Full Judgment Text
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PETITIONER:
MAHANT BIKRAM DASS CHELA
Vs.
RESPONDENT:
FINANCIAL COMMISSIONER, REVENUE,PUNJAB, CHANDIGARH AND OTHER
DATE OF JUDGMENT03/08/1977
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
KAILASAM, P.S.
CITATION:
1977 AIR 2221 1978 SCR (1) 262
1977 SCC (4) 69
CITATOR INFO :
R 1978 SC 335 (11)
ACT:
Limitation Act 1963, Sections 5, 117-Whether requirement of
filing sufficient copies of memorandum of appeal mandatory-
Whether not filing of file copies renders appeal
time-barred-Civil Procedure Code, O.41 r. 1-Rules and orders
of Punjab High Court-Chapter I Volume V.
HEADNOTE:
The appellants filed two applications for the ejectment of
the respondents on the ground that they failed to pay rent
without sufficient cause. These applications were dismissed
first by the Assistant Collector and then by the Collector.
The appellant then filed two revision applications to the
Commissioner who made a recommendation to the Financial
Commissioner to the effect that the orders of the Collector
and the Assistant Collector be set aside and a decree for
ejectment be passed against the respondents. Financial
Commissioner passed a decree evicting the respondents from
the land in one revision application. The the other
Revision Application the Financial Commissioner held that
the ejectment petition filed by the appellant had become
infructuous in view of the fact that the land was required
by the Amritsar Improvement Trust which had already taken
possession thereof. The question of their ejectment did not
arise for consideration.
The appellant challenged the decision of the Financial
Commissioner by filing a writ petition in the Punjab &
Haryana High Court. The writ petition was dismissed by a
single Judge on 10th November 1970. The appellant filed an
appeal against that judgment under clause 10 of Letters
Patent to a Division Bench of the High Court.
The Memorandum of Letters Patent Appeal against that
judgment was lodged by the appellant on December 23, 1970,
which was within 30 days from the date of the judgment
appealed from. The Letter Patent Appeal came up for
admission on February 24, 1971 when Division Bench issued
notice to the respondent. Respondents raised an objection
that the appeal was barred by limitation on the ground that
though the memorandum of appeal was filed within 30 days of
the date of the judgment of single Judge, it was not accom-
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panied by 3 sets of documents which are required to be filed
under the rules of the High Court. Counsel for appellant
then asked for an adjournment for filing an application
under s. 5 of the Limitation Act 1063 for condonation of
delay.
The matter was referred for opinion of a full Bench. The
question which the Division Bench, inter alia, referred to
the Full Bench was as under :
"Can an appeal under clause 10 of the Letters
Patent be held to be incomplete or ’no appeal
in the eye of law’ merely because it is not
accompanied by the requisite three spare
copies of the paper book
This question was answered by the full Bench
thus :
"the above discussion leads to the conclusion
that if an appeal under clause 10 of the
Letters Patent does not comply with the
mandatory provision of Rule 3 of Chapter 2-e
of the High Court Rules by not filing 3 sets
of typed copies of the documents, it has to be
regarded as no appeal in the eyes of the law
and shall not be deemed to be filed on that
day. it shall be deemed to have been filed
only on the day, when it is complete in all
respects as ’required by the Rules and is
accepted to registration by the Registry."
After deciding the question the Full Bench remitted the
appeal to Division
2 6 3
Bench and directed the Division Bench to deal with the
application filed by the appellant for condonation of delay
caused in filing the appeal.
The Division Bench then took up the appeal for consideration
of the question whether the delay caused in filing the
appeal should be condoned under s. 5 of Limitation Act. It
held that the appellant had failed to make out a case for
condonation of delay and, therefore, dismissed it on the
ground that it was barred by limitation.
Allowing an appeal by certificate,
HELD : For deciding the question whether the appeal is
preferred in time, the relevant provisions of the Limitation
Act, the Civil Procedure Code and the Rules and Orders of
the High Court must be noticed. [266C]
Article 117 of Limitation Act 1963 prescribes a period of 30
days limitation for filing an appeal from a decree or order
of any High Court to Supreme Court. The time for filing
such an appeal runs from the date of the decree or order
appealed from. Section 5 of Limitation Act provides for
extension of the prescribed period of limitation if the
appellant satisfies the Court that he had sufficient cause
for not preferring the appeal within that perod. [266C-D]
Order 41, Rule 1(1) of Civil Procedure Code requires that
every appeal shall be preferred in the form of a memorandum
signed by the appellant or his pleader and presented to the
Court or to such officer as it appoints in that behalf. The
memorandum has to be accompanied by a copy of the decree
appealed from and of the judgment on which it is founded,
unless the appellate court dispenses with the production of
the judgment. If these conditions are fulfilled, the appeal
is preferred validly so far as the requirements of Civil
Procedure Code are concerned on the date on which it is
presented. A memorandum which does not satisfy these
requirements may, under Rule 3(1) be rejected or returned to
the appellant for the purpose of being amended within a time
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to be fixed by the Court or be amended then and there.
