Jagat Dhish Bhargava vs Jawahar Lal Bhargava and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 222 of 1960

Decision Date: 5 December 1960

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In this matter, the petitioner Jagat Dhish Bhargava challenged an appeal that the respondents, Jawahar Lal Bhargava and others, had filed against a decree dated 12 March 1954. The decree arose from a suit for specific performance that the trial court dismissed on that date. On 24 March 1954 the respondents applied to the court for a certified copy of both the judgment and the decree. Although the judgment was certified and a memorandum of costs was supplied, the decree itself had not been drawn up, and consequently a certified copy of the decree could not be provided at that time.

Nevertheless, the respondents proceeded to file an appeal before the High Court on 30 August 1954, attaching only the certified copy of the judgment and the memorandum of costs. The High Court admitted the appeal under Order 41, Rule 11 of the Code of Civil Procedure, 1908. On 23 December 1958 the petitioner served a notice on the respondents indicating that he intended to raise a preliminary objection during the hearing, contending that the appeal was incompetent because it had been filed without the required certified copy of the decree as mandated by Order 41, Rule 1. The following day, 24 December 1958, the respondents moved the trial court requesting that the decree be drawn up, but the record of the case was then in the High Court, making such a drawing‑up impossible at that stage.

During the hearing of the appeal, the petitioner reiterated the preliminary objection. The High Court, after considering the situation, issued an order on 15 December 1959 granting the respondents a period of one month to have the decree drawn up and to obtain a certified copy. The order also directed that the record be sent to the trial court for the necessary preparation. Dissatisfied with this order, the petitioner filed an appeal to the Supreme Court, arguing that the High Court should have dismissed the appeal outright because the lack of a certified copy of the decree rendered the appeal manifestly incompetent under Order 41, Rule 1.

While the petition was pending before the Supreme Court, the respondents succeeded in obtaining a certified copy of the decree on 23 December 1959 and filed it before the High Court on the same day. The petitioner then contended that the filing of the appeal should be deemed to have occurred on that later date, which, in his view, made the appeal time‑barred under the limitation provisions. The Supreme Court examined the matter in the light of Order 41, Rule 1, which is mandatory, and observed that an appeal filed without the certified copy of the decree is incomplete, defective, and incompetent. The Court noted that the trial court’s failure to draw up the decree and the High Court’s initial lack of careful scrutiny contributed to the predicament, but that the High Court’s order of 15 December 1959, which allowed the respondents time to obtain the decree, was a proper exercise of its discretion.

Relying on Section 12(2) of the Indian Limitation Act, 1908, the Supreme Court held that the period spent by the respondents in obtaining the certified copy of the decree after the application for such a copy was filed could be counted as part of the limitation period. Consequently, even if the appeal were treated as having been filed on 23 December 1959, it remained within the permissible time limit. The Court affirmed that Order 41, Rule 1 is a mandatory requirement and that an appeal filed without the certified decree is fundamentally defective, but it also recognized that the High Court’s direction to allow the respondents a reasonable period to comply with this requirement was appropriate under the circumstances.

Thus, the Supreme Court held that the High Court’s order was correct and that the appeal should not be dismissed on the ground of incompetence. The petitioner's contention that the appeal was time‑barred was rejected, and the appeal was allowed to proceed, acknowledging the respondents’ right to be protected despite the procedural irregularities that had occurred earlier in the case.

The Court observed that the trial Court had been negligent in failing to draw up a decree, and that the High Court’s office had not exercised the level of care required in scrutinising the appeal. These shortcomings, the Court said, had substantially contributed to the unfortunate situation that had arisen. Because of these deficiencies, the respondents were entitled to protection. The Court further noted that the issue raised by the appellant had become merely academic and technical in light of the subsequent developments. The certified copy of the decree had been filed on 23 December 1959; even if the appeal were treated as having been filed on that date, it remained within the prescribed time limit. Under section 12(2) of the Limitation Act, the respondents were permitted to count the period spent in drawing up the decree after the application for a certified copy as part of the time taken to obtain that certified copy. The Court referred to the authorities Tarabati Koer v. Lala Jagdeo Narain (1911) 15 C.W.N. 787, Bani Madhub Mitter v. Matungini Desai (1886) I.L.R. 13 Cal. 104 (F.B.), Gabriel Christian v. Chandra Mohan Missir (1936) I.L.R. 15 Pat. 284 (F.B.), Jayashankar Mulshankar Mehta v. Mayabhai Lalbhai Shah (1951) 54 B.L.R. 11 (F.B.), Gokul Prasad v. Kunwar Bahadur (1935) I.L.R. 10 Luck. 250, and Umda v. Rupchand (1926) 98 I.C. 1057 (F.B.). The Court also relied on Rodger v. Comptoir d'Escompte de Paris (1871) L.R. 3 P.C. 465.

