{"id":21890,"date":"1960-12-05T00:00:00","date_gmt":"1960-12-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagat-dhish-bhargava-vs-jawahar-lal-bhargava-others-on-5-december-1960"},"modified":"2018-10-18T04:44:20","modified_gmt":"2018-10-17T23:14:20","slug":"jagat-dhish-bhargava-vs-jawahar-lal-bhargava-others-on-5-december-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagat-dhish-bhargava-vs-jawahar-lal-bhargava-others-on-5-december-1960","title":{"rendered":"Jagat Dhish Bhargava vs Jawahar Lal Bhargava & Others on 5 December, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jagat Dhish Bhargava vs Jawahar Lal Bhargava & Others on 5 December, 1960<\/div>\n
Equivalent citations: 1961 AIR 832, \t\t 1961 SCR (2) 918<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nJAGAT DHISH BHARGAVA\n\n\tVs.\n\nRESPONDENT:\nJAWAHAR LAL BHARGAVA & OTHERS\n\nDATE OF JUDGMENT:\n05\/12\/1960\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n 1961 AIR  832\t\t  1961 SCR  (2) 918\n CITATOR INFO :\n F\t    1967 SC1470\t (5)\n RF\t    1972 SC 414\t (32)\n RF\t    1977 SC2319\t (10)\n D\t    1978 SC 537\t (4)\n R\t    1983 SC 786\t (9,20)\n RF\t    1992 SC 109\t (6)\n\n\nACT:\nAppeal--Decree\tnot Prepared--Appeal filed without  copy  of\ndecree--Competency of--Subsequently decree prepared and copy\nfiled--Limitation--Code of Civil Procedure, 1908(V of  1908)\n0.  41,\t r. 1--Indian Limitation Act, 1908 (IX of  1908)  s.\n12(2).\n\n\n\nHEADNOTE:\nThe  respondents  filed\t a  suit  for  specific\t performance\nagainst the appellant which was dismissed on March 12, 1954.\nOn  March  24  the respondents made  an\t application  for  a\ncertified  copy of the judgment and decree.  The decree\t was\nnot  drawn up and the respondents were supplied a  certified\ncopy of the judgment and the memo of costs.  The respondents\nfiled an appeal before the High Court without the  certified\ncopy  of the decree and only with the certified copy of\t the\njudgment  and  the memo of costs.  The appeal  was  admitted\nunder  0.  41, r. 11 Code of Civil Procedure on\t August\t 30,\n1954.\tOn December 23, 1958, the appellant served a  notice\non  the\t respondents  that  he\twould  raise  a\t preliminary\nobjection at the hearing that the appeal was incompetent  as\na certified copy of the decree was not filed as required  by\n0. 41, r. 1. On December 24, 1958, the respondents moved the\ntrial  Court  for drawing up of the decree,  but  since\t the\nrecord was in the High Court this could not be done.  At the\nhearing of the appeal, the appellant raised the\t preliminary\nobjection,  but the High Court passed an order\ton  December\n15,  1959,  allowing the respondents one  month's  time\t for\ngetting a decree drawn up and obtaining. a copy and directed\nthe  record  to be sent to the trial  Court.   Against\tthis\norder the appellant preferred an appeal to the Supreme Court\ncontending  that  the High Court was bound  to\tdismiss\t the\nappeal\tas it was manifestly incompetent under 0. 41, r.  1.\nSubsequently, on December 23, 1959, the respondents obtained\na certified copy of the decree and filed it before the\tHigh\nCourt the same day.  The appellant contended that the appeal\nwas  to\t be  deemed to be filed on this date  and  was\ttime\nbarred.\nHeld,  that  in\t the circumstances of this  case  the  order\npassed by the High Court was right.' There was no doubt that\n0. 41, r. 1  was  mandatory  and in the absence\t of  or\t the\ndecree the filing of\t the\tappeal\t  was\t incomplete,\ndefective  and incompetent.  The office of the\ttrial  Court\nwas  negligent in not drawing up a decree and the office  of\nthe  High  Court was also not as careful as it\tshould\thave\nbeen  in  examining the appeal and  these  have\t contributed\nsubstantially to the unfortunate position.  In such a  case,\nthe respondents deserved to be protected.  Besides the,\n919\nquestion had become academic and technical in view of subse-\nquent events.  The certified copy of the decree was filed on\nDecember 23, 1959, and even if the appeal was considered  to\nhave been filed on that date, it was within time.  Under  s.\n12(2) of the Limitation Act the respondents could treat\t the\ntime  taken  in\t the  drawing up of  the  decree  after\t the\napplication  for a certified copy thereof had been  made  as\npart  of the time taken in obtaining the certified  copy  of\nthe decree.\nTarabati  Koer v. Lala jagdeo Narain, (1911) 15 C.W.N.\t787,\nBani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal.\n104  (F.B.),  Gabriel  Christian  v.'Chandra  Mohan  Missir,\n(1936),\t I.L.R.\t 15 Pat. 284(F.B.),  Jayashankar  Mulshankar\nMehta  v. Mayabhai Lalbhai Shah, (1951) 54 B.L.R 11  (F.B.),\nGokul Prasad v. Kunwar Bahadur, (1935) I.L.R. 10.  Luck. 250\nand  Umda v. Rupchand, (1926) 98 I.C. 1057 (F.B.),  referred\nto.\nRodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3\tP.C.\n465, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil  Appeal No. 222 of 1960.