[266D-F]
Chapter I of Volume V of Rules and Orders of Punjab High
Court, which is entitled "Judicial Business" deals under
Part A with the presentation and reception of appeals,
petitions and applications for review and revision. Pule 4
provides :
"No memorandum of appeal preferred under
clause 10 of Letters Patent shall be
entertained if presented after the expiration
of 30 days from the date of the judgment
appealed from unless the admitting Bench in
its discretion, for good cause shown, grants
further time for presentation." [266G-H]
By Rule 5(1) the Deputy Registrar may return for amendment
and refiling within a time not exceeding 10 days at a time,
and 40 days in the aggregate, to be filed by him any
memorandum of appeal for the reason specified in Order XLI,
Rule 3, Civil Procedure Code, if the memo of appeal is not
amended within the time allowed by the Deputy Registrar
under sub-rule (1) it has to be listed for orders before the
Court under sub-rule (2). [267AB]
Chapter 2-e, Part which deals with "Preparation of Paper
Books in L.P. Appeals" provides by rule 3 that no appeal
under clause 10 of the Letters Patent be received by-the
Deputy Registrar unless it is accompanied by three typed
copies of (a) the memorandum of appeal; (b) the judgment
appealed from and (c) the paper book which was before the
judge from whose judgment the appeal is preferred. [267B-C]
In the instant case, only one set of documents was filed
along with the memorandum of the Letters Parent Appeal.
Nevertheless, the Deputy Registrar did receive the appeal on
December 23, 1970. He accepted the remaining two sets of
the documents required to be filed under Rule 3 on January
30, 1971. [267C]
HELD FURTHER : Rule 3 is directory and not mandatory. Rule
3 being directory in nature, substantial compliance
therewith is enough to meet its requirements. There was in
this case substantial compliance with the rule and it was
erroneous to treat the appeal as being time barred by
limitation
264
Since one complete set of three documents specified in Rule
3 was filed alongwith the memorandum, the failure to., file
two additional set of document is a mere irregularity which
it was within the discretion of the High Court to condone.
[267D, 268C]
State of Punjab v. Shamlal Murari [1976] 2 SCR 82 followed.
The submission of the respondent that this court should not
interfere with the order of High Court passed in its
discretionary powers negatived; since the High Court
exercised its discretion on a fallacious supposition that
the appeal was time-barred. [267H, 268A]
Section 5 of the Limitation Act is a hard-task master and
judicial interpretation has encased it within a narrow
compass. A large measure of case-law has grown around s. 5,
its high lights being that one ought not easily take away a
right which has accrued to a party by lapse of time and
that, therefore, a litigant who is not vigilant about his
rights must explain every day’s delay. These and similar
considerations which influence the decision of s. 5 applica-
tion are out of place in cases where the appeal itself is
preferred within the period of limitation but there is an
irregularity in presenting it. [268G-H. 269A]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1822 of
1975.
From the Judgment and Order dated 26-9-1974 of the Punjab
and Haryana High Court in Letters Patent Appeal No. 65 of
1971.
H. L. Sibbal, S. K. Jain and S. M. Jain for the Appellant.
N. C. Sikri, A. K. Sikri and A. D. Sikri for Respondents
4-6
The Judgment of the Court was delivered by
CHANDRACHUD, J. The appellant, Mahant Bikram Dass Chela,
filed two applications for eviction of respondents 4 to 6
(hereinafter called ’the respondents’), on the ground that
they had committed default in the payment of rent. A
compromise was arrived at between the parties on March 31,
1969, under which it was agreed that the respondents should
pay to the appellant a sum of Rs. 11,872 by March 31, 1959
and the balance in six-monthly installments of Rs. 1,000/-
each. Respondents committed default in the payment of
future instalments, upon which the appellant filed two
applications on April 2, 1962 for their ejectment on the
ground that they had failed to pay rent without sufficient
cause. One of these applications covered an area of 117
Kanals and the other of 76 kanals odd. . . . . These
applications were dismissed first by the Assistant Collector
and in appeal by the Collector. The appellant then filed
revision applications to the Commissioner, who, on March 1,
1965 made a recommendation to the, Financial Commissioner to
the effect that the orders of the Collector and the
Assistant Collector be set aside and a decree for ejectment
be passed against the respondents. By his order dated
November 26, 1965 the Financial Commissioner accepted the
recommendation with regard to the area of 76 Kanals and
passed a decree evicting the respondents from that land.
