Jammu & Kashmir and Ladakh High Court: Ali Mohammad Magrey, J., held that once an appeal is duly entertained without the production of a certified copy of the Decree sheet with it, then, subsequently, the appeal could not be dismissed.
Background
In the instant application the Applicants had sought permission of the Court to place on record the copy of Decree along with the main Appeal preferred against the impugned judgment.
Evidently, the applicant had only annexed the copy of the Judgment and not the Decree sheet along with the Appeal, which is a mandatory requirement as per provisions of Order XLII Rule 1 and non-compliance thereof, goes to the root of the case and renders the Appeal defective. It was submitted by the applicants that there had been no deliberate or intentional failure on their part to annex copy of the Decree sheet of the 1st Appellate Court with the Appeal and that it was only because of the language used in Order XLI Rule 1 of the Code that they had, besides annexing copy of the Judgment and Decree of the Trial Court, had annexed certified copy of the Judgment of the 1st Appellate Court along with the Appeal, however, failed to notice the requirement of annexing a certified copy of Decree sheet.
Maintainability of 2nd Appeal where the party failed to annex the certified copy of the Decree of 1st Appeal
The law is that if at the time when the appeal is preferred, a Decree has already been drawn up by the Court below and the Appellant has not applied for it in time, it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court, a Decree, in fact, has not been drawn up by the Court below, in such a case, if an application has been made by the Appellant for a certified copy of the Decree, then, all that can be said against the appeal preferred by him is that the appeal is premature since a Decree has not been drawn up, and it is the Decree against which an appeal lies.
Though the mandate of Order XLII Rule 1 of CPC is mandatory and, as soon as it is shown that an appeal had been filed with a memorandum of appeal accompanied only with a certified copy of the Judgment and without the certified of the Decree, the appeal must be dismissed as being incompetent, the Bench took a lenient view and stated that,
“If the Appeal has passed through the stage of admission through oversight of the office, then, the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should procure the certified copy of the decree as soon as it is supplied to him.”
Besides, observing that there is no hard and fast rule of general applicability laid down for dealing with appeals defectively filed under Order 41 Rule 1, the Bench opined that appropriate orders are required to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant(s) required to remedy the defect(s).
Therefore, rejecting the objection of the Respondents with regard to the Appeal being defective, the Bench observed,
“The complications in the present case have partly arisen as a result of the failure of the Registry of this Court to notice the defect of the Appeal being without certified copy of the Decree and to take appropriate action with respect thereto at the initial stage before the Appeal was placed for admission under Order 41 Rule 1.”
Findings and Decision
In Light of the above, the Bench held that once an appeal is duly entertained without the production of a certified copy of the Decree sheet with it and neither the memorandum of appeal was rejected nor returned, as provided under Order XLI Rule 3 of the Code, then, subsequently, the appeal could not be dismissed on the ground that at the time of the presentation of the appeal the same was not accompanied with a certified copy of the Decree under appeal because by that time the stage for dismissing the appeal for non-compliance of the provisions of Order XLII of the Code had already passed.
Accordingly, the instant application was allowed and the certified copy of the Decree passed by the 1st Appellate Court was taken on record, to be made part of the memorandum of appeal. [Maqbool Buhroo v. Ahad Buhroo, 2021 SCC OnLine J&K 717, decided on 27-09-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance by:
For the Applicants: M. A. Qayoom, Advocate with Mian Muzaffar, Advocate
For the Respondent(s): G. A. Lone, Advocate