\nAppeal from the judgment and order dated December 15,  1959,
\nof  the Punjab High Court (Circuit Bench), Delhi, in  R.  F.
\nAppeal No. 77-D of 1954.\n<\/p>\n
G. S. Pathak and B. C. Misra, for the appellant.
\nMukat  Behari Lal Bhargava and J. P. Goyal, for\t respondents
\nNos. 1 to 7.\n<\/p>\n
1960.\tDecember 5. The Judgment of the Court was  delivered
\nby
\nGAJENDRAGADKAR,\t J.-The short question of law( which  arises
\nfor  decision  in, the present appeal by  special  leave  is
\nwhether\t the  appeal  preferred against\t the  appellant\t and
\nrespondents  8\tand  9\tin  the\t High  Court  of  Punjab  by
\nrespondents  2\tto  7 ‘was competent in law  or\t not.\tThis
\nquestion  arises unDer somewhat unusual\t circumstances.\t  It
\nappears\t that an agreement of sale of one third of  the\t one
\nfourth\tshare  in the property covered by the  document\t was
\nentered into between Gokal Dhish Bhargava and the  appellant
\nJagat Dhish Bhargava.  Gokal Dhish Bhargava sued the  appel-
\nlant  and  pro\tforms  respondents  8  and  9  for  specific
\nperformance  of the said agreement of sale in the  Court  of
\nthe Senior Civil Judge, New Delhi (Civil Suit No. 684\/128 of
\n1949\/50).  This suit was dismissed on
\n920<\/span>
\nMarch 12, 1954. , Pending decision in the trial court  Gokal
\nDhish  Bhargava\t (fled\tand his son  Jawahar  Lal  Bhargava,
\nrespondent  1  and Chunni Lal Bhargava were brought  on\t the
\nrecord\tas  legal  representatives.   After  the  suit\t was
\ndismissed and before the appeal in question was preferred in
\nthe   High  Court  Chunni  Lal\tBhargava   died;   thereupon
\nrespondents  2\tto 7, as his legal  representatives,  joined
\nrespondent 1 in preferring an appeal against the said decree
\nin the High Court of Punjab.  The memo of appeal along\twith
\nthe judgment dismissing the suit and the taxed bill of costs
\nendorsed  on the back of the last page of the  judgment\t was
\nfiled  in  the\tHigh  Court on July 29,\t 1954.\t It  is\t the
\ncompetence  of\tthis appeal that was questioned\t before\t the
\nHigh  Court  and  is in dispute before\tus  in\tthe  present
\nappeal.\n<\/p>\n
The  record shows that on March 24,1954, an application\t was
\nmade  by  respondents  2  to  7\t (who  will  be\t called\t the
\nrespondents hereafter) for a certified copy of the  judgment
\nand decree passed in the said suit for specific performance.
