SARAT CHANDRA NAG Vs. RATI KANTA POLLEY

JUDGEMENT

(1.) The defendants are the members of an undivided family who possessed a dwelling house in which they resided. The plaintiff, who is a stranger to the family, acquired a share in this dwelling house and then brought this suit for partition. A decree for partition was made. Defendant 1 appealed from that decree and although there were other grounds taken in the memorandum of appeal the only question canvassed related to the right which defendant 1 claimed by virtue of the provisions of Section 4, Partition Act. Defendant 1 pointed out that the dwelling house belonged to an undivided family and that the plaintiff who was not a member of the family had acquired a share in that dwelling house. He contended that he was entitled as a member of the family to buy the share of the plaintiff. The plaintiff resisted the appeal on certain grounds of which two only fall for consideration in this Court. He contended first that the appeal had been filed without a copy of the judgment of the trial Court and that therefore the appeal was incompetent. Secondly, he contended that the appeal was barred by limitation. The learned Additional District Judge held against the plaintiff-respondent on both the points and allowed the appeal. The case was remanded to the trial Court for taking action under Section 4, Partition Act. Against this decision the plaintiff appeals. The same two points are taken in this Court. I shall take up for consideration first the question whether the appeal before the Additional District Judge was incompetent by reason of the fact that no copy of the judgment of the trial Court had been filed with the memorandum of appeal. The judgment undoubtedly has not been filed. The point for consideration is whether this renders the appeal incompetent. Order 41, Rule 1, Civil P.C., is as follows: Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.

(2.) It is clear from the provisions of this rule that an appellant must file with his memorandum of appeal the decree and ordinarily also the judgment on which the decree is founded. As regards the judgment, the Court may, in a fit case, dispense with the filing of it, but with respect to the filing of the decree the Court has no such power. It is argued on behalf of the appellant that as there has been no dispensation given by the Court in this case, the failure to file the judgment with the memorandum of appeal renders the appeal incompetent. It would be better to determine first the facts and then consider the application of the law on the point. Did the Court dispense with the filing of the judgment and if so when was this dispensation given? There is no written order dispensing with the judgment, nor is there a very definite finding of the lower Appellate Court on this point. The learned Judge dealing with the provisions of Order 41, Rule 1, Civil P.C., says this: There is a provision then that the Appellate Court can dispense with the filing of the copy, and, though no specific order was passed on the subject it may be deemed in the circumstances to have so dispensed with the filing.

(3.) The appellant contends that this is not a finding that dispensation had been granted. On behalf of the respondent the argument is that it should be presumed that the Court acted legally and that it dispensed with the filing of the judgment. The principle "omnia prasumuntur rite esse acta" is relied upon. In my opinion in the circumstances of this case I think that I would be right in presuming that dispensation was given at the time the appeal was filed. There can be no doubt that a reference of the judgment of the trial Court was entirely unnecessary for the determination of the question involved under Section 4, Partition Act. The appellant wanted merely to exercise his right of purchasing the share acquired by a stranger to the family. This right was not asserted or refused in the Court of first instance and the judgment of the trial Court which did not deal with this question was not required for consideration by the Appellate Court. No Court in these circumstances would refuse to dispense with the [filing of the judgment. Order 41, Rule 1 does not say that the Court must record an order dispensing with the judgment. The absence) of a recorded order does not therefore necessarily show that no order was passed. In view of the principle "omnia prasumuntur rite esse acta" and in view of the fact that dispensation would most certainly be granted in a case of this description, I hold that the Court did grant dispensation at the time of admitting the appeal. In this view it is unnecessary for me to deal with the different cases which were placed before me by either side on this point. The appeal in the Court below was not incompetent by reason of the fact that the judgment did not accompany the memorandum of appeal.