Appeal from original decree

Order XLI, Rules 1, 3 & 9 of C.P.C. emphasize the onerous duty of the Court, including the Officer of the Appellate Court or any staff member of the Court (clerk of court/ chief ministerial officer) who has been authorized and assigned the task to accept the presentation of the memo of appeal before admission to diligently examine the memo of appeal, and judgment and decree, including all supporting documents, to ensure that everything is in order, and, if there is any doubt in the mind of the concerned Court clerk/official with regard to jurisdiction, they should raise the objection(s) and bring it to the attention of the Court to resolve it; and if the Court concludes at the time of admission that the appeal has been filed at the wrong forum, whether due to lack of territorial or pecuniary jurisdiction, or some other ancillary or incidental reasons, the memo of appeal should be promptly returned to the appellant to elect the right remedy and forum to avoid rendering the decision of the Court coram non judice at the end of the day.

Sister of petitioner filed suit for declaration that she being daughter of deceased was owner of the suit property thus, tamleeq mutation was based on fraud and mala fide, therefore, inoperative upon her rights

Sister of petitioner passed away and her legal heirs were impleaded, however, after rejection of plaint, the appeal was field only by the petitioner, whereas rest of the legal heirs were neither impleaded as appellants nor respondents

Appeal was dismissed

Validity

Petitioner had earlier filed a declaratory suit seeking similar relief but the plaint was rejected and he had not preferred an appeal

Validity

Appeal filed by the petitioner was not competent and similarly, present petition was also not maintainable for the reason that the legal heirs of petitioner's sister were not arrayed as party despite the fact that they were party before the Trial Court

Suit was barred by time in accordance with Art. 120 of the Limitation Act, 1908

Revision petition was filed on 109th day which was to be filed within 90 days as provided in second proviso to S.115, C.P.C.

Petitioner had not filed any application under S.5 of Limitation Act, 1908 for condonation of delay

Revision petition was dismissed, in circumstances.

Not necessary to challenge every interim order in grounds of appeal but entire case including interim orders is reopened at the time of hearing appeal.

Appellate Court has been given full authority to examine each and every interim order as well as all proceedings conducted by the Trial Court as appeal is continuation of the suit.

Appellants called in question the order passed by trial court under O.XVII, R.3, C.P.C. and the judgment passed by lower appellate court whereby appeal was dismissed as barred by time

Appellants claimed that their predecessor-in-interest was murdered and prior to his murder he was abducted by an organized group for ransom due to which he could not file appeal within time

Validity

Appellants could not explain in detail the dates on which their predecessor-in-interest was prevented from bringing evidence to the Court on the basis of circumstances beyond his control and also the exact dates on which they could not file appeal within time due to uncontrollable state of affairs

Fact of abduction was not substantiated by any document

FIR produced by appellants regarding murder of their father (predecessor-in-interest) was silent about his abduction at the relevant time

Delay on behalf of predecessor-in-interest of appellants was not sufficiently explained to warrant condonation of delay

Second appeal was dismissed, in circumstances.

Whenever appellate court is to reverse findings of court below, it has to give reasons for disagreeing with findings of lower court and also to advance reasons for its opinion in support of reversing the findings.

Defendants filed application for condonation of delay in filing of appeal before appellate court on ground that they had been prevented from filing appeal for certain unexplainable circumstance

Appellate court condoned the delay

Validity

Condonation of delay in filing appeal required sufficient reasons

Term "sufficient cause" meant adequate reasons

Party should have shown that beside acting bona fide, he had taken all possible steps within its power and control and approached court without any unnecessary delay

Once a valuable right had accrued in favour of one party, as result of failure of other party to explain delay by showing sufficient cause and its own conduct, that would be unreasonable to take away that right, particularly when delay was direct result of negligence, default or inaction of that party

Law of limitation was substantive law and has definite consequence on rights and obligations of parties

Appellate court had accepted the application for condonation of delay without assigning any cogent reasons

Defendants could not made out a case for condonation of the delay

Revision of plaintiff was allowed.

Appellate court setting aside judgment and decree of Trial Court remanded the case for decision afresh on merits after impleading necessary party

Validity

Predecessor of plaintiff had filed present suit only for restraining defendants from interfering in his possession

Appellate court, having admitted that defendants were not able to prove their ownership and possession of suit property, had remitted the case to trial court to record pro and contra evidence to determine undisputed title of the suit property

Person, who was directed by appellate court to be impleaded as party, had not disputed possession of plaintiffs in the suit property

Evidence on record was, therefore, sufficient to dispose of appeal on merits in terms of O. XLI, R. 24, C.P.C.

Appellate court, in such scenario, should have decided the case on available record, avoiding its remand

High Court, setting aside judgment and decree of appellate court, remanded the case to appellate court for decision afresh.

