Rajasthan State Ganganagar Sugar Mills Ltd. and Others Vs State of Rajasthan and Others

@JUDGMENTTAG-ORDER

Arun Bhansali, J.@mdashThis writ petition is directed against the judgment dated 24.7.1989 passed by the SDO, Jodhpur; the judgment dated 26.8.1991 passed by the Revenue Appellate Authority (II), Jodhpur (''RAA'') and the judgment dated 3.7.1996 passed by the Board of Revenue, Rajasthan, Ajmer (''BOR''), whereby the SDO dismissed the suit filed by the appellants under Order VII, Rule 11 CPC and the appeals filed by the petitioners before the RAA and BOR have been dismissed as incompetent on account of non-filing of copy of the decree alongwith the memo of appeal.

2. The petitioners filed a suit for declaration, possession and cancellation of mutation and other entries in the revenue record as well as for compensation in respect of the land ad measuring 21 Bigha 14 Biswa.

3. An application under Order VII, Rule 11 CPC was filed by the defendant Abhay Prakash inter-alia on the ground that the suit was barred by limitation.

4. The SDO, after hearing the parties, by its judgment dated 24.7.1989 came to the conclusion that the plaintiffs were not competent to file suit under Section 183 of the Rajasthan Tenancy Act, 1955 (''the Act'') and the suit was barred by limitation and consequently, while accepting the application filed by the defendant under Order VII, Rule 11 CPC rejected the plaint.

5. Feeling aggrieved, the petitioners filed appeal under Section 223 of the Act before the RAA. The memorandum of appeal was accompanied by copy of the judgment only and an application was filed under Order XLI, Rule 1 CPC r/w Section 151 CPC praying that the appellant may be exempted from filing the decree and the appeal may be treated as competent.

6. The RAA, after hearing the parties on the objections and merits, came to the conclusion that the application for obtaining the copy was filed on 2.8.1989, wherein copy of decree was not demanded and in another application filed by the appellant on 22.9.1989, there was a note that the applicant had not filed copying stamps and pie paper and has not pursued the application and therefore, the application may be filed. Whereafter, the RAA also observed that the petitioners-appellant failed to produce any certificate from the SDO that the decree has not been prepared and in view of the provisions of Order XLI, Rule 1 CPC and Rule 30 of the Revenue Courts Manual Part-2, came to the conclusion that in absence of decree, the appeal was not maintainable and dismissed the same.

7. On a second appeal filed before the BOR, the BOR by its judgment dated 3.7.1996 reiterated the findings regarding the requirement of decree and came to the conclusion that regarding the fact the decree has not been prepared, no affidavit has been filed and no evidence has been produced and therefore, as the copy of the decree was not filed alongwith the memo of appeal, the appeal was incompetent and consequently, dismissed the appeal.

8. The petitioner has also placed on record a order dated 18.11.1996 (Annex. 7) appears to have been passed by the SDO, Jodhpur inter-alia indicating the following:--

9. From a perusal of the order, it appears that the order dated 24.7.1989 was modified/amended and it was indicated that the decree be framed and it was observed that the decree has been issued and Annexure-8, a copy of the decree has been filed.

10. It is submitted by learned counsel for the petitioners that both the RAA and the BOR fell in error in dismissing the appeal filed by the petitioners, inasmuch as, from Annexures - 7 and 8 now it is apparent that no decree was framed and therefore, in absence whereof the appeals could not be dismissed by them.

11. With reference to the provision of Order XX, Rule 6A CPC, as it then existed, it was submitted that an appeal may be preferred against the decree without filing a copy of the decree in a case where the decree has not been drawn up and therefore, the RAA and the BOR were not justified.

12. Reliance was placed judgment in the case of Sunder Lal v. Sugan Chand and Ors. : 1997(3) WLC (Raj.) 146.

13. It was submitted that the order passed by the BOR and RAA be set-aside and the matter was remanded back to the RAA to decide the appeal on merits.

14. Learned counsel for the respondents duly supported the judgments passed by the RAA and BOR. It was submitted that the provisions of Rule 30 of the Revenue Courts Manual are mandatory, wherein a copy of the decree is required to be filed alongwith memo of appeal, failing which the appeal is incompetent and therefore, the RAA was justified in dismissing the appeal.

15. Learned counsel for the respondents further emphasised the fact that the petitioners did not take any steps to get the decree framed and the action which was taken by them after the judgment passed by the BOR could have been taken by them even prior to filing of the appeal and/or during the pendency of the appeal as well, which was not done by them and therefore, the petitioners cannot be permitted to take refuse regarding the fact that the decree was not framed.

16. Reliance was placed on the judgment of the Hon''ble Supreme Court in the case of Udayan Chinubhai Vs. R.C. Bali, .

17. I have considered the submissions made by learned counsel for the parties.

18. From a perusal of the record, it is apparent that the SDO rejected the plaint as barred by limitation and also on account of competence of the plaintiffs to file suit under Section 183 of the Act while accepting the application filed by the defendants under Order VII, Rule 11 CPC. A order rejecting the plaint is included in the definition of decree under Section 2(2) CPC, which defines decree and provides that it shall be deemed to include the rejection of a plaint. However, even in a case of rejection of a plant, the trial court is required to draw a decree.

19. In the present case, the issue arises as to when in view of Annexures-7 and 8 once it is apparent that the decree was not drawn by the trial court after passing of the judgment on 24.7.1989 could the appeal filed by the petitioner before the RAA without copy of decree can be said to be competent under the provisions of Rule 30 of the Revenue Courts Manual and Order XLI, Rule 1 CPC.

