Town Area Committee vs Nabir Joo Reshi and Others

J.N. Wazir, C.J.—This is Defendant's second appeal and arises out of a suit filed by the Plaintiff for the recovery of damages to the extent of

Rs. 1,000/- against the Town Area Committee, Anantnag Defendant. The trial court of Subordinate Judge, Anantnag decreed the Plaintiff's suit.

On appeal the District Judge remanded the case to the trial court for fresh decision in the light of the observations, made in his judgment. The trial court raised fresh issues as desired by the District Judge and, after going through the entire evidence led by the parties, again decreed the suit in favour of the Plaintiff. The Defendant went up in appeal before the ""Additional ""District Judge and along with the memorandum of appeal filed a copy of the decree and of the judgment on which the decree was founded.

An objection was raised before the lower appellate court that the copy of the previous judgment of the trial court which formed part of its subsequent judgment was not filed with the memorandum of appeal and, therefore, the appeal was not properly presented. This objection found favour with the lower appellate court and it dismissed the appeal for want of proper presentation. The Defendant has come up in further appeal to this Court and it is argued that the lower "appellate court has" erred in holding that the appeal was not properly presented.

It is true that the trial court had remarked in its judgment under appeal that the previous order dated 18-11-2007 would form part of its judgment. The question for consideration before the lower appellate court was whether it was necessary for the Defendant Appellant, to file a copy of the previous order along with the memorandum of appeal and failure to do so amounted to improper presentation of the appeal.

The provision of the CPC governing this matter is to be found in Order 41, Rule 1 which lays down that the memorandum of appeal shall be accompanied by a copy of the decree ap pealed from and (unless the appellate court dispenses therewith) of the judgment on which if is founded.

The copy of the judgment which is required to be filed under Order 41, Rule 1 is the final Judgment on which the decree is founded. If in the final judgment a reference is made to a previous order, it will in my opinion, not be necessary to file the copy of that order as well along with the memorandum of appeal.

The final judgment was made on 32-3-2011 which contained the ultimate decision of the trial court on the claim put forward in the plaint and a copy of that final judgment was filed by the Defendant Appellant before the lower appellate court. It was not obligatory under Order 41, Rule 1 for the Appellant to file a copy of the order to which reference was made in the final judgment. If the contention of the Plaintiff-Respondent that the copy of the order referred to in the final judgment should also be filed is taken to be correct, it will give rise to anomalous results.

For instance, if in a judgment reference is made to a certain ruling by a court and on the basis of the reasons given in that ruling it is held that the Plaintiff has a right to the property in dispute, then according to the contention of the learned Counsel, it will be necessary to file with the memorandum of appeal a copy of that ruling along with the copy of the judgment and the decree passed thereon; but Order 41, Rule 1 of CPC does not provide so. It merely provides that a copy of the decree and final judgment on which the decree is founded should accompany the memorandum of appeal.

The Defendant Appellant had filed a copy of the final judgment which contained the ultimate decision on the claim put forward by the Plaintiff and the lower appellate court was not correct in holding that the appeal was not properly presented.

We, therefore, allow this appeal, set aside the order of the lower appellate court dated 10-12-1958 and remand this case to the District Judge with the direction that he will re-enter this appeal to its original number and after hearing the parties dispose of the appeal afresh accordingly to law.

The costs shall abide the result.