Appellate Court dismissed the appeal on ground that the petitioner had earlier withdrawn appeal against the same order without permission to file fresh appeal

Validity

Dismissal of the appeal on said ground was contrary to law

High Court, setting aside impugned order of dismissal, directed appellate court to decide the appeal on merits

Revision petition was allowed in circumstances.

In case of an appeal to be filed under O.XLI, C.P.C. non-filing of impugned decree was fatal.

Trial court decreed the suit ex parte, and appellate court dismissed appeal against the same on ground of delay of one year in filing the appeal

Validity

Defendant had not assigned any cogent or plausible explanation for delay in filing of appeal, and only ground taken for delay was negligence on part of its counsel

No party could take advantage of negligence or carelessness of his counsel

High Court observed that defendant was under a duty to get itself informed about fate of its case

Negligence on part of counsel to give necessary information about the case would not per se constitute sufficient ground for condonation of delay when valuable rights had already accrued to plaintiff by efflux of time

Delay in filing of appeal could only be condoned if delay of each day was explained, which factor was totally lacking in the present case

Defendant, having come to know of judgment and decree of trial court, had applied for certified copies of the same after more than two months

Defendant was supposed to file appeal immediately after getting knowledge of the judgment and decree within period of thirty days

High Court observed that Government functionaries had to strictly follow the limitation provided under law, and no special treatment could be afforded to them

Revision petition was dismissed in circumstances.

Appeal filed by plaintiff/appellant thereagainst was dismissed on the ground that on the opening sheet of the appeal, "suit for mandatory injunction" was written instead of "suit for possession" and certain grounds of appeal related to "suit for mandatory injunction"

Appellant's application for amendment in the opening sheet was dismissed by Appellate Court

Contention of the appellant was that the appeal was filed for the suit for possession and only inadvertently suit for mandatory injunction had been written on the opening sheet

Validity

No doubt that along with the appeal certified copy of judgment in suit for possession was attached and appeal was filed before the correct forum in relation to the jurisdictional value for a suit for possession

Such formal defects were ignorable by the Appellate Court and even amendment sought by the appellant was for removal of formal objections and even without such amendment, the appeal was to be proceeded on merits

When names of the parties were correct, certified copies of correct judgment and decree were annexed with the appeal and the value of the purpose of court-fee and jurisdiction were correctly mentioned in the opening sheet, then the Appellate Court was bound under law to decide the appeal on merits

High Court set aside impugned order and directed the Appellate Court to decide the cases on merits

Appeal was allowed, accordingly.

Appeal of defendant was allowed by Appellate Court despite the fact that memorandum of appeal filed by the defendant/appellant did not accompany the decree sheet of Trial Court as the same was not prepared by the Trial Court

Contention of the plaintiff was that on ground of said deficiency, appeal was not maintainable

Validity

Evidence on record showed that Trial Court failed to draw up a formal decree sheet in accordance with its judgment and said deficiency was also noticed by the Appellate Court

Requirement of O.XLI, R.1, C.P.C. that copy of decree sheet was to be accompanied with memorandum of appeal was mandatory and it was incumbent upon the Trial Court to prepare a proper and complete decree sheet

In line with the principle that a party could not be penalized for the act or neglect of the court, the Appellate Court ought to have required the Trial Court to prepare a correct decree sheet and call upon the appellant/defendant to file its certified copy in court to ensure compliance with O.XLI, R.1, C.P.C.

Appeal before the Appellate Court was therefore, incompetent due to non-preparation of decree sheet and thus Appellate Court fell in error while allowing appeal of the defendant

High Court set aside order of Appellate Court and directed that the appeal of defendant be considered pending before Appellate Court and further directed the Trial Court to prepare a proper decree sheet

Revision was allowed, accordingly.

Suit for possession of immovable property and permanent injunction was filed by plaintiff through his attorney and was decreed by Trial Court

Appellate Court set aside decree on the ground that suit was filed by an incompetent person, as plaint did not contain a concise statement to the effect that the suit was being filed through plaintiff's attorney

Validity

No specific issue was framed regarding question of competency of plaintiffs attorney and no objection in that regard was raised by the defendants in their written statements

General power of attorney was exhibited in evidence before Trial Court

Court, under law, was required to give finding on questions formulated before it in the form of issues

Rules framed in the C.P.C. were made for advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice

Under S.99, C.P.C. mere error or irregularity not affecting merit or jurisdiction was not sufficient for setting aside a decree

Since concise statement not mentioning the name of general attorney was a non-issue, the Appellate Court had committed material irregularity which had resulted in an injustice

High Court set aside impugned order of Appellate Court and restored decree of Trial Court

Appeal was allowed, in circumstances.