- (1.) THESE eight appeals, one filed by Sohanlal and the other seven by Mishrilal against the respective respondents came up for hearing before us. Since they raised a common point of law - whether these appeals have been properly filed or not - they were all heard together, and this one order disposes of the question raised in all these appeals.
(2.) BRIEFLY, the facts of the case are that the two appellants Sohanlal and Mishrilal filed suits for possession against the various respondents. They were decreed by the trial court, but these decrees were reversed by the first appellate Court. Against this order of reversion by the first appellate Court these second appeals were filed in 1961-62 before the Board of Revenue. The appellants filed the copy of the decrees and the judgments of the first appellate Court but no copy of the Court of first instance was ever filed with these appeals. Therefore, in 1963 when these appeals came up for hearing a preliminary objection was raised by the counsel for the respondents that these appeals were incompetent until the judgment of the Court of first instance was filed. The counsel for the appellant took leave of the Court to reply to this preliminary objection of the counsel for the respondent. He made an application subsequently and alongwith that application filed the copy of the judgment of the Court of first instance, but no copy of the application with which judgment of the Court of first instance was filed was given to the counsel for the respondent. However, the question came up again when these appeals were taken up for hearing whether these appeals were properly filed in the absence of the judgment of the court of first instance. It was argued by the counsel for the respondent that the Rajasthan Revenue Courts Manual Rule 17 required that every memo of appeal must be accompanied by a copy of the judgment of the Court of first instance. As the appellant has not filed the copy of this judgement the appeal was improperly and incompetently filed and it should be rejected. He cannot be allowed to file the copy of the judgment of the Court of first instance now after the period of limitation was over. There are no sufficient grounds for condonation of delay in late filing of this copy of the judgment of the Court of first instance. The counsel for the appellant's reply was that although the Registrar gave time as required under Rule 32 of the Rajasthan Revenue Courts Manual for filing the copy of the judgment, yet no date was fixed for filing this copy. It was a bonafide mistake of the counsel for the appellant in not filing the copy of the judgment of the Court of first instance. It was merely a formal defect for which the appeals cannot be rejected and the question of limitation period running against the appellant does not arise. We have considered the arguments advanced from both sides, and perused the record. For filing of appeals in the Board of Revenue there is no doubt that R. 17 lays down a mandatory provision as to what documents should accompany the memo of appeal or application for revision. The Rule 17 runs as follows: 17. Documents to accompany memorandum of appeal or application for revision shall be accompanied by - (a) a copy of the decree or order against which the appeal or application is directed, (b) a copy of the judgment upon which such decree or order is founded; (c) a copy of the judgment of the Court of first instance when the appeal or application is directed against an appellate order or decree; (d) in the case of memorandum of appeal which is filed after the expiry of the period of limitation application supported by an affidavit for extension of the period of limitation under sec. 5 of the Indian Limitation Act: Provided that the Court 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)". It is thus clear that clause C of Rule 17 requires that a copy of the judgment of the Court of first instance must be filed when the appeal is directed against an appellate order or decree. Rule 32 of the Manual provides that if the necessary documents do not accompany the memorandum of appeal it gives power to the Registrar to give time to an appellant for supply of these documents. He may even grant such time for filing of these documents but that does not have the effect of extending the period of limitation where these documents have not been filed within the prescribed time. The Registrar has further power under rule 32, that if those documents are not supplied within the time allowed, to list the appeal for rejection before the Board. In this case the appellant was given the necessary direction to file the copy of the judgment of the Court of first instance, but no time was fixed and consequently the failure on the part of the appellant to file the required copy of the judgment the case was never listed for rejection before the Board. It was only at the late stage of the hearing of these appeals that this preliminary objection was raised. It is the contention of the counsel for the respondent that the failure on the part of the appellant to file the copy of the