\nA  certified copy of the judgment and the bill of costs\t was
\nsupplied to them but the decree had not been drawn up and no
\ncopy  of the decree was therefore supplied to them.  In\t the
\nresult\tthe appeal was filed without the certified  copy  of
\nthe decree and only with the certified copy of the  judgment
\nand  the  bill of costs.  On August 2, 1954,  the  Assistant
\nRegistrar  of  the High Court returned the  memo  of  appeal
\nfiled by the respondents to their counsel and pointed out to
\nhim  that’  since no copy of the decree had been  filed\t the
\npresentation  of  the appeal was defective  and\t the  defect
\nneeded to be rectified.\t Thereafter, on August 16, 1954, the
\nrespondents’ counsel refiled the appeal with an\t endorsement
\nthat  a memo of costs alone had been prepared by  the  trial
\ncourt  and  no decree had been drawn up, and so\t the  appeal
\nshould\tbe  held  to be\t properly  filed.   Apparently\tthis
\nexplanation  was treated’ as satisfactory by the  office  of
\nthe High Court and the appeal was registered as No. 77-D  of
\n1954.\n<\/p>\n
In due course the appeal was placed for preliminary  hearing
\nunder 0. 41, r. 11 of the Code of Civil
\n921<\/span>
\nProcedure  before  Dulat, J. who admitted it on\t August\t 30,
\n1954.\tNotice of the appeal was accordingly served  on\t the
\nappellant  and the pro forma respondents.   Ultimately\twhen
\nthe  appeal  became ready for hearing it was put up  on\t the
\nBoard of the Circuit Bench of the High Court to be heard  on
\nDecember  26,  1958.  Meanwhile on December 23.,  1958,\t the
\nappellant  served  a  notice  on  the  respondents’  counsel
\nintimating  to him that he proposed to raise  a\t preliminary
\nobjection against the competence of the appeal on the ground
\nthat the decree under appeal had not been filed as  required
\nunder  0.  41, r. 1 along with the memo of  appeal  and\t the
\ncertified copy of the judgment.\t Next day, that is to say on
\nDecember 24, 1958, the respondents moved the trial Court for
\ndrawing\t up of the decree, but since the record had  in\t the
\nmeantime  been sent by the trial Court to the High Court  no
\ndecree\tcould  be drawn up by the trial Court,\tand  so\t the
\nmotion\tbecame\tinfructuous.  The appeal, however,  did\t not
\nreach  hearing on December 26, 1958.  On December 29,  1958,
\nthe  respondents moved the Court that the appeal  should  be
\ndeclared to be maintainable as the memo of costs which alone
\nhad  been  prepared by the trial Court read along  with\t the
\nconcluding paragraph of the judgment may be held to  satisfy
\nthe  requirements  of the decree; in  the  alternative\tthey
\nprayed that the record of the suit in the trial Court should
\nbe  sent for to enable them to get a decree prepared with  a
\nview  to  file the same in the High Court along\t with  their
\nappeal.\t Bishan Narain, J., before whom this application was
\ntaken  out for orders, directed that it may be heard by\t the
\nBench which would hear the appeal.\n<\/p>\n
Eventually the appeal came on for hearing before Falshaw and
\nChopra,\t JJ. on De ember 8, 1959.  At the said\thearing\t the
\nappellant raised a preliminary objection that the appeal was
\nnot  competent having regard to the mandatory provisions  of\n<\/p>\n
0.  41, r. 1, and urged that the appeal should be  dismissed
\nas  incompetent.  This preliminary objection  was,  however,
\nnot  upheld  by the High Court, and it was  held  that\t“the
\nproper course to follow was to allow the respondents a
\n922<\/span>
\nmonth’s time for the purpose of getting a decree drawn up in
\nthe  proper  form by the lower Court and  obtaining  a\tcopy
\nthereof “. Accordingly the record which had in the meanwhile
\nbeen  received\tby  the\t High Court  after  the\t appeal\t was
\nadmitted under 0. 41, r. 11  was ordered to be sent back  to
\nthe  lower  Court without delay.  It is against\t this  order
\nwhich  was  passed by the High Court on December  15,  1959,
\nthat the present appeal by special leave has been filed.  On
\nbehalf of the appellant Mr. Pathak contends that the  appeal
\nfiled  before  the  High Court was  plainly  and  manifestly
\nincompetent,  and  so  the High Court was in  error  in\t not
\ndismissing it on that ground.\n<\/p>\n
The  position of law under 0. 41, r. 1 is absolutely  clear.