20. The Order XX CPC deals with the judgment and decree and Order XX, Rule 6A CPC as it then existed before it underwent amendment in the year 1999 and 2002 reads as under:--

"R. 6A. Last paragraph of judgment to indicate in precise terms the reliefs granted.--(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.

(2)- Every endeavour shall be made, to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon-

(a)- an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of rule 1 of Order XLI, be treated as a decree; and

(b)- so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose:

Provided that where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit."

21. The provision which was inserted by way of 1976 amendment, envisaged a situation where a decree is not drawn up after the judgment is passed and the parties are required to file appeal even before a formal decree is framed and provided that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1 of Order XLI be treated as a decree.

22. The very fact that the provision was introduced by way of amendment in the year 1976 and specifically provided for a contingency like the present one, it appears that the said aspect has not been brought to the notice of the RAA and the BOR.

23. Besides the above, the Hon''ble Supreme Court in Phoolchand and Another Vs. Gopal Lal, amendment also observed that in an exceptional circumstance in absence of copy of decree, the appeal can be maintained and also observed that once it was brought to the notice of the appellate court that the decree has not been framed, the appellate court should have directed the trial court to do the needful. The relevant part of the judgment reads as under:--

"(5) Learned counsel for Phool Chand appellant has attacked the findings of the High Court on all the three points. He first contends that as a copy of the decree was not filed along with the memorandum of appeal the appeal was incompetent and relies in this connection on the decision of this Court in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, . In that case it was observed that every memorandum of appeal has to be accompanied by a copy of the decree appealed from, that this requirement of O. XLI, R. 1 of the Code of Civil Procedure is mandatory and in the absence of a copy of the decree the filing of the appeal would be incomplete, defective and incompetent. That no doubt is the correct position in law; but as was pointed out in that case, there may be circumstances where an appeal may be competent even though a copy of the decree may not have been filed along with the memorandum of appeal. One such exceptional case was dealt with in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, . We consider that the present case is another exceptional case where in the absence of the copy of decree the appeal could be maintained. We have already indicated that the trial court did not frame a formal decree when it varied the shares and naturally Gopal Lal was not in a position to file a copy of the decree when he presented the memorandum of appeal to the High Court. Even when time was granted by the High Court and Gopal Lal moved the trial court for framing a formal decree, the trial court refused to do so. In those circumstances it was impossible for Gopal Lal to file a copy of the formal decree. It is unfortunate that when the matter was brought to the knowledge of the High Court it did not order the trial court to frame a formal decree; if it had done so, the appellant could have obtained a copy of the formal decree and filed it and the defect would have been cured. We do not think it was necessary for Gopal Lal to file a revision against the order of the trial court refusing to frame a formal decree, for Gopal Lal''s appeal was pending in the High Court and the High Court should and could have directed the trial court in that appeal to frame a decree to enable Gopal Lal to file it and cure the defect. In such circumstances we fail to see what more Gopal Lal could have done in the matter of filing a copy of the decree. The fact that the trial court refused to frame a formal decree cannot in law deprive Gopal Lal of his right to appeal. The defect in the filing of the appeal in the circumstances was not due to any fault of Gopal Lal and it cannot be held that he should be deprived of the right to appeal, if he had it, simply because the court did not do its duty. We therefore agree with the High Court that in the circumstances the absence of the copy of decree would not deprive Gopal Lal of his right to appeal."

24. From the above, it is apparent that it is the duty of the appellate court to direct the trial court to do the needful. However, in the present case both the RAA and the BOR instead of either calling for record of the SDO and/or calling for a report therefrom observed that the petitioners failed to produce any certificate about lack of framing of decree and did not file any affidavit in support of the submission, which apparently has been done only with a view to dispose of the appeal on technical ground.

25. So far as the judgment in case of Udayan Chinubhai (supra) cited by learned counsel for the respondents is concerned, the judgment pertains to the proviso of Section 12(2) of the Limitation Act, 1963 which specifically provides that in computing the period under Section 12 the time requisite for obtaining copy of a decree any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be included.

26. The present is not a case of the applicability of provisions of Section 12 of the Limitation Act, inasmuch as, the petitioners have filed the appeal immediately on passing of the judgment by the SDO and was not seeking benefit of provisions of Section 12 of the Limitation Act for any delay in filing of the appeal and therefore, the judgment has no application to the present circumstance.

27. So far as another plea raised by learned counsel for the respondent regarding in-action on part of the petitioners seeking framing of the decree is concerned, suffice it to say that it is the duty of the Court to frame the decree and admittedly when the decree has not been framed by the SDO, the petitioners, who promptly filed the appeal against the judgment dated 24.7.1989 cannot be punished for non-framing of the decree and/or cannot be blamed for not taking action.

28. In view of the above discussion, the writ petition filed by the petitioners is allowed; the judgment dated 26.8.1991 (Annex. 5) passed by the Revenue Appellate Authority and the judgment dated 3.7.1996 (Annex. 6) passed by the Board of Revenue are set-aside; the matter is remanded back to the Revenue Appellate Authority, Jodhpur to hear and decide the appeal on merits. It would be required of the petitioner to now produce a copy of the decree within a period of four weeks before the RAA.

29. In view of the fact that the matter pertains to the year 1989, the RAA is directed to decide the appeal as expeditiously as possible.

30. The parties shall remain present before the RAA on 15.4.2015.

31. No order as to costs.