The judgment concerned Civil Appeal No. 222 of 1960, which was filed against the order dated 15 December 1959 of the Punjab High Court, Circuit Bench, Delhi, in R.F. Appeal No. 77‑D of 1954. Counsel for the appellant were G. S. Pathak and B. C. Misra, while counsel for respondents 1 to 7 were Mukat Behari Lal Bhargava and J. P. Goyal. The decision was delivered on 5 December 1960 by Justice Gajendragadkar. The short question of law that arose for determination on special leave was whether the appeal preferred by respondents 2 to 7 against the appellant and against respondents 8 and 9 in the High Court of Punjab was legally competent. This question emerged under unusual circumstances. An agreement for the sale of one‑third of a one‑fourth share in a property had been executed between Gokal Dhish Bhargava and the appellant Jagat Dhish Bhargava. Gokal Dhish Bhargava instituted suit against the appellant and the pro‑forma respondents 8 and 9 for specific performance of that agreement before the Senior Civil Judge, New Delhi (Civil Suit No. 684/128 of 1949‑50). The trial court dismissed the suit on 12 March 1954. While the suit was pending, Gokal Dhish Bhargava fled; his son Jawahar Lal Bhargava (respondent 1) and Chunni Lal Bhargava were entered as his legal representatives. After the dismissal of the suit and before the appeal was lodged in the High Court, Chunni Lal Bhargava died. Consequently, respondents 2 to 7, as legal representatives of the deceased, joined respondent 1 in filing an appeal against the decree in the High Court.

The appeal was filed in the Punjab High Court on 29 July 1954. The appellant’s memorandum of appeal was accompanied by the judgment that dismissed the original suit and by the taxed bill of costs, which had been endorsed on the reverse side of the final page of the judgment. The central question before the High Court, and now before the present Court, was whether the appeal was correctly presented. The record showed that on 24 March 1954 the respondents, who were thereafter referred to as the respondents, applied to the trial court for a certified copy of both the judgment and the decree that had been passed in the suit for specific performance. The trial court supplied the certified copy of the judgment together with the bill of costs, but it disclosed that no decree had been drawn up and consequently no certified copy of a decree could be provided. As a result, the appeal was submitted only with the certified copy of the judgment and the bill of costs, lacking a certified copy of the decree. On 2 August 1954 the Assistant Registrar of the High Court returned the memorandum of appeal to the respondents’ counsel, indicating that the appeal was defective because the decree had not been filed and that the defect needed to be remedied. The counsel for the respondents then re‑filed the appeal on 16 August 1954, attaching an endorsement stating that the trial court had prepared only a memo of costs and had not drawn up a decree, and that in view of this the appeal should be deemed properly filed. The High Court accepted this explanation, registered the appeal as number 77‑D of 1954, and later placed it for a preliminary hearing under Order 41, rule 11 of the Code of Civil Procedure before Justice Dulat, who admitted the appeal on 30 August 1954. A notice of the appeal was accordingly served on the appellant and the nominal respondents.

When the appeal later became ready for hearing, it was scheduled to be heard before the Circuit Bench on 26 December 1958. On 23 December 1958 the appellant served a notice on the respondents’ counsel stating the intention to raise a preliminary objection that the appeal was incompetent because the decree required by Order 41, rule 1 had not been filed together with the memorandum of appeal and the certified judgment. The following day, 24 December 1958, the respondents moved the trial court for the preparation of the decree; however, the record had already been transmitted to the High Court, making it impossible for the trial court to draw up a decree, and therefore the motion was ineffective. The appeal, nevertheless, did not proceed to hearing on the scheduled date of 26 December 1958. On 29 December 1958 the respondents moved the Court seeking a declaration that the appeal should be considered maintainable because the memo of costs prepared by the trial court, read together with the concluding paragraph of the judgment, might satisfy the requirement of a decree. In the alternative, they asked that the trial‑court record be sent to enable preparation of a decree for filing with the appeal. The application was taken before Justice Bishan Narain, who ordered that it be heard by the Bench that would later consider the appeal.

