judgment. The application filed seeking amendment of the memo of appeal, in this fact situation, is
rendered inconsequential. An amendment can be ordered to be carried out in a case/pleading, which, in law, is pending on the files of the Court.
For the above stated reasons, this appeal, being no appeal in the eyes of law, is accordingly dismissed along with all connected applications.
However, dismissal of this appeal which has been held to be not an appeal pending on the files of the Court may not prevent the Appellant to
proceed in accordance with law in the matter. It is further provided that the amount which is deposited with the Registry of this Court be released
in favour of the Plaintiff-Respondent, subject to furnishing of an undertaking that in the event Appellants in any appropriate proceedings succeed in
the case he will reimburse the same.