\nUnder the said rule every appeal has to be preferred in\t the
\nform of a memorandum signed by the appellant or his  pleader
\nand presented to the Court or to such officer as it appoints
\nin  that behalf, and has to be accompanied by a copy of\t the
\ndecree\tappealed  from, and of the judgment on which  it  is
\nfounded.   Rule 1 empowers the appellate Court\tto  dispense
\nwith the filing of the judgment but there is no jurisdiction
\nin  the appellate Court to dispense with the filing  of\t the
\ndecree.\t Where the decree consists of different distinct and
\nseverable directions enforceable against the same or several
\ndefendants the Court may permit the filing of such  portions
\nof  the decree as are the subject matter of the\t appeal\t but
\nthat  is  a problem with which we are not concerned  in\t the
\npresent case.  In law the appeal is not so much against\t the
\njudgment  as against the decree; that is why Article 156  of
\nthe  Limitation Act prescribes a period of 90 days for\tsuch
\nappeals\t and provides that the period commences to run\tfrom
\nthe date of the decree under appeal.  Therefore there is  no
\ndoubt that the requirements that the decree should be  filed
\nalong with the memorandum of appeal is mandatory, and in the
\nabsence\t of  the decree the filing of the  appeal  would  be
\nincomplete, defective and incompetent.\n<\/p>\n
That, however, cannot finally dispose of the point raised by
\nthe   appellant\t before\t us.   In  the\tpresent\t  case\t the
\nrespondents had applied for a certified copy of
\n923<\/span>
\nthe  judgment  as well as the decree in the trial  Court  on
\nMarch 24, 1954, and they were not given a copy of the decree
\nfor the simple reason that no decree was drawn up; what they
\nwere  given  was a copy of the judgment and  taxed  bill  of
\ncosts endorsed on the back of the last page of the judgment.
\nThese documents\t they filed along with their memo of appeal;
\nbut  that would not affect the mandatory requirement  of  0.
\n41,  r. 1. In considering the effect of this defect  in\t the
\npresentation of the appeal we must bear in mind the rules of
\nprocedure  in regard to the drawing up of the  decree.\t The
\nposition in that behalf is absolutely clear.  Section 33  of
\nthe  Code of Civil Procedure requires that the Court,  after
\nthe  case has been heard, shall pronounce judgment,  and  on
\nsuch  judgment\ta  decree  shall follow.   Order  20,  r.  3
\nprovides,  inter alia, that the judgment shall be dated\t and
\nsigned\tby  the\t judge\tin the open Court  at  the  time  of
\npronouncing it, and under r. 4, sub-r. (2) a judgment has to
\ncontain\t a  concise statement of the case,  the\t points\t for
\ndetermination, the decision thereon and the reasons for such
\ndecision.   Rule  6 of the same Order  prescribes  the\tcon.
\ntents  of  the decree.\tIt provides that  the  decree  shall
\nagree  with the judgment and shall contain  the\t particulars
\ntherein\t specified.   Under  r. 7 it is\t provided  that\t the
\ndecree\tshall bear the date, the day on which  the  judgment
\nwas  pronounced,  and  it directs that when  the  judge\t has
\nsatisfied  himself  that  the decree has been  drawn  up  in
\naccordance  with the judgment he shall sign the decree.\t  It
\nis,  therefore, clear that the drawing up of the  decree  in
\nthe  present  case  was the function and  the  duty  of\t the
\noffice,\t and it was obligatory on the judge to\texamine\t the
\ndecree\twhen  drawn up, and if satisfied that  it  has\tbeen
\nproperly  drawn up to sign it.\tExcept in places  where\t the
\ndual  system prevails the litigant or his lawyer’  does\t not
\nplay any material or important part in the drawing up of the
\ndecree.\t In fact the process of drawing up of the’ decree is
\nbeyond the litigant’s control.\tTherefore, there is no doubt
\nwhatever that in failing to draw up a decree in the  present
\nsuit  the  office of the trial Court was  negligent  in\t the
\ndischarge of its duties, and
\n924<\/span>
\nthe  said  negligence was not even noticed  by\tthe  learned
\ntrial judge himself.\n<\/p>\n
Unfortunately,\twhen  the appeal was presented in  the\tHigh
\nCourt, even the office of the High Court was not as  careful
\nin examining the appeal as it should ,,have been, and as  we
\nhave  already indicated the appeal passed through the  stage
\nof  admission under 0. 41, r. 11 without the defect  in\t the
\nappeal being brought to the notice of the learned judge\t who
\nadmitted it.  Thus it is quite clear on the record that\t the
\nrespondents had applied for a certified copy of the judgment
\nand  the decree, and when they were given only\ta  certified
\ncopy  of the judgment and the bill of costs they  filed\t the
\nsame  along with the memo of appeal in the bona fide  belief
\nthat  the said documents would meet the requirements  of  0.
