Kerala High Court · 2007

Kurian Joseph & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -A.F.A.NO.64 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2007JUDGMENTT.R. Ramachandran Nair, J.The appellants herein were defendants in O.S. No.4/1978 on the fileof the Additional District Court, Thrissur. The suit was one for injunctionrestraining the defendants from passing off the Ayurvedic medicalpreparations of the defendants as those of the plaintiff, and forconsequential reliefs.2. The Additional District Judge found that the plaintiff is entitled toa decree and accordingly decreed the suit. The appellants herein filed A.S.No.17/1988 before this court which was dismissed by the learned SingleJudge, on the ground of non production of the decree alone and not on themerits of the matter. The said judgment is assailed in this appeal. Theappeal was dismissed as time barred by the learned Single Judge on apreliminary objection raised by the respondents that the appellants have notproduced copy of the decree along with the appeal.3. The suit was one arising under the Trade and Merchandise MarksAct, 1958. The decree was passed by the Additional District Judge on AFA 64/1997-2-9.12.1987. Appeal, A.S. No.17/1988 was filed by the appellants on12.1.1988. This was done without producing a printed copy of thejudgment and with a copy of the last paragraph of the judgment, evidentlyissued as per Rule 6-A of Order XX of the Code of Civil Procedure. Alongwith the appeal, it is also seen that the appellants filed C.M.P.NO.1087/1988 requesting for two months time for production of the printedcopy of the judgment. This request was granted by this court on 13.1.1988.It is also to be seen that this court in C.M.P. No.1088/1988 had granted aninterim order of stay of operation of the judgment and decree of the trialcourt. Finally, the appellants filed C.M.P. No.4008/1997 to dispense withthe production of the printed copy of judgment and filed another petition asC.M.P. No.4316/1997 to enlarge the time for production of the decree byinvoking Sections 148 & 151 of the C.P.C. A copy of the decree was alsoproduced on 13.8.1997. This is the factual matrix arising from the disputeinvolved in this appeal.4. The learned single judge considered the question whether timecould be granted to produce the printed copy of the judgment whileconsidering the prayer of the appellants made in C.M.P. NO.4008/1997. Itwas found, on a reading of Rule 258(1) of the Civil Rules of Practice, thatas the judgment exceeds 700 words, it was bound to be printed. AFA 64/1997-3-C.M.P.No.4008/97 to dispense with its production, was not allowed as it isbelated. It is also noted in paragraph 5 of the judgment that the DistrictCourt had informed this court that the judgment had not been printed and nosteps were taken for getting it printed also which is evidenced by letterdated 3.9.1997 of the District Judge.5. The learned Single Judge then proceeded to consider the questionwhether the appeal which was filed without production of the copy of thedecree is maintainable. It was found that once the decree is drawn, the lastparagraph of the judgment drawn under Rule 6-A will cease to be a decreefor the purpose of execution or for any other purpose. It was thenconsidered whether the application filed under Rule 148 for enlargement oftime could be allowed or not. Ultimately it was held that there is grossdelay in producing the decree, that by the time it was produced the appealwas time barred and therefore the appeal is not maintainable.6. Mr. M.C. Sen, learned Senior Counsel arguing for the appellants,contended that the view taken by the learned Single Judge that the appeal isnot maintainable, is not correct and at any rate, by exercise of power underSection 148, time for production of the decree could have been extendedand could not have been dismissed on a technical plea rather than on themerits. It was further submitted that even though the time granted for AFA 64/1997-4-production of printed copy of judgment was over, nothing prevents the courtfrom extending the period or dispensing with its production as prayed for.He invited our attention to the decisions of the Supreme Court in ShaikhSalim Haji Abdul Khayumsab v. Kumar and others ((2006) 1 SCC 46)and Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another((2006) 1 SCC 75) and a decision of the Madras High Court in L.Varadarajan and others v. Thomas and others (AIR 2000 Madras 283).7. Shri Jimmy John, learned counsel who appeared for therespondents supported the reasoning adopted by the learned Single Judge.On a careful analysis of the issues raised, we find that the principles statedin (2006) 1 SCC 75 applies to the circumstances of this case. Whileconsidering a similar question where an appeal was dismissed for the reasonthat the vakalathnama accompanying the memorandum of appeal was notsigned by one of the appellants, their Lordships declared the law thus:“ Any defect in signing the memorandum of appeal or any defect inthe authority of the person signing the memorandum of appeal, orthe omission to file the vakalatnama executed by the appellantalong with the appeal, will not invalidate the memorandum ofappeal, if such omission or defect is not deliberate and the signingof the memorandum of appeal or the presentation thereof before theappellate court was with the knowledge and authority of theappellant. Such omission or defect being one relatable toprocedure, can