Posted On by &filed under High Court, Rajasthan High Court.


Rajasthan High Court
Deepa And Ors. vs Kaluram And Ors. on 4 September, 2000
Bench: S Pathak, R Upadhyaya


ORDER

1. This is an appeal filed under Section 224 of the Rajasthan Tenancy Act, 1955 (herein-after to be referred as ‘the Acl’) against the judgment & decree of the Revenue Appellate Authority, Pali passed in appeal No. 262/89 on 15.7.95.

(2). Briefly stated, the facts of the case are that the plaintiff-respondents filed a revenue suit No. 10/77 u/S 53 of the Act for division of holdings in the trial court which was dismissed on 21.9.87. An appeal No. 262/89 was preferred by the plaintiff-respondents which was accepted on 15.7.95. The defendants having tell aggrieved, preferred this second appeal in this court on 1.9.95 along with certified copy of the judgment of the learned Revenue Appellate Authority with an application under Rule 17 of the Rajasthan Revenue Courts Manual : Part-1 (herein-after in short to be referred as Courts Manual) wherein it was stated that the learned appellate court-has not prepared the decree, therefore, after obtaining the decree, the same shall be produced in the court. It appears that the matter was listed for admission before the D.B. of this court on 4.10.95 and the appeal was admitted. The fact of appeal having been filed in the absence of the certified copy of the decree has not been mentioned. Be that as it may, the matter was pending for calling for he record and the service on
the respondent. On 11.7.2000, an application was filed on behalf of the respondents that appeal was not maintainable in view of the provisions contained in Courts Manual and particularly Rule 17 because according to the provisions of the Courts Manual, the appeal is maintainable only when a certified copy of the decree is filed along with the memo of appeal. It appears that the appellants filed an application on 24.7.2000 in his this Court and stated inter-alia therein that on a previous occasion i.e. on 14.6.2000, copy of She decree prepared by the R.A.A., Pali was filed in the court, but that is not available in the record, therefore, the another copy of the decree after obtaining the same has been filed. Hence, the appeal be heard on merits.

(3). Heard learned counsel for the parties and perused the material available on record.

(4). The learned counsel for the respondents has raised a preliminary objection that the appeal is not maintainable as it was filed without the certified copy of the decree and Rule 17 of the Revenue Courts Manual prescribes that in the absence of certified copy of the decree against which an appeal is filed, shall not be maintainable. According to the learned counsel, Rule 17 of Revenue Courts Manual is mandatory.

(5). To meet with the above preliminary objection, the learned counsel for the appellants has contended that the appeal has been admitted, therefore, it should be treated that filing of the certified copy of the decree has been dispensed with completely. The learned counsel submits that since already copy of the decree has been filed in the year 2000, therefore, now the matter should be heard on merits and this will be in the interest of justice. According to the learned counsel, when initially at the time of filing of the appeal, an application was moved for the dispensation of the certified copy of the decree and that application has been accepted as the appeal has been admitted, therefore, now there is no question to dismiss the appeal on the preliminary objection.

(6). We have considered the rival submissions made before us. In the present matter, the point for consideration is as to whether preliminary objection raised by the learned counsel for the respondents requires to be accepted or not.

(7). It shall be proper to reproduce relevant portion of Section 224 of the Rajasthan Tenancy Act which reads as under:-

“223. Appeals from appellate decree-

(1) An appeal shall lie to the Revenue Appellate Authority from a decree passed in appeal by a Collector.

(2) An appeal shall lie to the Board from a decree passed in appeal by a Revenue Appellate Authority on any of the following grounds, namely:-

(i) the decision being contrary to taw or to some usage having the force of law;

(ii) the decision having failed to determine some material issue of law or usage having the force of law;….”

(8). The relevant rule of the Rajasthan Revenue Courts Manual : Part-1 is being reproduced below which reads as under:-

“17. Documents to accompany memorandum of appeal of revision application-Every memorandum of appeal or application for revision shall be accompanied by-

(a) a copy of the decree or order against which the appeal or application is directed;

(b) a copy of the judgment upon which such decree or order is founded;

(c) a copy of the judgment of the court of-first instance when the appeal or application is directed against an appellate order
or decree;

(d) in the cases of memorandum of appeal which is filed after the expiry of the period of limitation, an application supported by an affidavit for extension of the period of limitation under Section 5 of the Indian Limitation Act:

Provided that the Court may for sufficient cause shown dispense with a copy of the formal order under clause (a) or a copy of the judgment under clause (b) or (c).”