\n41,  r.\t 1. It is true that before the appeal  came  on\t for
\nactual\thearing\t before the High Court\tthe  appellant\tgave
\nnotice\tto  the respondents about his intention to  raise  a
\npreliminary objection that the appeal had not been  properly
\nfiled; but, as we have already pointed out, the attempt made
\nby  the respondents to move the trial Court to draw  up\t the
\ndecree\tproved\tinfructuous and ultimately  the\t High  Court
\nthought that in.fairness to the respondents they ought to be
\nallowed time to obtain the certified copy of the decree\t and
\nfile  it before it; and so the High Court passed  the  order
\nunder  appeal.\t The appellant contends that this  order  is
\nmanifestly erroneous in law; according to him the only order
\nwhich  could and should have been passed was to dismiss\t the
\nappeal as incompetent under 0. 41, r.1.\n<\/p>\n
The problem thus posed by the appellant for our decision has
\nnow  become academic because subsequent to the\tdecision  of
\nthe  High  Court under appeal the respondents have  in\tfact
\nobtained  Po  certified copy of the decree on  December\t 23,
\n1959,  and have filed it in the High Court on the same\tday.
\nThis fact immediately raises the question as to whether\t the
\nappeal\twhich  has admittedly been completely  and  properly
\nfiled  on  December  23, 1959, was in time or  not.   If  it
\nappears that on the date when the decree was thus filed the
\n925<\/span>
\npresentation  of the appeal was in time then  the  objection
\nraised\tby  the\t appellant  against  the  propriety  or\t the
\ncorrectness of the High Court’s order under appeal would  be
\npurely technical and academic.\n<\/p>\n
The answer to the question as to whether the presentation of
\nthe  appeal  on December 23, 1959, is in time or  not  would
\ndepend\tupon  the construction of s. 12, sub-s. (2)  of\t the
\nLimitation  Act.   We have already noticed that\t the  period
\nprescribed for filing the present appeal is 90 days from the
\ndate of the decree.  Section 12, sub-s. (2) provides,  inter
\nalia,  that in computing the period of limitation “the\ttime
\nrequisite  for\tobtaining  a copy of  the  decree  shall  be
\nexcluded”.  What then is the time which can be\tlegitimately
\ndeemed\tto  have been taken for obtaining the  copy  of\t the
\ndecree in the present case?  Where a decree is not drawn  up
\nimmediately  or\t soon after a judgment\tis  pronounced,\t two
\ntypes  of cases may arise.  A litigant feeling aggrieved  by
\nthe  decision  may  apply  for the  certified  copy  of\t the
\njudgment and decree before the decree is drawn up, or he may
\napply  for  the said decree after it is drawn  up.   In\t the
\nformer\tcase, where the litigant has done all that he  could
\nand  has  made\ta  proper  application\tfor  obtaining\t the
\nnecessary  copies,  the\t time requisite\t for  obtaining\t the
\ncopies must necessarily include not only the time taken\t for
\nthe  actual supply of the certified copy of the\t decree\t but
\nalso  for  the drawing up of the decree\t itself.   In  other
\nwords, the time taken by the office or the Court in  drawing
\nup  a decree after a litigant has applied for its  certified
\ncopy  on  judgment being pronounced, would be treated  as  a
\npart  of the time taken for obtaining the certified copy  of
\nthe  said  decree.  Mr. Pathak has fairly conceded  that  on
\nthis point there is a consensus of judicial opinion, and  in
\nview  of  the formidable and imposing array  of\t authorities
\nagainst\t him  he  did not raise\t any  contention  about\t the
\nvalidity  of  the  view\t take in  all  those  cases.  (Vide:
\nTarabati Koer v. Lala Jagdeo Narain (1); Bani Madhub  Mitter
\nv. Mathungini Dassi & Ors. (Full Bench) (2);Gabriel
\nChristian v.\n<\/p>\n
(1) (1911) 15 C.W.N. 787.\n<\/p>\n
(2) (1886) I.L.R. 13 Cal- 104.\n<\/p>\n
926<\/span><\/p>\n
Chandra\t  Mohan\t  Missir  (Full\t Bench)\t  (1);\t Jayashankar
\nMulshankar Mehta v. Mayabhai Lalbhai Shah (Full Bench)\t(2);
\nGokul  Prasad  v.  Kunwar Bahadur &  Ors.(3);  and  Umda  v.