The respondents filed a petition before the Court requesting that the appeal be held maintainable. They argued that the memorandum of costs prepared by the trial Court, together with the concluding paragraph of the judgment, could be considered sufficient to satisfy the requirement of a decree. In the alternative, they asked that the trial Court’s record of the suit be sent to them so that a proper decree could be drawn up and then filed together with their appeal in the High Court. The application was taken before Justice Bishan Narain, who directed that the matter be listed before the Bench that was scheduled to hear the appeal. The appeal eventually came up for hearing before Justices Falshaw and Chopra on 8 December 1959. At that hearing the appellant raised a preliminary objection, contending that the appeal was not competent because it did not comply with Order 41, rule 1, and urged that the appeal be dismissed as incompetent. The High Court did not accept this objection. Instead, it held that the appropriate procedure was to give the respondents a period of one month to obtain a decree in the proper form from the lower Court and to secure a copy of that decree. Accordingly, the Court ordered that the record, which had been received by the High Court after the appeal had been admitted under Order 41, rule 11, be sent back to the lower Court without delay. The order dated 15 December 1959 was subsequently challenged by the appellant by way of a special leave petition.

For the appellant, counsel Mr Pathak argued that the appeal filed before the High Court was plainly and manifestly incompetent, and that the High Court was therefore in error in refusing to dismiss it on that ground. The law governing Order 41, rule 1 is unambiguous. The rule requires that every appeal be presented in the form of a memorandum signed by the appellant or his pleader, and that the memorandum be filed with the Court or with the officer appointed by the Court for that purpose. In addition, the appeal must be accompanied by a copy of the decree from which the appeal is taken, as well as a copy of the judgment on which the appeal is based. While rule 1 empowers the appellate Court to dispense with the filing of the judgment, it does not give the appellate Court authority to dispense with the filing of the decree. Even in cases where a decree contains several distinct and severable directions enforceable against one or more defendants, the Court may allow only those portions of the decree that are directly relevant to the appeal to be filed, but that issue does not arise in the present case. Accordingly, the appeal is fundamentally an appeal against the decree rather than merely against the judgment, a principle that underlies the limitation period prescribed in Article 156 of the Limitation Act.

The Limitation Act prescribes a period of ninety days for appeals of this nature and provides that the limitation period commences from the date of the decree that is the subject of the appeal. Consequently, the legal requirements that the decree be filed together with the memorandum of appeal are mandatory, and the absence of the decree renders the appeal incomplete, defective and incompetent. Nevertheless, this procedural defect does not finally resolve the question raised by the appellant before the Court. In the present matter the respondents applied to the trial Court on 24 March 1954 for a certified copy of both the judgment and the decree. The trial Court did not supply a copy of the decree because no decree had been prepared; instead, the respondents received a copy of the judgment and a taxed bill of costs that was endorsed on the reverse side of the last page of the judgment. The respondents filed these documents along with their memorandum of appeal, but the filing of these papers does not satisfy the mandatory requirement of Order 41, Rule 1. In order to assess the effect of this defect in the presentation of the appeal, the Court must consider the procedural rules governing the preparation of a decree. The position on this point is unequivocal. Section 33 of the Code of Civil Procedure mandates that, after the case has been heard, the Court shall pronounce a judgment, and that a decree shall follow on the basis of such judgment. Order 20, Rule 3 provides, among other things, that the judgment shall be dated and signed by the judge in open Court at the time of pronouncement. Furthermore, Rule 4, sub‑rule (2) requires that the judgment contain a concise statement of the case, the points for determination, the decision on those points and the reasons for that decision. Rule 6 of the same Order prescribes the contents of the decree, stipulating that the decree must agree with the judgment and must contain the particulars specified therein. Rule 7 requires that the decree bear the date on which the judgment was pronounced and directs that, once the judge is satisfied that the decree has been drawn up in accordance with the judgment, the judge shall sign the decree. Thus it is clear that the responsibility for preparing the decree in the present case rested with the office of the trial Court, and it was the judge’s duty to examine the decree when it was drawn up and to sign it if satisfied that it had been properly prepared. Except in jurisdictions where a dual system operates, the litigant or his lawyer does not play any material or important role in the preparation of the decree; indeed, the process of preparing the decree lies beyond the litigant’s control. Accordingly, there is no doubt that the failure to draw up a decree in the present suit amounted to negligence on the part of the trial Court’s office in the discharge of its duties.

