S.R. Misra, J. - (1.) IN , this second appeal, the report of the Stamp Reporter is that in view of late filing of the judgments of the Trial Court, the appeal has become time barred, by 36 days; and in this connection, he has placed reliance in Bhairon Ghulam v. Ram Autar Singh : AIR 1921 All 23. This, was a full Bench decision of this Court.
(2.) IT is noteworthy that the aforesaid Full Bench, while deciding the matter, considered Chapter 3 Rule 2 of the Rules made by the Allahabad High Court and Order 41 Rule 1, as amended by the Allahabad High Court. Chapter 3 Rule 2 as it was on 31st January, 1920, and, amendments incorporated till 1930, in the 'Rules of the High Court of Judicature at Allahabad, reads as under: No memorandum of appeal front an appellate decree or from any order shall be presented unless accompanied by a copy of the decree or order appealed against, a copy of the judgment upon which such decree or order was founded and, where it exists a copy of the judgment of the Court of first instance. In all cases in which either or both of the judgments abovementioned is or are not in English, the memorandum of appeal shall also be accompanied By a translation in the English language of such judgment or judgments made by a translator on the establishment of a civil Court or certified as correct by an authorised translator of the High Court. Provided that a Judge may for good cause shown, grant time for the filing or presentation of such translation, and in such case the appeal shall not be finally admitted unless within such time the translation be filed or presentation to a Judge. The aforesaid 'Rules of the High Court of Judicature at Allahabad' was amended and was renamed as 'The Allahabad High Court Rules, 1952. Chapter IX deals with appeals and applications. Rule 8 of Chapter IX provides that, each document must accompany memorandum of appeal or revision application. It reads as tinder: 8. Documents to accompany memorandum of appeal revision application: Each memorandum of appeal or application for revision shall be accompanied by: (a) a copy of the decree or formal order against which the appeal or application is directed ; (b) a copy of the judgment upon which such decree or formal order is founded ; (c) a copy of the judgment of the Court of first instance where the appeal or application is directed against an appellate or a revisional decree or order ; (d) in the case of an appeal under Section 6 -A, Court Fees Act, one extra copy of each of the plaint the order appealed against and the memorandum of appeal; and where the appeal is against an order directing payment of Court fee on a written statement, one copy also of the written statement. Such copies shall be certified to be true either by the Appellant or his Counsel or recognised agent: (e) in the case of a 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 Limitation Act, 1963; (f) in the case of an appeal from an order under Rule 1 of Order XLIII of the Code or revision from an interlocutory order, copies of all other papers upon which the Appellant or the applicant, as the case may be, relies ; (g) in the case of a first appeal from order, where such an appeal is to be heard by a Bench of two Judges, an extra copy of the order appealed against duly certified to be correct by the Appellant or his Counsel, as the case may be. Provided that the Judge 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) or any paper under Clause (f) or an extra copy of the order under Clause (g).
(3.) A perusal of the judgment in Bhairon Ghulam's case (supra) and rule. 2 of Chapter III of the then High Court Rule makes it clear that there was no discretion left with the Court if the certified copy of the judgments of the Courts below are not on record. However the aforesaid 'Proviso' to Rule 8 of Chapter IX of the Allahabad High Court Rules, 1952 empowers a Judge to dispense with a copy of the formal order, provided sufficient cause has been made out. Thus, if the Court is satisfied that there is sufficient ground for dispensing with the copy of judgment, the appeal may be entertained and filing of judgment may be disposed with.;