\nRupchand & Ors. (Nagpur Full Bench) (1)).\n<\/p>\n
There  is, however, a sharp difference of opinion in  regard
\nto  cases where an application for a certified copy  of\t the
\ndecree\tis  made  after the said decree\t is  drawn  up.\t  In
\ndealing\t with  such cases Courts have differed\tas  to\twhat
\nwould  be the period requisite for obtaining  the  certified
\ncopy  of  the decree.  The Bombay, Calcutta and\t Patna\tHigh
\nCourts, appear to have held that the period taken in drawing
\nup  of\tthe decree would be part of  the  requisite  period,
\nwhile  other High Courts have taken a contrary view.  It  is
\nsignificant  that though the High Courts have thus  differed
\non  this point, in every case an attempt is judicially\tmade
\nto do justice between the parties.  With that aspect of\t the
\nproblem,  however,  we\tare not\t concerned  in\tthe  present
\nappeal.\n<\/p>\n
The position, therefore, is that when the certified copy  of
\nthe decree was filed by the respondents in the High Court on
\nDecember 23, 1969, the whole of the period between the\tdate
\nof the application for the certified copy and the date\twhen
\nthe  decree  was actually signed would have to\tbe  excluded
\nunder s. 12, sub-s. (2).  Inevitably the presentation of the
\nappeal\ton December 23, 1959 would be in time.\tIt  is\ttrue
\nthat  more  than  five years have  thus\t elapsed  after\t the
\npronouncement  of the judgment but for this long  delay\t and
\nlapse  of time the respondents are not much to\tblame.\t The
\nfailure of the trial Court to draw up the decree as well  as
\nthe failure of the relevant department in the High Court  to
\nexamine the defect in the presentation of the appeal at\t the
\ninitial stage have contributed substantially to the  present
\nunfortunate position.  In such a case there can be no  doubt
\nthat  the  litigant  deserves to be  protected\tagainst\t the
\ndefault\t committed or negligence shown by the Court  or\t its
\nofficers  in the discharge of their duties.  As observed  by
\nCairnes, L. C. in Rodger v. Comptoir
\n(1) (1936) I.L.R. 15 Pat. 284.\n<\/p>\n
(2) (1951) 54 B.L.R. II.\n<\/p>\n
(3) (1935) I.L.R. 10 Lucknow 250.\n<\/p>\n
(4) (1926) 98 I.C. 1057.\n<\/p>\n
927<\/span><\/p>\n
d’Escompte  de Paris (1) as early as 1871 “one of the  first
\nand  highest duties of all Courts is to take care  that\t the
\nact of the Court does no injury to any of the suitors”; that
\nis  why we think that in view of the subsequent event  which
\nhas  happened  in  this\t case, namely,\tthe  filing  of\t the
\ncertified  copy\t of  the  decree in  the,  High\t Court,\t the
\nquestion  raised by the appellant has( become technical\t and
\nacademic.\n<\/p>\n
Faced with this position Mr. Pathak attempted to argue\tthat
\nthe  application made by the respondents on March 24,  1954,
\nwas  not really an application for a certified copy  of\t the
\ndecree;\t he  contendea that it was an  application  for\t the
\ncertified copy of the judgment and the bill of costs.\tThis
\nargument  is  wholly  untenable.   The\twords  used  in\t the
\napplication  clearly show that it was an application  for  a
\ncertified  copy\t of  the judgment as well  as  the  decretal
\norder, and as subsequent events have shown, a certified copy
\nof the decree was ultimately supplied to the respondents in
\npursuance of this application.\n<\/p>\n
Then  it was argued that the respondents should\t have  moved
\nthe  trial Court for the drawing up of a decree as  soon  as
\nthey  found  that  no decree a been drawn  up.\t It  may  be
\nassumed that the respondents might have adopted this course;
\nbut where the dual system does not exist it would be idle to
\ncontend\t that  it  is a part of the duty of  a\tlitigant  to
\nremind the Court or its office about its obligation to\tdraw
\nup  a decree after the judgment is pronounced in  any  suit.
