MUNICIPAL CORPORATION OF DELHI Vs. MOTI LAL

JUDGEMENT

(1.) This appeal is directed against the order of the Additional Senior Subordinate Judge, Delhi, with enhanced powers, dated 30th May, 1963. A preliminary objection has been taken on behalf of the respondents that the appeal is barred by time.

(2.) An application for obtaining certified copies of the judgment and decree of the Additional Senior Subordinate Judge was made on 6 th June, 1963. and it was ready for delivery on 17th July 1963 The appeal was filed in this Court on 8th Octomber, 1963. On the same day it was returned by the office with the remarks that a certified copy of the trial Court's order had not been filed and the affidavit filed was not attested. The appeal was required to be reflied within a week. In spite of that the appellant did not apply for a certified copy of the trial Court's Judgment till 29-10-1963 and the same was ready for delivery on 3-12-1963. The appeal was refiled three days thereafter, that is, on 6-12-1967. The learned counsel for the respondents submits that when the appeal was filed on 8-10-19263, 130 days had expired and afr taking the time spent for obtaining -the certified copy of the Appeal Court's judgment, the total number of days available ford filing the appeal would be 132 daps. Consequently if only the appeal Court's judgment and decree had to be filed with the appeal the appeal would be within time. He, however, refers to the provisions of rule 2 as added in Punjab to Order 42, Civil Procedure, Code, and submits that the appeal was not validly presented on 8.11.1963 unaccompanied as it was by the judgment of the Court of first instance. He further submits that the time spent in obtaining a certified copy of the judgment of the Court of first instance cannot be taken into consideration since even the application for the certified copy was made after the expiry of the period of limitation. According to the learned counsel the appeal was validly presented only on 6-12-1963. In support of the proposition that the appeal can be taken to have been validly presented only when it is accompanied by a copy of the judgment of the Court of first instance and of the copies of the decree and judgment appealed against the learned counsel relies on:-

(3.) Mr. Tara Chand Brijmohan Lal has raised two-fold contentions. He says that all the aforesaid judgments are no longer good law in view of the decision of their Lordships of the Supreme Court in Jagat Dhish v. Jawahar Lal. His contention is that in the said judgment the Supreme Court has held that an appeal even if not accompanied by a copy of the decree would be a validly presented appeal. The learned counsel says that if that were not the decision their Lordships would have dismissed the appeal and directed the party to file a fresh one. I do not agree. In at case a copy of the decree had not been filed with the appeal because the same had not been drawn up by the trial Court. In those circumstances their Lordships said that the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. As a matter of fact, their Lordships in terms said :-