subsequently be corrected. It is the duty of theoffice to verify whether the memorandum of appeal was signed by AFA 64/1997-5-the appellant or his authorised agent or pleader holding appropriatevakalatnama. If the office does not point out such defect and theappeal is accepted and proceeded with, it cannot be rejected at thehearing of the appeal merely by reason of such defect, withoutgiving an opportunity to the appellant to rectify it. The requirementthat the appeal should be signed by the appellant or his pleader(duly authorised by a vakalatnama executed by the appellant) is, nodoubt, mandatory. But it does not mean that non-complianceshould result in automatic rejection of the appeal without giving anopportunity to the appellant to rectify the defect. If and when thedefect is noticed or pointed out, the court should, either on anapplication by the appellant or suo motu, permit the appellant torectify the defect by either signing the memoradum of appeal or byfurnishing the vakalatnama. It should also be kept in view that ifthe pleader signing the memorandum of appeal has appeared for theparty in the trial court, then he need not present a fresh vakalatnamaalong with the memorandum of appeal, as the vakalatnama in hisfavour filed in the trial court will be sufficient authority to sign andpresent the memorandum of appeal having regard to Rule 4(2) ofOrder 3 CPC, read with Explanation © thereto. IN such an event, amere memo referring to the authority given to him in the trial courtmay be sufficient. However, filing a fresh vakalatnama with thememo of appeal will always be convenient to facilitate theprocessing of the appeal by the office.”8. Shri M.C. Sen, learned Senior Counsel, relying upon the decisionof the Supreme Court in (2006) 1 SCC 46, also argued that the principlestated therein on an interpretation of Order VIII Rule 1 and proviso relatingto the time fixed for acceptance of written statement, will apply here also.Their Lordships held in paragraphs 10, 11 and 12 are the following:“10. All the rules of procedure are the handmaid of justice.The language employed by the draftsman of processual law may beliberal or stringent, but the fact remains that the object of prescribingprocedure is to advance the cause of justice. In an adversarial AFA 64/1997-6-system, no party should ordinarily be denied the opportunity ofparticipating in the process of justice dispensation. Unlesscompelled by express and specific language of the statute, theprovisions of CPC or any other procedural enactment ought not to beconstrued in a manner which would leave the court helpless to meetextraordinary situations in the ends of justice.11. The mortality of justice at the hands of law troubles aJudge's conscience and points an angry interrogation at the lawreformer.12. The processual law so dominates in certain systems as tooverpower substantive rights and substantial justice. The humanistrule that procedure should be the handmaid, not the mistress, of legaljustice compels consideration of vesting a residuary power in Judgesto act ex debito justitiae where the tragic sequel otherwise would bewholly inequitable. Justice is the goal of jurisprudence, processual,as much as substantive.”It is clear from the principles as stated by the Apex Court that proceduraldefects which are curable, should not be allowed to defeat substantiverights. Of course, exceptions to the same have also been pointed out.9. This is a case where the appeal was accepted and an interim orderof stay of execution of the decree was passed and it is an admitted case thatthe appeal was accepted based on the copy of the last paragraph of thejudgment and the certificate. At no point of time, any defect was pointedout and the matters were allowed to stand. The appellants were nevercautioned of any defect by the Registry also. Time was granted to produceprinted copy of the judgment. Apart from that, Section 148 of the C.P.C.grants absolute discretion to the court to enlarge the period prescribed or AFA 64/1997-7-allowed by the court even though the period originally fixed or granted mayhave expired. It is therefore clear that the court was having ample power togrant extension of time to produce the decree, since at the time of filing theappeal it was a competent one. It is clear from the facts that it was only aprocedural defect which could have been cleared by the appellants, if put tonotice. As held by the Apex Court, “procedure, a handmade to justice,should never be made a tool to deny justice or perpetuate injustice, by anyoppressive or punitive use.” It is not a case where this procedural defect isnot rectified even after it is pointed out and due opportunity given forrectifying it. There was no deliberate or mischievous act on the part of theappellants also. There is nothing to show that the rectification of the defectwould affect the case on merits or will affect the jurisdiction of the court. Itis to be noticed that when the appeal was presented it was a competent oneand was accepted by this court. It is not a case where any specificconsequence has been provided for non compliance. Even though sub-rule(2) of Rule 6-A of Order XX C.P.C. provides that as soon as a decree isdrawn, the last paragraph of the judgment shall cease to have the effect of adecree for the purpose of execution or for any other purpose, it is evidentfrom the facts of this case that appeal was filed before the decree was drawnup. Therefore, when