\nIt  may\t be  that decrees when drawn up\t are  shown  to\t the
\nlawyers\t of the parties; but essentially drawing up  of\t the
\ndecree\tis the function of the Court and its office, and  it
\nwould be unreasonable to penalise a party for the default of
\nthe  office  by suggesting that it was\tnecessary  that\t the
\nparty should have moved the Court for the drawing up of\t the
\ndecree.\t Therefore, we are not satisfied that tie  appellant
\nis  justified in attributing to the respondents any  default
\nfor  which  the penalty of dismissing their  appeal  can  be
\nlegitimately imposed on them.  The result is that the appeal
\npreferred by the respondents on December 23,
\n(1)  (1871) L.R. 3 P.C. 465, 475.\n<\/p>\n
928<\/span><\/p>\n
1959, is proper and in time and it can now be dealt with  in
\naccordance  with law.  It is true that in the  circumstances
\nover  which  the respondents had no control  the  appeal  in
\nquestion  has already been admitted under 0. 41, r. 11,\t and
\nas a result of the decision under    appeal  it may not have
\nto  go through that process again.  Dulat, J. who heard\t the
\nappeal\tfor admission was satisfied that it deserved  to  be
\nadmitted  and we do not think it necessary to  require\tthat
\nthe  present appeal should go through the formality  of\t the
\nprocedure prescribed by 0. 41, r. 11 once again.  This posi-
\ntion  is no doubt, unusual, but in the circumstances of\t the
\ncase  it is impossible to say that the order passed  by\t the
\nHigh Court is not fair and just.\n<\/p>\n
Let  us\t then  consider the technical point  raised  by\t the
\nappellant  challenging the validity or the propriety of\t the
\norder  under  appeal.  The argument is that 0. 41, r.  1  is
\nmandatory,  and\t as soon as it is shown that an\t appeal\t has
\nbeen filed with a memorandum of appeal accompanied only with
\na  certified  copy  of\tthe  judgment  the  appeal  must  be
\ndismissed  as being incompetent, the relevant provisions  of\n<\/p>\n
0.  41\twith regard to the filing of the decree being  of  a
\nmandatory character.  It would be difficult to accede to the
\nproposition  thus advanced in a broad and general form.\t  If
\nat  the\t time  when the appeal is  preferred  a\t decree\t has
\nalready\t been drawn up by the trial Court and the  appellant
\nhas  not  applied for it in time it would be  a\t clear\tcase
\nwhere  the  appeal  would be incompetent and  a\t penalty  of
\ndismissal would be justified.  The position would,  however,
\nbe substantially different if at the time when the appeal is
\npresented  before the appellate Court a decree in  fact\t had
\nnot  been drawn up by the trial Court; in such a case if  an
\napplication has been made by the appellant for, a  certified
\ncopy  of the decree, then all that can be said\tagainst\t the
\nappeal\tpreferred  by him is that the  appeal  is  premature
\nsince  a decree has not been drawn up, and it is the  decree
\nagainst which an appeal lies.  In such a case, if the office
\nof  the\t High  Court  examines\tthe  appeal  carefully\t and
\ndiscovery  the\tdefect\tthe appeal may be  returned  to\t the
\nappellant for presentation
\n929<\/span>
\nwith the certified copy of the decree after it is  obtained.
\nIn  the\t case  like the present, if the\t appeal\t has  passed
\nthrough\t the  stage of admission through  oversight  of\t the
\noffice,\t then  the only fair and rational  course  to  adopt
\nwould  be  to  adjourn\tthe hearing of\tthe  appeal  with  a
\ndirection  that the appellant should produce  the  certified
\ncopy  of  the decree as soon as it is supplied to  him.\t  In
\nsuch  a\t case  it would be open to the High  Court,  and  we
\napprehend  it would be its duty, to direct  the\t subordinate
\nCourt to draw up the decree forthwith without any delay.  On
\nthe  other  hand,  if  a decree has been  drawn\t up  and  an
\napplication  for  its certified copy has been  made  by\t the
\nappellant  after the decree was drawn up, the office of\t the
\nappellate Court should return the appeal to the appellant as
\ndefective, and when the decree is filed by him the  question
\nof limitation may be examined on the merits.  It is  obvious
\nthat the complications in the present case have arisen as  a
\nresult\tof  two factors; the failure of the trial  Court  to
\ndraw up the decree as required by the Code, and the  failure
\nof the office in the High Court to notice the defect and  to
\ntake  appropriate  action at the initial  stage\t before\t the
\nappeal\twas  placed for admission under 0. 41,\tr.  11.\t  It
\nwould  thus be clear that no hard and fast ‘rule of  general
\napplicability  can  be laid down for  dealing  with  appeals
\ndefectively filed under 0. 41, r. 1. Appropriate orders will
\nhave to be passed having regard to the circumstances of each
\ncase,  but  the\t most important step to\t take  in  cases  of
\ndefective  presentation\t of appeals is that they  should  be
\ncarefully  scrutinized at the initial stage soon after\tthey
\nare filed and the appellant required to remedy the  defects.
