- (1.)This second appeal has been filed against an appellate decision of the Addl. Commissioner Jaipur dated 20.6.60. The plaintiff -respondent filed an application under sec. 180 of the Rajasthan Tenancy Act in the court of the sub -Divisional Officer Bharatpur. This was contested by the defendant - respondent and tried as a suit. After framing necessary issues and recording the evidence of the parties, the trial court decreed the respondents suit with costs on 5.2.60. An appeal was filed by the defendant before the Revenue Addl. Commissioner. It was heard for the first time on 20.6.60. On this date the lower appellate court found that the memorandum of appeal was not accompanied with a copy of the decree. On being pointed out, the counsel for the appellant made an application on the same date to the effect that he had originally applied both for a copy of the judgment and the decree of the trial court but he got only a copy of the judgment and when he brought this fact to the notice of the trial court, he was told that no such decree, was prepared and therefore a copy of the same was also not given. In support of this application, the counsel himself filed his own affidavit. The lower appellate court, however, without assigning any cogent reason for dis -crediting the application and the affidavit of the counsel and in the absence of the opposite party, held that in the absence of a copy of the decree there was no proper presentation of the appeal as provided in O. 41, R. 1 C.P.C., and therefore it could not be proceeded with and accordingly it was dismissed. In this second appeal, the contention of the learned counsel for the appellant is that he had made an application both for a copy of the judgment and decree but as the decree had not been prepared by the trial court, only a copy of the judgment was given. He had brought this fact to the notice of the lower appellate court by means of an application and an affidavit of the counsel who conducted the case in the trial court and he had also requested that in order to satisfy itself about the bonafide of the appellant, the file of the lower court may be sent for in which his original application for a copy of the decree was on record and further that he may be given time for obtaining the copy of the decree if it had now been prepared by the lower court. The argument was that in the circumstances the proper procedure to be followed by the lower appellate court was to have given the appellant time to obtain a copy of the decree, instead of rejecting the appeal on this preliminary ground. The learned counsel for the opposite party, however, urged that the provision of Order 41 Rule 1 C.P.C. are mandatory and a memorandum of appeal not accompanied by a copy of the judgment and decree is not a valid appeal irrespective of the fact whether the decree had been prepared in time by the court or not or that the appellant was under an erroneous impression that it had either not been prepared at all or that it was, at any rate, not prepared on the date when an application for obtaining a copy thereof was made to the court concerned.
(2.)The appellant filed before us a certified copy of the application which he had filed before the trial court for obtaining a copy of the judgement and the decree with prayer that in the circumstances explained by him in the affidavit, he may be given the benefit of sec. 5 of the Limitation Act and the lower appellate court be directed to re -hear the appeal. As a rule, it is absolutely essential that a memorandum of appeal should be accompanied by a copy of the judgment and decree appealed from. In the ordinary course if it is not so accompanied by a copy of the decree the appeal is not a valid appeal and deserves to be rejected. This is what Order 41, Rule 1 C.P.C. in so many words, provides. But this rule of law is not rigid and has been examined by the various High Courts in the context of the facts of each case, on the principle actus curiae neminem gravabit. In every suit which is either decreed or dismissed, it is the duty of the court deciding the case to prepare a decree in terms of the judgment if so provided under the provisions of the enactment under which the suit was tried. If for certain reasons it has omitted to do so there is no statutory provision requiring a party to ask a court to draw up a decree in pursuance of the judgment and no inference adverse to a party as to his right to appeal can be drawn from an omission on his part to draw a decree. This was a view held in AIR 1923 Bombay 23. Again in AIR 1919 Lahore 125 it was observed that Order 41 Rule 1 has no application to a case in which the original court has omitted to frame a decree. In such a case if the appeal is presented without a copy of the decree, the appellate court should adjourn the appeal until a copy of the decree is forthcoming. The same matter came up for determination again before the Bombay High Court in AIR 1957 Bombay, 59. This is a Division Bench decision and it was held that if for a mistake committed by the court below a decree was not formaly drawn up and the appellant was unable to produce a certified copy of the decree, the appellant should not be visited with the consequences of his appeal not being competent because he was unable to produce a certified copy of a decree. The drawing up of a decree was only a formal affair and the omission had not affected the rights of the parties either way. In RRD 1959 Page 164, while discussing the implications sec. 12(2) of the Limitation Act, the same view in a different context was held by the Board. In the present case it is clear beyond doubt that the appellant had filed an application for a copy of the judgment and decree before the trial court. He was only given a copy of the judgment and not of the decree. The affidavit of the counsel who represented the case in the trial court is also clear on the point that he brought this fact to the notice of the court but somehow neither the decree was prepared in or the copy of the same was ever given to the appellant before he actually filed the appeal. There is nothing on record to suggest that this affidavit was wrong or that there was inadvertence or culpable negligence on the part of the appellant in this behalf. He had also requested the lower appellate court to satisfy himself on this point and give him time to produce a copy of the decree. This was also not considered in a judicial manner. As observed in AIR 1919 Lahore 125, the court may in such cases allow an adjournment for getting a copy of the decree prepared and filing the same and where a copy of the decree is filed after the expiry of the period of limitation, the court has full jurisdiction to invoke sec. 5 of the Limitation Act. If we accept the statement of the learned counsel made at the bar, he had requested the lower appellate court to give him some time for obtaining a copy of the decree, the correctness of this statement has, of course, not been challenged either by means of an application or affidavit or even the statement of the party or the counsel in the course of arguments. In the circumstances, we are of the opinion that the learned lower court was not justified in rejecting the appeal. Accordingly we allow this appeal, set aside the order of the lower court and remand the case back to him with the direction to re -hear the appeal on merits after placing on record a copy of the decree in the light of the observations made above.
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