That order his become final.
In the other Revision pertaining to 117 Kanals, the
Financial ’Commissioner by an order dated November 4, 1965
held that the ejectment-petition filed by the appellant had
become infructuous in view of the fact that the land was
acquired by the Amritsar Improvement Trust, which had
already taken possession thereof. According
265
to the Financial Commissioner, since the Improvement Trust
had taken possession of the land, respondents ceased to be
tenants and the "question of their ejectment did not arise
for consideration.
The appellant then filed a Civil Writ, No. 1146 of 1966, in
the Punjab & Haryana High Court, challenging the decision of
the Financial Commissioner. The, Writ Petition was
dismissed by a learned Single Judge against which the
appellant filed an appeal under clause 10 of the Letters
Patent to a Division Bench of the High Court.
The Single Judge had dismissed the Writ Petition on November
27. 1970. The Memorandum of the Letters Patent Appeal
against that judgment was lodged by the appellant on
December 23, 1970, which was within 30 days from the date of
the judgment appealed from. The Letters Patent appeal came
up for admission on February 24, 1971 when the Division
Bench directed that a notice be issued to the respondents in
regard to the admission of, the appeal. After completion of
the record of the appeal, the matter was placed for hearing
before a Division Bench. when the respondents raised an
objection that the appeal was barred by limitation on the
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ground that though the memorandum of appeal was filed within
30 days of the date of the judgment of the Single Judge, it
was not accompanied by three sets of documents which are
required to be filed under the rules of the High Court.
Counsel for the appellant then asked for an adjournment for
filing an application under s. 5 of the Limitation Act for
condonation of die delay. Notice of the condonation appli-
cation was given to the respondents and on hearing them, the
Court framed seven questions and referred them for the
opinion of a Full Beach. The questions, as they read, do
not seem to call for such special treatment but it appears
that though the matters in dispute relate to procedural
regulations, learned Judges of the High Court had taken
differing views which necessitated the reference to a Full
Bench.
The Full Bench answered those questions by a judgment dated
March 19, 1974 and remitted the appeal to the Division Bench
for final disposal in the light of the answers given by it.
It also directed the Division Bench to deal with the
application filed by the appellant for condonation of the
delay caused in filing the appeal.
Out of the seven questions referred to the Full Bench, we
are concerned, principally, with question No. 7 only, which
is as follows
"Can an appeal under clause 10 of the Letters
Patent be held to be incomplete or "no appeal
in the eye of law" merely because it is not
accompanied by the requisite three spare
copies of the paper-book ?"
This question was answered by the Full Bench
thus
"The above discussion leads to the conclusion
that if an appeal under clause 10 of the
Letters Patent does not corn ply with the
mandatory provisions of Rule 3 of Chapter 2-C
of the Rules by not filing three sets of typed
copies of the documents, it has to be regarded
as no appeal in the eve of law and shall not
be deemed to have been filed on
6--768SCI/77
266
that day. It shall be deemed to have been
filed only on the day when it is complete in
an respects, as required by the Rules, and is
accepted for registration by the Registry."
The Division Bench then took up the appeal for consideration
of the question whether the delay caused in filing the
appeal should be condoned under S. 5 of the Limitation Act.
By a judgment dated September 26, 1964 it held that the
appellant had failed to make out a case for condonation of
the delay and, therefore, the appeal was liable to be
dismissed on the ground that it was barred by limitation.
The appeal was accordingly dismissed, against which the
appellant has filed this appeal by certificate granted by
the High Court.
For deciding the question whether the appeal was preferred
in time, the relevant provisions of the, Limitation Act, the
Civil Procedure Code and the Rules and Orders of the Punjab
High Court must be noticed.