The Court observed that the trial court’s office had failed to carry out its duty of drawing up the decree and that this negligence went unnoticed even by the trial judge himself. When the appeal was later presented before the High Court, the High Court’s office likewise did not examine the appeal with the care that was required. As previously indicated, the appeal passed the stage of admission under Order 41 Rule 11 without the defect being brought to the notice of the judge who admitted it. The record shows that the respondents had applied for a certified copy of both the judgment and the decree, but they received only a certified copy of the judgment together with the bill of costs. Believing in good faith that those documents would satisfy the requirements of Order 41 Rule 1, the respondents filed them along with the memorandum of appeal. Before the appeal came up for actual hearing before the High Court, the appellant gave notice to the respondents of his intention to raise a preliminary objection that the appeal had not been properly filed; however, as already pointed out, the respondents’ attempt to move the trial court to draw up the decree proved ineffective. Ultimately, the High Court, in the interests of fairness to the respondents, allowed them time to obtain a certified copy of the decree and to file it before the Court, and accordingly the High Court passed the order that is now under appeal. The appellant contends that this order is manifestly erroneous in law and maintains that the only order that could and should have been made was to dismiss the appeal as incompetent under Order 41 Rule 1. That problem has become academic because, after the High Court’s decision, the respondents actually obtained a certified copy of the decree on 23 December 1959 and filed it in the High Court on the same day. This fact immediately raises the question of whether the appeal, which has undeniably been completely and properly filed on 23 December 1959, was filed within the prescribed time. If it appears that, on the date the decree was filed, the presentation of the appeal was timely, then the appellant’s objection to the propriety or correctness of the High Court’s order would be purely technical and academic. The answer to whether the presentation of the appeal on 23 December 1959 was in time depends upon the construction of Section 12, subsection (2) of the Limitation Act. It has already been noted that the period prescribed for filing the present appeal is ninety days from the date of the decree. Section 12, subsection (2) provides, inter alia, that in computing the period of limitation “the time requisite for obtaining a copy”.

In this matter, the Court examined the effect of section 12, sub‑section (2) of the Limitation Act, which expressly provides that “the time requisite for obtaining a copy of the decree shall be excluded.” The Court therefore needed to determine what period could legitimately be regarded as having been taken for obtaining the certified copy of the decree in the present case. The Court observed that when a decree is not prepared immediately after a judgment is pronounced, two distinct situations may arise. In the first situation, an aggrieved litigant may apply for the certified copy of the judgment and the decree before the decree has been drawn up. In the second situation, the litigant may apply for the decree after it has already been prepared.

The Court explained that in the former situation, where the litigant has made a proper application and has done everything within his power to obtain the necessary copies, the period required for obtaining the copies must include not only the time taken for the actual supply of the certified copy but also the time taken by the Court or the relevant office to draw up the decree after the application was made. In other words, the interval during which the decree is being prepared, after the litigant’s application on the date of the judgment, is to be treated as part of the time needed to obtain the certified copy of that decree. The Court noted that the learned counsel for the respondent fairly conceded that there was a settled body of judicial opinion on this point, and that, faced with a substantial array of authorities supporting that view, he did not contest the validity of the approach adopted in those cases. The Court then listed the authorities that affirmed this position, namely Tarabati Koer v. Lala Jagdeo Narain, Bani Madhub Mitter v. Mathungini Dassi & Ors. (Full Bench), Gabriel Christian v., Chandra Mohan Missir (Full Bench), Jayashankar Mulshankar Mehta v. Mayabhai Lalbhai Shah (Full Bench), Gokul Prasad v. Kunwar Bahadur & Ors., and Umda v. Rupchand & Ors. (Nagpur Full Bench).