judgment of the Court of first instance makes the filing of memo of appeal incompetent since the Court for sufficient cause has not dispensed with the requirements of filing the copy of this judgment under proviso to Rule 17 and therefore the limitation period would be reckoned for filing of appeal from the date when this defect was cured and not from the date when the memorandum of appeal was filed. He further pointed out that this copy of the judgment was available with the Court and yet for no sufficient reason given, the appellant has failed to file the copy of this judgment. The fact that the Registrar did not get this defect cured, this fault of the Court, cannot be allowed to injure the rights of the opposite party. In support the counsel cited A. I. R. 1961 Supreme Court page 832. He also cited A. I. R. 1939 Allahabad page 638 and 1960 Revenue Decisions page 123. As far as the ruling of the Supreme Court goes it only says that the appeal is incomplete where copy of the decree is not filed and under order 41, R. 1 of the Code of Civil Procedure, where the memorandum of appeal is not accompanied by a certified copy of the decree, the appeal would be incomplete, defective and incompetent. In that case the decree was not drawn up by the Court concerned but it is no authority for saying that if the copy of the judgment is not filed the appeal would be defective, incomplete and incompetent. In the decision of the Allahabad High Court it has been laid down that the High Court has jurisdiction to amend the rules in Schedule 1 of the Code of Civil Procedure, but it has no jurisdiction to effect any amendment to the provisions of the Agra Tenancy Act serial No. 14 of list 2 of Schedule 2. These provisions remained unaffected by the proviso introduced by the Rajasthan High Court into Rule 1 of Order 42. Hence if party desires to filed a second appeal in a suit under the Agra Tenancy Act the memo, must be accompanied by a copy of the judgment of the original Court. Similar was the view taken in Revenue Decisions of U. P. where it was held mandatory to file a copy of the judgment of the Court of first instance alongwith the memo of second appeal under the Revenue Courts Manual. There the appellant wanted that the time taken in obtaining the copy of the judgment of the trial court should be allowed to him for purposes of limitation, but this contention of the appellant was rejected that the filing of appeal cannot be delayed for obtaining the copy of the judgment of the trial court and then time may be given to file an application for condonation of delay under secs. 5 or 12 of the Indian Limitation Act. The counsel for the appellant tried to satisfy their failure to file the copy of the judgment of the court of first instance in time by saying that in the first instance it was not mandatory to file this copy and in the second instance it was a formal defect. In support of this he cited A. I. R. 1947 Cal. p. 67 where in a brief judgment it was considered as a defect of form only and hence the question of limitation did not arise. In our opinion the judgment of the Calcutta High Court is so brief and devoid of reason in holding that the failure to file a copy of the judgment of the Court of first instance was only a formal defect inspite of the fact that the Calcutta High Courts amended R. 1 of O. 42 provision required that the judgment and decree of the Court of the first instance must be accompanied by every memorandum of appeal. The amended R. 1, O. 42 of the Rajasthan High Court is thus para materia with the R. 17 and in a second appeal it is mandatory that the copy of the judgment of the Court of first instance must be filed unless the Court for sufficient reason dispenses with these requirements. The mere fact that for all this period in these appeals the Court has not taken action for getting the copy of the judgment of the Court of first instance filed does not lead to an inference that this Court has dispensed with the formality of filing the copy of the judgment of the Court of first instance The Rule 17 is clear and it was thus mandatory on the part of the appellant to have filed the copy of the judgment of the Court of first instance. Here no time was missed for filing this copy. He has filed it at a later stage and therefore in consonance with the view taken by the Allahabad High Court as well as by the Revenue Decisions cited above we are inclined to hold that these appeals when filed without the copy of the judgment of the Court of first instance were defective and incompetent. Therefore appeals became complete only when judgment of the Court of first instance was filed that is very recently after a lapse of more than two years. No sufficient reason has been shown by the counsel for the appellant for not filing the copy of the judgment of the Court of first instance in time, hence the question of condoning the delay for late filing of the judgment does not arise now. The appeals in our opinion are heavily time barred. Therefore for these reasons we have no alternative, but to reject these appeals as barred by limitation. . ;