Article 117 of the Limitation Act, 36 of 1963, prescribes a
period of. 30 days’ limitation for filing an appeal from a
decree or order of any High Court to the same Court. The
time for filing such an appeal runs from the date of the
decree or order appealed from. Section 5 of the Limitation
Act provides for extension of the prescribed period of
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limitation if the appellant satisfies the court that he had
sufficient cause for not preferring the appeal within that
period.
Order 41, Rule 1(1) of the, Code of Civil Procedure requires
that every appeal shall be preferred in the form of a
memorandum signed by the appellant or his pleader and
presented to the Court or to such officer as it appoints in
that behalf. The memorandum has to be accompanied by a copy
of the decree appealed from and of the judgment on which it
is founded, unless the appellate court dispensers with the
production of the judgment. If these conditions are
fulfilled the appeal is preferred validly, so far as the
requirements of the Civil Procedure Code are concerned, on
the date on which it is presented. A memorandum which does
not satisfy these requirements may, under Rule 3(1), be
rejected, or returned to the appellant, for the purpose of
being amended within a time to be fixed by the Court or be
amended then and there.
The Rules and Orders of the Punjab and Haryana High Court,
which are contained in Volume V of the High Court
publication, relate to "Proceedings in the High Court" and
are made under the authority, inter alia, of the Letters
Patent of the High Court. Chapter of the aforesaid volume,
which is entitled "Judicial Business", deals by Part A with
the presentation and reception of appeals, petitions and
applications for Review and Revision. Rule 4 provides :
"No memorandum of appeal preferred under
clause 10 of the Letters Patent shall be
entertained if presented after the expiration
of 30 days from the date of the judgment
appealed from, unless the admitting Bench in
its discretion, for good cause shown, grants
further time for the presentation".
267
By rule 5(1), the Deputy Registrar may return for amendment
and refiling within a time not exceeding 10 days at a time,
and 40 days in the aggregate, to be fixed by him, any
memorandum of appeal for the reason specified in Order XII,
Rule 3, Civil Procedure Code. If the memorandum of appeal
is not amended within the time allowed by the Deputy
Registrar under sub-rule (1), it has to be listed for orders
before the Court under sub-r. (2).
Chapter 2-C, Part C, which deals with "Preparation of paper
books in Letters Patent Appeals", provided by rule 3 that no
appeal under clause 10 of the Letters Patent will be
received by the Deputy Registrar unless it is accompanied by
three typed copies of (a) the memorandum of appeal; (b) the
judgment appealed from; and (c) the paper-book which was
before the Judge- from whose judgment the appeal is
preferred.
In the instant case, only one set of documents was filed
along with the Memorandum of the Letters Patent Appeal.
Nevertheless, the Deputy Registrar did receive the appeal on
Dec. 23, 1970. He accepted the remaining two sets of the
documents required to be filed under rule,3 on January 30,
1971.
The judgment of the Full Bench, Bikram Dass Dass v.
Financial Commissioner,(1) in pursuance of which the
Division Bench considered the question of condonation of
delay and passed the impugned order came for consideration
before this Court in State of Punjab v. Shamlal Murari.(2)
It was held in that case that every minor detail specified
in rule 3 does not carry a compulsory import, that the core
of the matter is not that three copies of documents
mentioned in the rule must be filed but that copies of all
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the documents mentioned in the rule should be before the
Court and that there should be no overemphasis on the filing
of three copies of the documents at the time when the appeal
is filed. The Court further observed that if no copy at all
of any of the three items is furnished the result might be
different but the failure to comply with the rule strictly
is a mere irregularity which the Court, in the exercise of
its discretion, can condone by granting further time for
formal compliance with the rule. After thus holding that
rule 3, though expressed in mandatory language, is directory
in nature, the Court did not interfere with the order of the
High Court refusing to extend the time and condone the
delay, since that was a discretionary exercise of power by
the High Court.
Following this decision, and in respectful agreement with
the view that rule 3 is directory and not mandatory, we must
hold that since one complete set of the three documents
specified in rule 3 was filed along with the memorandum, the
failure to file two additional sets of documents is a mere
irregularity which it was within the discretion of the High
Court to condone.
Counsel for the respondents contends that since the High
Court has exercised its discretion in the matter by refusing
to condone the delay, we should not interfere with the High
Court’s order for the
(1) A.I.R. [1975] Punjab. 1.
(2) [1976] 2 S.C.R. 82.