The Court then turned to the second situation, where an application for a certified copy is made after the decree has already been drawn up. Here, the Court observed that there existed a sharp difference of opinion among the various High Courts. The Bombay, Calcutta and Patna High Courts appeared to hold that the period taken in drawing up the decree should be counted as part of the time required to obtain the certified copy, whereas some other High Courts adopted the opposite view. The Court stressed that, despite these divergent positions, every court endeavoured to achieve justice between the parties. Nevertheless, the Court clarified that this specific point of difference was not the issue on which the present appeal turned.

Consequently, the Court concluded that, when the respondents filed the certified copy of the decree in the High Court on 23 December 1969, the entire interval between the date on which the application for the certified copy was made and the date on which the decree was actually signed had to be excluded under

Section twelve, sub‑section (2) applied, and consequently the filing of the appeal on twenty‑third December 1959 was within the prescribed time. Although more than five years had elapsed since the judgment was pronounced, the respondents could not be held principally responsible for this extensive delay. The trial Court had failed to prepare the decree, and the relevant department of the High Court had neglected to address the defect in the presentation of the appeal at the initial stage; both shortcomings substantially contributed to the present difficult situation. In such circumstances the litigant is entitled to protection from the default or negligence of the Court or its officers in performing their duties. As Cairnes, L. C. observed in Rodger v. Comptoir, one of the earliest and highest duties of all Courts is to ensure that the Court’s act does not cause injury to any of the parties. Accordingly, in view of the later filing of the certified copy of the decree in the High Court, the question raised by the appellant became merely technical and academic. The counsel for the respondents sought to contend that the application filed on twenty‑fourth March 1954 was not truly for a certified copy of the decree but rather for a certified copy of the judgment and the bill of costs. This contentions were wholly untenable. The language of the application unmistakably indicated that it sought a certified copy of both the judgment and the decretal order, and subsequent events demonstrated that a certified copy of the decree was indeed supplied to the respondents pursuant to that application. An additional argument suggested that the respondents should have approached the trial Court for the drawing up of a decree as soon as they discovered that no decree had been prepared. While it may be presumed that the respondents might have taken that step, where a dual system does not exist it is unreasonable to argue that it is the litigant’s duty to remind the Court or its office of its obligation to draw up a decree after the judgment is pronounced. Even if decrees, when prepared, are shown to the parties’ lawyers, the actual preparation of the decree remains the function of the Court and its staff, and it would be unfair to penalise a party for the office’s default by asserting that the party should have moved the Court for the decree’s preparation.

In this case, the Court held that the appellant could not properly blame the respondents for any default that would warrant the dismissal of their appeal. Consequently, the Court concluded that the appeal filed by the respondents on 23 December, as reported in (1) (1871) L.R. 3 P.C. 465, 475 1959, was both timely and proper, and therefore could be considered and disposed of according to the applicable law. The Court recognised that the respondents had no control over the circumstances that led to the appeal’s admission under Order 41, Rule 11, and that, because of the decision now under review, it might not be necessary for the appeal to undergo that procedural step again. Justice Dulat, who heard the application for admission, was satisfied that the appeal merited admission, and the Court found no need to require the present appeal to repeat the formality prescribed by Order 41, Rule 11. While this approach was admittedly unusual, the Court observed that, given the facts of the case, it could not be said that the order issued by the High Court was unfair or unjust. The Court then turned to the technical objection raised by the appellant, who contested the validity and propriety of the order under appeal. The appellant argued that Order 41, Rule 1 was mandatory and that an appeal filed only with a memorandum of appeal and a certified copy of the judgment, without the decree, should be dismissed as incompetent, because the rule required the filing of the decree. The Court found it difficult to accept this broad and categorical view. It noted that if, at the time the appeal was lodged, the trial Court had already drawn up a decree and the appellant had failed to apply for it within the prescribed time, the appeal would indeed be incompetent and dismissal would be justified. However, the Court distinguished that situation from the present one, where, at the time the appellate Court received the appeal, the trial Court had not yet drawn up a decree. In such circumstances, if the appellant had applied for a certified copy of the decree, the only deficiency in the appeal would be its prematurity, since the appeal is founded on the existence of a decree. The Court explained that, if the High Court, upon careful examination, discovered this defect, it could return the appeal to the appellant, directing him to supply the certified copy of the decree once it became available. In the present case, the appeal had already been admitted, albeit through an oversight, and the Court therefore considered the appropriate course of action in light of these principles.