\nTherefore, in our opinion, the appellant is not justified in
\nchallenging  the  propriety  or the validity  of  the  order
\npassed\tby  the High Court because in the  circumstances  to
\nwhich  we have already adverted the said order is  obviously
\nfair  and  just.  The High Court realised that it  would  be
\nvery unfair to penalise the party for the mistake  committed
\nby  the trial Court and its own office, and so it has  given
\ntime to the respondents to
\n930<\/span>
\napply  for a certified copy of the decree and  then  proceed
\nwith the appeal.\n<\/p>\n
In this connection our attention has been drawn to the\tfact
\nthat   in  the\tPunjab\tHigh  Court  two   conflicting\t and
\ninconsistent  views  appear  to\t have  been  taken  in\t its
\nreported  decisions.  Dealing with appeals filed with-out  a
\ncertified copy of the decree some decisions have   dismissed
\nthe  appeals  as  defective, and have given  effect  to\t the
\nmandatory words in 0. 41, r. 1, without presumably examining
\nthe question as to whether the failure of the trial Court to
\ndraw  up the decree would have any bearing or  relevance  on
\nthe point or not. (Vide: Gela Ram v. Ganga Ram(1); Municipal
\nCommittee,  Chiniot  v. Bashi Ram (2); Mubarak Ali  Shah  v.
\nSecretary  of State (3); Nur Din v. Secretary of  State\t (4)
\nHakam Beg v. Rahim Shah (5); Fazal Karim v. Des Raj (6); and
\nBanwari\t Lal Varma v. Amrit Sagar Gupta (7).  On  the  other
\nhand  it has in some cases been held that it would  be\tfair
\nand just that the hearing of the appeal should be  adjourned
\nto  enable the appellant to obtain a certified copy  of\t the
\ndecree\tand  produce it before the  appellate  Court  (Vide:
\nManoharlal  v. Nanak Chand (8); Mt.  Jeewani v.\t Mt.   Misri
\n(9);  and,  Sher Muhammad v. Muhammad Khan (10).   It  would
\nobviously  have\t been better if this  conflict\tof  judicial
\nopinion in the reported decisions of the High Court had been
\nresolved  by  a Full Bench of the said High Court  but\tthat
\ndoes  not appear to have been done so far.  However,  as  we
\nhave  indicated,  the question about the competence  of\t the
\nappeal\thas to be judged in each case on its own  facts\t and
\nappropriate orders must be passed at the initial stage\tsoon
\nafter  the appeal is presented in the appellate\t Court.\t  If
\nany disputed question of limitation arises it may have to go
\nbefore the Court for judicial decision.\n<\/p>\n
In  the result the order passed by the High Court is  right.
\nHaving regard to the fact that the decree
\n(1)  A.I.R. (1920) 1 Lah. 223
\n(3)  A.I.R. (1925) Lah. 438.\n<\/p>\n
(5)  A I.R. (1927) Lah. 912.\n<\/p>\n
(7)  A.I.R. (1940) East Punj. 400.\n<\/p>\n
(9)  A.I.R. (1919) Lah. 125.\n<\/p>\n
(2)  A.I.R (1922) Lah. 170.\n<\/p>\n
(4)  A. I.R. (1927) Lah. 49.\n<\/p>\n
(6)  35 Punj.  L.R. 471.\n<\/p>\n
(8)  A.I.R. (1919) Lah. 53.\n<\/p>\n
(10) A.I.R. (1924) Lah. 352.\n<\/p>\n
931<\/span><\/p>\n
under  appeal  has  already been filed\tby  the\t respondents
\nbefore\tthe High Court on December 23, 1959, the High  Court
\nshould now proceed to hear the appeal on the merits and deal
\nwith  it  in accordance with law.  In the  circumstances  of
\nthis case we make no order as to costs.\n<\/p>\n
\t\t\t\t\t Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jagat Dhish Bhargava vs Jawahar Lal Bhargava & Others on 5 December, 1960 Equivalent citations: 1961 AIR 832, 1961 SCR (2) 918 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. PETITIONER: JAGAT DHISH BHARGAVA Vs. RESPONDENT: JAWAHAR LAL BHARGAVA & OTHERS DATE OF JUDGMENT: 05\/12\/1960 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-21890","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJagat Dhish Bhargava vs Jawahar Lal Bhargava & Others on 5 December, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagat-dhish-bhargava-vs-jawahar-lal-bhargava-others-on-5-december-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagat Dhish Bhargava vs Jawahar Lal Bhargava & Others on 5 December, 1960 - 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