268
same reasons for which this Court in Shamlals (supra) case
refused to interfere with discretionary order. We are
unable to accept that the decision in Shamlal’s case can be
a precedent on the question as to the limits of the power of
this Court to interfere with a discretionary order. But
quite apart from that consideration, there are valid reasons
why we cannot sustain the order of the High Court refusing
to condone, what is described as ’the delay caused in filing
the Letters Patent Appeal.
The argument proceeds on the assumption that the appeal was
presented beyond the period of limitation prescribed for
filing Letters Patent Appeals. That is a fallacious
assumption. The appeal was presented within 10 days, which
is the period of limitation for filing Letters Patent
Appeals. There was, however, an irregularity in presenting
the appeal, namely, that the appeal was accompanied by only
one set of the three items mentioned in rule 3 of Chapter 2-
C which requires that three sets should be filed. Ride 3,
being directory in nature, substantial compliance therewith
is enough to meet its requirements. There was, in the
instant case, substantial compliance with the rule and
therefore, it was erroneous to treat the appeal as being
barred by limitation.
The irregularity committed in filing only one set of the
three documents mentioned in rule, 3 of Chapter 2-C was
cured within a reasonable time by filing the remaining two
sets on January 30, 1971. That was within 40 days of the
date on which the appeal was preferred, which is the time
which the Deputy Registrar can grant in the aggregate, under
rule 5(1) of Chapter 1, for amendment of a memorandum of
appeal which does not comply with Order 41, rule, 3, C.P.C.
The Letters Patent Appeal was taken up by the Admitting
Bench for admission on February 24, 1971 when the appeal was
complete in all respects. There was then no question of
granting further time for "presentation" of the appeal or
for removing the irregularity from which the presentation of
the appeal suffered.
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The objection raised by the respondents on the score of
limitation, the adjournment sought by the appellant to file
an application under s. 5 of the Limitation Act for
condonation of delay and the refusal of the Division Bench
to condone the delay are all misplaced, proceeding as they
did on an erroneous assumption that the appeal was barred by
time on the date on which it was filed and that the re-
quirement of rule 3 of Chapter 2-C is mandatory in
character. We cannot stay our hands on the ground that this
Court does not normally interfere with discretionary orders,
when the High Court used its discretion on an altogether
fallacious supposition that it had to consider the question
of condonation of delay in the context of an application
filed under s. 5 of the Limitation Act.
Section 5 of the Limitation Act is a hard task-matter and
judicial interpretation has encased it within a narrow
compass. A large measure of case-law has grown around s. 5,
its highlights being that one ought not easily to take away
a right which has accrued to a party by lapse of time and
that therefore a litigant who is not vigilant about his
rights must explain every day’s delay. These and similar
269
considerations which influence the decision of S. 5
applications are out of place in cases where the appeal
itself is preferred within the period of limitation but
there is an irregularity in presenting it. Thus, in the
instant case, there was no occasion to invoke the provisions
of s. 5, Limitation Act, or of rule 4, Chapter 1, of the
High Court Rules. If the Division Bench were, aware that
rifle, 3 of Chapter 2-C is directory, it would have treated
the appeal as having been filed within the period of
limitation, rendering it inapposite to consider whether the
delay caused in filing the appeal could be condoned.
We hold accordingly that the High Court is wrong in its view
that the appeal was barred by time. The, memorandum was
presented within the prescribed period of limitation of 30
days and there is no reason why, the irregularity committed
in not filing three sets of documents along with the
memorandum should not be excused when one complete set was
filled with the memorandum and the remaining two sets were
filed within a reasonable, time thereafter.
It is not necessary to send back this matter to the High
Court, since the parties have arrived at a settlement. The
appellant. agrees that the sum of Rs. 25,734/- which is kept
in a fixed deposit account in the names of respondent 4
(Dayal Singh), respondent 5 (Harbhajan Singh) and respondent
6 (Harbans Singh) in the Punjab National Bank, Amritsar, may
be, withdrawn unconditionally by these respondents, together
with the interest which may have accrued on the aforesaid
amount. Mr. Sikri, on behalf of the three respondents,
gives up all the rights and contentions in the matter and
agrees that his clients shall have no right to participate
or share in any further or higher amount which may be
granted by way of compensation for the acquired land. The
appellant, on his part, agrees that be will not be entitled
to recover from respondents 4, 5 and 6 any amount by way of
arrears of rent. Since respondents 4, 5, and 6 have given
up their contentions in the suit, their rights shall stand
transferred to the appellant.
The appeal shall stand disposed of accordingly. There will
be no order as to costs.
F.H.P.
Appeal allowed.
270
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