In this case, the Court observed that if the appellant has not yet produced a certified copy of the decree, the only fair and logical step would be to postpone the hearing of the appeal and to order the appellant to submit the certified copy as soon as it is made available to him. In such a circumstance, the Court further held that the High Court would be entitled, and indeed would have a duty, to direct the subordinate Court to prepare the decree without any unnecessary delay.

The Court then considered the opposite situation, namely where a decree has already been drawn up and the appellant subsequently files an application for a certified copy of that decree. In that event, the appellate Court should return the appeal to the appellant as defective. Once the appellant files the certified copy, the Court may then examine the question of limitation on its merits.

The Court found that the difficulties in the present matter stemmed from two separate failures. First, the trial Court did not draw up the decree as required by the Code. Second, the High Court’s office failed to notice this defect and to take appropriate action at the initial stage before the appeal was admitted under Order 41, rule 11. Because of these combined lapses, the Court concluded that no rigid, universally applicable rule can be prescribed for dealing with appeals that are defectively filed under Order 41, rule 1. Each case must be dealt with on its own facts, and appropriate orders must be fashioned according to the specific circumstances.

The Court emphasized that the most important measure in cases of defective presentation of appeals is to scrutinise the appeal carefully at the earliest stage after it is filed and to require the appellant to remedy any defects. Accordingly, the Court held that the appellant was not justified in challenging the propriety or the validity of the order passed by the High Court, because, in the circumstances already described, that order was manifestly fair and just. The High Court had recognized that it would be unfair to punish the appellant for the mistake of the trial Court and for its own oversight, and therefore it allowed time for the respondents to obtain a certified copy of the decree before proceeding with the appeal.

Finally, the Court noted that the Punjab High Court has expressed conflicting views in its reported decisions on the issue of appeals filed without a certified copy of the decree. Some judgments have dismissed such appeals as defective and have applied the mandatory language of Order 41, rule 1 without considering whether the trial Court’s failure to draw up the decree is relevant. The Court cited cases such as Gela Ram v. Ganga Ram(1), Municipal Committee, Chiniot v. Bashi Ram(2), Mubarak Ali Shah v. Secretary of State(3) and Nur Din v. Secretary of State(4) as examples of this approach.

The Court noted that several reported decisions of the Punjab High Court had taken the view that an appeal filed without a certified copy of the decree was defective and therefore ought to be dismissed, relying on the mandatory language of Order 41, Rule 1. The cases cited for this approach included Gela Ram v. Ganga Ram (1), Municipal Committee, Chiniot v. Bashi Ram (2), Mubarak Ali Shah v. Secretary of State (3), Nur Din v. Secretary of State (4), Hakam Beg v. Rahim Shah (5), Fazal Karim v. Des Raj (6) and Banwari Lal Varma v. Amrit Sagar Gupta (7). In contrast, the Court observed that other authorities held it would be fair and just to adjourn the hearing of the appeal so that the appellant could obtain a certified copy of the decree and present it before the appellate Court. The decisions supporting this view were Manoharlal v. Nanak Chand (8), Mt. Jeewani v. Mt. Misri (9) and Sher Muhammad v. Muhammad Khan (10). The Court expressed that it would have been preferable for a Full Bench of the High Court to resolve this inconsistency, but no such full‑bench decision has yet been issued. Consequently, the Court held that the competence of an appeal must be determined on the facts of each individual case, and appropriate orders should be made at the earliest stage after the appeal is presented. If a question of limitation is contested, it may be referred for a judicial decision. After considering these principles, the Court affirmed that the order of the High Court was correct. Since the decree under appeal had already been filed by the respondents before the High Court on 23 December 1959, the High Court was directed to proceed to hear the appeal on its merits and decide it according to law. No order as to costs was made, and the appeal was dismissed.