Defective appeal filing
VISHNU
(Querist) 19 August 2011
This query is : Resolved
Dear sir
1. Mr x Filed an appeal in court without original copy of impugned judgment but filed zerox copy even not signed by advocate. Petition at hearing.
Whether at the time of final argument, it will be considered valid appeal and whether it will be treated as time bar appeal as the appeal in no appeal in eyes of law.
Kindly reply with settled case of law from any High court on this.
ajay sethi
(Expert) 19 August 2011
it so happens in many cases that original order not filed as may be applicationfor certified copy made but not received till the date of filing of appeal .
in such a case registry ought not have numbered the eppeal . if advocate has given undertaking that on receipt of certified copy of order it will be filed registry takes it on record .appellant can rectify defect and file certified copy of order
ajay sethi
(Expert) 19 August 2011
The Supreme Court in Bhagwan Swaroop v. Mool Chand , while dealing with the
question whether strict observance of the procedural law is essential, held as follows:
A code of procedure is designed to facilitate justice and further it is not a penal enactment for punishment and penalties.
Dealing with the same question, in Manohar Lal v. W.B.N. Supply, Gurgaon , the Supreme Court has observed as follows:
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure.
In Balakrishna Industrial Works v. Venkatachari (1954) 2 M.L.J. 290, an appeal was filed before this Court against the order of the trial Court dismissing an application for temporary injunction without the certified copy of the decretal order. A Division Bench of this Court held that the appeal filed without the copy of the decretal order appealed against is not maintainable. But, however, the Division Bench permitted the appellant in that case to file the copy of the decretal order during the pendency of the civil miscellaneous appeal and ruled that the civil miscellaneous appeal is in order after the production of the copy of the decretal order appealed against and then disposed of the appeal on merits. In Essa v. M.M. Jamal and Sons represented by M.M. Jamal 1972 T.L.N.J. 278, a civil miscellaneous appeal was filed before this Court and numbered after dispensing with the production of the decretal order appealed against. The respondent in that case filed a petition for dismissing the appeal on the ground that the certified copy of the decree of the trial Court has not been filed. This Court held that in view of the fact that the appeal was already admitted it was not inclined to dismiss the appeal straightaway. This Court directed the trial court to furnish the certified copy of the decree immediately and further directed the office of this Court to examine whether the appeal is in time as soon as the copy of the order appealed against is produced before this court. In view of the above legal position, the appeal filed by the petitioner in R.C.A. No. 661 of 1987 is not liable to be dismissed on the ground that at the time when the appeal was filed it was incompetent because the certified copy of the order appealed against was not produced along with the memorandum of the grounds of the appeal, particularly when the petitioner has applied for the copy of the order appealed against, the very next day after the order in R.C.O.P. was passed and produced the same in the appeal within a week after obtaining the certified copy of the order. In these circumstances, the Appellate Authority rightly dismissed the application, M.P. No. 702 of 1987. There are no merits in this civil revision petition and the civil revision petition is liable to be dismissed. Accordingly, the civil revision petition is dismissed. No costs.
M/s. Y-not legal services
(Expert) 19 August 2011
Nice sethi sir.. Even dear vishnu.. You mentioned as impugned judgement. Its mean do you know the difference between order and judgement? If there is impugned order mean, an impugned order can be challenged without produce the original order. I mean by filing a dispense with petition.
M/s. Y-not legal services
(Expert) 19 August 2011
And if that person filed copy application mean the limitation will be start from the date of receipt of that copy application. Its may took a year also. Limitation will not be calculate without copy application's comply.
Shastri J.K.
(Expert) 19 August 2011
appeal will not be treated as time bared. before hearing u file an application for exemption to file certified copy of the same.
VISHNU
(Querist) 19 August 2011
Dear Sir
we extend heartiest thanks for all who took so much pain to jot down opinion on above.
Exp. A sethi view : we agree and know v well that rule is meant to deliver justice, but at the same time it is mandatory for litigant to file complete appeal in court, otherwise there are various judgments where the court has condoned the same act but not to quote as authority for further lapses. We proudly say that the question was not correctly understood in correct prospect, as in this case M.M. Jamal 1972 T.L.N.J. 27, it is NOT AT ALL applicable to our question at all,because in my question the appellant has not asked permission of court to dispense with filing of certified copy. The view of others ld counsel are also not understood as they failed to visualise the answer given by first expert, therefore i will again repeat the query for exact answer.
VISHNU
(Querist) 19 August 2011
Dear Sir
we extend heartiest thanks for all who took so much pain to jot down opinion on above.
Exp. A sethi view : we agree and know v well that rule is meant to deliver justice, but at the same time it is mandatory for litigant to file complete appeal in court, otherwise there are various judgments where the court has condoned the same act but not to quote as authority for further lapses. We proudly say that the question was not correctly understood in correct prospect, as in this case M.M. Jamal 1972 T.L.N.J. 27, it is NOT AT ALL applicable to our question at all,because in my question the appellant has not asked permission of court to dispense with filing of certified copy. The view of others ld counsel are also not understood as they failed to visualise the answer given by first expert, therefore i will again repeat the query for exact answer.
prabhakar singh
(Expert) 20 August 2011
i revert back to your earlier post where for receiving hasty answers you are agitated
:"Whether at the time of final argument, it will be considered valid appeal and whether it will be treated as time bar appeal as the appeal in no appeal in eyes of law."
IN this case at final hearing respondent will raise this point,and court will entertain it,appellant will plead in reply "technical defect"and would pray court to allow him to correct the defect,then all will depend on temperament of the presiding
judge who,if too tough & technical on law without any care for equity and justice, will reject it,and on the other hand one with equity &true justice ,will allow the defect to get cured unless the very copy filled mismatches with original,since things have since then ,moved on.
The demand of rule for certified copy is just with one purpose that appellate court has an OPPORTUNITY TO LOOK A CORRECT THING AND CERTIFIED COPIES ARE PRESUMED TO BE CORRECT,so when appeal filled well within time with one lapse that impugned order is although a correct copy BUT not a certified copy,and since things have moved on unnoticed at every table,whether this defect triggers production of such a right in the respondent which shall be irreparably be damaged,if the defects gets cured???if NO is the answer then court if inclined in doing substantial justice will allow this defect to go corrected as COST is the PANACEA which heals every SORE in litigation.
AT THIS JUNCTURE i also get my self reminded of AIR1969 sc1267 where it was emphasized that rules procedural are intended to be handmade to the administration of justice and A PRTY CAN NOT BE REFUSED JUST RELIEF MERELY BECAUSE OF SOME MISTAKE , INADVERTENCE OR EVEN INFRACTION OF THE RULES OF PROCEDURE .
