- (1.) Sri Navneet Mishra, learned counsel for the appellant submits that he has approached the office to deposit the requisite fee but he was informed that unless Court passed some order no steps can be taken for summoning of record. In pursuance of order passed by this Court on 20.11.2014 office has submitted a report on 22.11.2014 stating that the record may be summoned only after deposition of requisite fee.
(2.) To resolve the controversy in hand it is necessary to make a perusal of Rules 1, 2 and 5 of Chapter XII of Allahabad High Court Rules, 1952 which read as under: Rule 1. Issue of notice and requisition for record.--Where an order has been made directing notice of an appeal, revision or reference to issue the office shall take immediate steps to cause notice thereof to be served on such persons as are indicated in Rule 9 and shall also give notice thereof to the Court from whose decree or order the appeal or revision has been presented or by which the reference has been made. The office shall, not directing otherwise, also send a requisition to such Court asking it to transmit within ten days of the receipt of such requisition all material papers in the case or if so directed, a part thereof unless such record has already been received. Provided that in second appeal an appeal from an order or revision papers need not be summoned unless directed otherwise or until the case is likely to be listed before the Court for hearing. Provided further that in an appeal from order or revision directed against an interlocutory order, the record shall not be summoned unless the Court directs otherwise. In such cases, the parties may file an affidavit annexing to it copies of documents and/or evidence on which they wish to rely at the hearing. A notice of the receipt of the record in every case, except a First Appeal to which Rule 7, Chapter XIII of these rules applies, shall be exhibited on the notice board as soon after its receipt as possible. Provided further that in case any ad interim stay order has been passed by the Court on an application such stay order shall be attached with the notice to the opposite party. Rule 2. When record not to be requisitioned at once.--When a record or a portion thereof is required from a Subordinate Court in an appeal or revision from an interlocutory order while proceedings in the case are pending in that Court, it shall not be sent for at once and only information of the fact that all material paper in the case would be sent for when actually required shall be sent and that Court shall submit the papers immediately on receipt of intimation that the appeal or revision is ready for hearing: Provided that the papers shall not be summoned unless specially directed by the Court: Provided further that when a record or a portion thereof has been summoned at the special request of a party or otherwise during the pendency of such appeal or revision for disposing of any interlocutory matter, it shall be sent back to the Court concerned as soon as possible and recalled only when the appeal or revision is ready for hearing. A case shall not ordinarily be listed for hearing before the expiry of two weeks after the receipt of the record under this or the next preceding Rule. Rule 5. No party entitled to summon record without payment of requisite cost.-- Except as provided in Rule 1 and 2, no record shall be summoned from another court at the instance of a party unless the cost of summoning such record, if any, have been previously paid by such party. A plain reading of the aforesaid Rules makes it clear that the first and substantive part of Rule 1 provides the procedure to be followed by the office where an order has been passed for issue of notices in an appeal, revision or reference. In such a circumstance no option has been left with the office unless otherwise directed except to send a requisition to the subordinate Court for transmitting the record within 10 days of the receipt of the requisition unless such record has already been received.
(3.) As is evident from its first proviso which deals with second appeal, an appeal from order or a revision where order has been passed for issue of notice unlike the first part the office has been refrained from summoning the record unless it has been directed to do so or the matter is likely to be listed for hearing. It appears that obvious reason for including this proviso was that it was not thought proper to cause any unwarranted interference in the proceedings which may still be going on before the subordinate court despite the first appeal from order or a revision having been filed. As regard the second appeal, it is well known that in the ordinary course of proceedings therein necessity of record of the subordinate court arises only at the time of final hearing.;