(9). It will be clear from the above rule of Revenue Courts manual that the courts are required only to dispense with the production of the certified copy in certain circumstances, in Rule 17, no. specific mention has been made regarding granting of time for production of certified copy of the decree. A perusal of Section 224 of the Rajasthan Tenancy Act would indicate that appeal shall lie under this section against a decree. In the present matter, it is not in dispute that present appeal has been filed against the decree of the learned Revenue Appellate Authority. It is also not in dispute that when the appeal was filed, certified copy of the decree was not filed and an application was moved with the averments that as soon as it will be made available to the appellants, the same shall be filed. The application so filed is not supported by an affidavit, therefore, the contents to the extent that appellate court has not prepared the decree, cannot be accepted particularly in the circumstances where the record received from the learned first appellate Court clearly indicates that the decree was prepared on 15.7.95 itself. The learned counsel for the appellants has also contended that normally the decrees are not signed on the day the judgment is pronounced. It is of course to some extent correct position but the law so provides that within 3 days of the passing of the judgment, decree should be prepared and it should be signed and dated when the judgment was pronounced. !n this connection, relevant rule is Rule 136 of the Revenue Court Manual : Part-II. Even for assuming sake, judgment was pronounced and the decree was signed on a subsequent date, then also it was the duty of the appellants to have obtained the copy of the decree from the learned first appellate court. What the appellants have done is that in the year 2000, copy of the decree was applied in the Board of Revenue after receipt of the record from the learned first appellate Court. Thus, it appears that no steps were taken by the appellants to obtain the copy of the decree from the learned first appellate Court. The record of the learned first appellate Court was received in the year 1996. Even after the receipt of the record in the court, the appellants waited for four years and it appears that when in July, 2000 an objection was raised by the respondents by way of moving an application that appeal was not maintainable in the absence of certified copy of the decree, steps were
taken to remedy the defect. In the above circumstances, there is no hesitation is coming to the conclusion that the appeal was filed in the absence of certified copy of the decree and the appeal as such was not maintainable. The contention of the learned counsel for the appellants that on 14.6.2000 certified copy of the judgment was filed in the court but that is not available in the record, in our considered opinion, will not make any difference. The order-sheet dated 14.6.2000 only makes a mention that on that day, some application u/S 151 of the CPC was moved by the appellants and there is no mention of the fact that certified copy of the decree was filed. Be that as it may, one thing which emerges out is that in the year 2000, whether it is June 2000 or July, 2000, the certified copy of the decree of the learned R.A.A. was applied for in the Board of Revenue. The provisions of Rule 17 are mandatory in nature and its compliance is must and non-compliance would be fatal. Our view finds support from a decision rendered by the larger bench of this court ‘Bhairu Lal vs. Danmal’ (1), wherein it has been held that Rule 30 of the Revenue Courts Manual: Part-II is mandatory which is analogous to Rule 17 of the Courts Manual : Part-I. No dispute has been put forward regarding the provisions being not mandatory. In the above circumstances, there is no hesitation in coming to the conclusion that Rule 17 is mandatory in nature and its non-compliance would be fatal. The contention of the learned counsel for the appellants that since the appeal has been admitted therefore it should be presumed that the court has dispensed with filing of the certified copy along with memo of appeal, is also not well founded for the reason that perusal of Rule 17 of the Courts Manual would indicate that it does not empower the court to dispense with the filing of the certified copy of the decree. A liberal interpretation of Rule 17 would only mean that in certain circumstances such as if the court has not prepared a decree, then in this circumstance in the absence of certified copy of the decree, appeal may be filed, but that does not mean that the courts will dispense with the filing of the certified copy of other decree. The Hon’ble Supreme Court in a case reported in AIR 1961 SC page 832 has observed as under:-

“The requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree, the filing of the appeal would be incomplete, defective and incompetent.

No hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under 0.41 R./CPC. Appropriate order will have 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 scrutinised at the initial stage scorn after they are filed and the appellant required to remedy the defects. If at the time when the appeal is preferred, a decree has already been drawn up by the trial court 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 had not been drawn up by the trial court; 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. In such
a case, if the office of the High Court examines the appeal carefully and discovers the defect, the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained. 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 produce the certified copy of the decree as soon as it is supplied to him. In such a case, it would be open to the High Court and it would be its duty to direct the subordinate court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate court should return the appeal to the appellant as defective, and when the decree is filed by him, the question of limitation may be examined on the merits.”

(10). A perusal of the above observations made by the Hon’ble apex court would further make it clear without any manner of doubt that filing of the certified copy of other decree along with memo of appeal is a necessary condition. In the present case, in spite of the fact that appellants were impliedly permitted to file the certified copy of the judgment after obtaining the same from the learned first appellate court, but the appellants have failed to apply for the certified copy of the decree in the learned first appellate court and have chosen to apply for the certified copy of the decree after the receipt of the record in this court. Therefore, the provisions of Limitation Act would be applicable and the appeal will be treated as if it has not been filed in time and is barred by limitation. It shall be proper here to further refer a decision of the D.B. of this court Smt. Dakha vs. Ram Chander (2), wherein the Hon’ble D.B. of this court has clearly held that the provisions of Rule 17 of the Courts Manual are mandatory in nature and the courts can only dispense with production of certified copy in certain circumstances, but complete, dispensation of the certified copy of the judgment is not within the powers of the court.

(11). In view of above discussion, we are of the opinion that the preliminary objection raised by the learned counsel for the respondents requires acceptance and it is hereby accepted. The answer to the point framed by us is accordingly.

(12). In view of foregoing discussions and our answer to the point framed by us, the appeal deserves to be dismissed and the same is hereby dismissed.

(13). Pronounced.


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