the appeal was filed, it was a competent one. In AFA 64/1997-8-C.M.P. No.1087/1988, two months time for production of printed copy ofthe judgment was also granted by this court on 13.1.1988. Going by thepower conferred under Section 148 C.P.C., it is evident that this court hadpower to grant enlargement of time to produce the printed copy. LearnedSenior Counsel also pointed out that the entire records were before thiscourt which include the decree itself. Therefore, the dismissal of C.M.P.Nos.4008/97 and 4316/1997 was not in order, particularly in the light of theprinciples stated by the Apex Court. It is true that Order XLI Rule 1mandated that the memorandum of appeal shall be accompanied by a copyof the decree appealed from and (unless the appellate court dispensestherewith) of the judgment on which it is founded. But as noted above, inthis case the appeal was filed with the certificate under Rule 6-A of OrderXX C.P.C. with the last paragraph of the judgment. Therefore, the rigor ofOrder 41 Rule 1 that the appeal shall be accompanied by a copy of thedecree obviously does not apply here and on that ground the appeal couldnot have been dismissed as not maintainable. One more important aspect isalso to be noticed here. Order 41 Rule 1 C.P.C. Has been amended by Act46 of 1999. The amendment reads as follows:“(1) Every appeal shall be preferred in the form of a memorandumsigned by the appellant or his pleader and presented to the court or to AFA 64/1997-9-such officer as it appoints in this behalf. The memorandum shall beaccompanied by a copy of the judgment.”The legislative intent is clear from the amendment.10. The decision of the Madras High Court in AIR 2000 Madras 283is directly on the point. After referring to the various decisions of the ApexCourt, the learned judge held in paragraph 11 as follows:“ From the above decisions, it is clear that in a proper case, thecourt can give time for production of copy of decree and powersunder Sections 148 and 151 of the Code of Civil Procedure alsocould be invoked and if a copy of decree is produced within thetime granted, the appeal must be deemed as presented properly.In this case, the lower court has exercised the discretion that dueto urgency, the respondents must be given some time forproduction of copy of decree. Even though the argument of thelearned counsel for the petitioners that the court has no power todispense with the production of copy of decree for filing theappeal is correct, that does not follow that the lower court has nopower to grant time for production of copy of decree. By grantingtime, it is not dispensing with the prosecution of copy of decree.”Hence, it is clear that in a proper case the court can give time for productionof the copy of decree and that the powers under Section 148 and 151 C.P.C.are available. As held by the Madras High Court, by granting time, thecourt is not dispensing with the production of copy of the decree. Thecourt had ample power under Sections 148 and 151 C.P.C. to grant time forproduction of the copy of the decree. In this case also, C.M.P.No.4316/1997 was filed under Sections 148 and 151 C.P.C. to enlarge the AFA 64/1997-10-time for production of the decree. The request was only to grant time forproduction of the copy of decree and for not dispensing with the same andthe decree was produced before this court also. It is therefore clear that itwas not a case where there was lack of power to entertain the appeal.11. Shri Jimmy John contended that because of the provisions undersub-rule 2 of Rule 6A once the decree is drawn up, the last paragraph of thejudgment as certified by the court, will cease to have effect for the purposeof execution or for any other purpose. We fail to see how the same willaffect the prosecution of the appeal here. The respondents had not raisedany objection regarding the non-maintainability of the appeal at any timebefore its hearing. The office had also not pointed out any defect and therewas no occasion for the appellants to defy any direction to cure such defectalso. Therefore, once the appeal was accepted and having been filedproperly and as the same was pending without any complaint regarding itsnon-maintainability from any quarters, and when the appellants sought toinvoke the power of this court conferred under Sections 148 and 151 C.P.C.,we are of the view that it is a clear case where the said power had to beexercised and the appellants should have been granted time as requested forand the delay, if any, should have been condoned and the decree shouldhave been accepted. We also note that if such an opportunity is denied to AFA 64/1997-11-the appellants, substantial injustice will be caused to them as the merits ofthe appeal is left without any adjudication. The substantive rights of theparties ought not to be defeated by such exercise.In the result, the appeal is allowed and s the judgment of thelearned Single Judge is set aside. We allow C.M.P.4008/1997 to dispensewith the production of printed copy of the judgment and C.M.P.No.4316/1997 to enlarge the time for production of the decree. As thecertified copy of the decree has been produced, it is ordered that the appealwill be treated as competent. Therefore, we direct the appeal to be disposedof on merits. Status-quo as on today will be maintained till the disposal ofthe appeal.The appeal is allowed as above. No costs.(Kurian Joseph, Judge.)(T.R. Ramachandran Nair, Judge.)kav/ AFA 64/1997-12-