Smt. Prem Lata W/O Sh. Raj Kumar ... vs Smt. Anaro Devi W/O Sh. Khairati ...
2003 Latest Caselaw 51 Del

JUDGMENT

S.N. Kapoor, J.

1. Heard.

2. This appeal is directed against the judgment dismissing the appeal of the daughters-in-law, the present appellant, of the respondent Anaro Devi.

3. The brief facts are: the property in question undisputedly stands in the name of Anaro Devi. There is no dispute about the fact that she got some money from her husband. There is nothing to indicate that the money, which was given to her by her husband, was given with an idea to purchase a property benami in her name. Neither the husband nor the sons of the respondent claimed any share. The daughters in law cannot claim any share and right to residence in that house for the premises in question are not their matrimonial home and they are supposed to live along with their husbands at matrimonial homes. The learned appellate court took this view on merits but noticed that the appeal was barred by time and dismissed the same.

4. A preliminary objection has been taken by the respondent on the ground of maintainability of the appeal before the appellate court that in the entire appeal neither there was any ground relating to condensation of delay nor there was any explanation for it. The submission of the respondent is that the trial court delivered the judgment on 27th May, 1998, the petitioner filed filed an appeal on 30th July, 1998 without any application for condensation of delay and without filing any certified copy of the decree sheet. After the final arguments were concluded on 7th March, 2001 the appellant sought to file a copy of the decree. On 19th May, 2001 the appellate court dismissed the appeal on the ground of limitation as well as on merits. The claim of the respondent is that since there was delay of two year in filing the certified copy of the decree and since Order 41 Rule 1 CPC is mandatory in nature in absence of any application of condensation of delay, appeal could not be possibly entertained. Even in the present appeal the petitioner had applied for certified copy of the judgment of the appellate court. It was delivered on 2nd June, 2001. The period expired on 19th August, 2001. On 24th August, 2001 the petitioner moved an application before the appellate court to prepare the decree sheet after 82 days from obtaining certified copies. On 29th September, 2001 after one month and five days of above application the petitioner filed the present appeal immediately after obtaining the summons of the executing court on 3rd September, 2001 and when there application for preparing decree sheet before the ADJ was dismissed on 28th September, 2001. On 5th November, 2001 the decree sheet was prepared but the petitioner had not obtained the decree sheet.

5. It is also contended that under Order 20 Rule 6A CPC, an appeal could be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment could be treated as the decree. Therefore, non preparation of decree sheet was no bar to file an appeal though this is an enabling provision. It is submitted that this enabling provision does not override the right of a party to prefer an appeal as and when decree is drawn up. It is contended that this has to be seen in the light of the legal provision enunciated in Jyotsna Holding Pvt. Ltd. vs. Union of India to the effect that no event or circumstance arising after the expiry of limitation can constitute sufficient cause though there might be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal when the limitation has arisen.

6. On the other hand the appellant relies on Puran Singh vs. Jagtar Singh . A learned single Judge of that Court took the view that no doubt the provisions of Order 41 Rule 1 requiring filing of copy of decree along with memo of appeal are mandatory, yet the appeal should not be dismissed once the appeal had been entertained. The relevant portion of paragraph 5 reads as under:-

"...... It is not disputed that the provisions of O. XII. R 1 of the Code, are mandatory. But once an appeal is duly entertained without the production of a certified copy of the decree sheet with it and neither the memorandum of appeal is rejected, nor returned, as provided under O. XLI, R. 3 of the Code, then, subsequently, the appeal could not be dismissed on the ground that at the time of the presentation of the appeal the same was not accompanied with a certified copy of the decree under appeal, because by that time the stage for dismissing the appeal for non compliance of the provisions o O. XLI, R 1 of the Code had already passed. At that stage, the appellant could only be directed to file the certified copy of the decree under appeal after obtaining the same from the trial court. Thus, the approach of the lower appellate court in this behalf was wrong, illegal and misconceived."

7. It may be mentioned here that sub rule (2) rule 6A of Order 22 provides that "...... decree is draw up as expeditiously possible and in any case within 15 days from the date on which the judgment is pronounced but where the decree is on within time aforesaid the court if requested so to do by a party desirous of appeal against the decree certify that a decree has not been drawn and indicate in the certificate the reasons for delay and thereupon 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 purpose of rule 1 of Order 41 be treated as decree. Decree sheet was not filed when the certificate was issued. It appears decree might have been placed on file subsequently and when the decree sheet has been placed on file there was no question of issuing any certificate nor there would be any question for pressing any such application. However, this fact shows that the appellants were not as vigilant as they should have been.

8. It appears, in view of the submission of learned counsel for the parties, that two views are possible: firstly, a view which is technical in the sense that the decree sheet has not been filed in time and therefore, the appeal is not maintainable; and secondly, the view as is adopted in Puran Singh v. Jagtar Singh (supra) that the appellant could be directed to file the certified copy of the decree under appeal after obtaining the same from the learned trial Court and the approach should be justice oriented.

9. It may be relevant here to mention that the Supreme Court in United Bank of India v. Naresh Kumar and ors., AIR 1997 SC 3 made the following observations:-

"Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."

10. In view of the above observations, I am in favor of adopting a latter line and I find that the learned trial Court has erred in dismissing the appeal on the ground of limitation particularly in view of the facts obtained in this case.

11. As regards merits, there is virtually no force at all in the submission of learned counsel for the appellant that the property was purchased by HUF funds, though it is not disputed that the money was given by the husband of the respondent. If money was given by the husband of the respondent, it may have two colours: one, that it will exclusively belong to her; and second, that it was kept with her for the welfare of the entire family. Unfortunately, in this case the two daughters-in-law (appellants) of the respondent could not have any knowledge about the colour of money in the hands of their mother-in-law (the respondent). There may be some substance in the submission of learned counsel for the appellants that it was a collusive suit filed by the respondent (mother-in-law) by making her two sons, i.e. husbands of the appellants party and the husbands of the appellants did neither appear before the learned trial Court nor the Appellate Court nor here in this Court.

12. Learned counsel for the appellants further submits that this suit is a device to throw out the appellants on the streets. The question is not whether it is a device to throw the appellants out of the home, the question is where is their (appellants) matrimonial home for, their husbands are not residing in Delhi and admittedly they are doing business in Calcutta. Therefore, the view taken by the learned Appellate Court is not unjustified. If they have any right of residence or maintenance, they could claim it from their husbands. They have not filed any suit for maintenance etc. under Hindu Adoption and Maintenance Act.

13. Learned counsel for the appellants at this stage submits that the execution of the proceedings may be stayed till the appellants file petition under Section 18 of the Hindu Adoption and Maintenance Act (in short 'the Act'). In view of the peculiar circumstances of the case, I think that this Court should accept this prayer and should give the appellants two months' time to move appropriate application under Section 18 of the Act against their husbands.

14. For the aforesaid reasons, while dismissing the appeal, it is ordered that the execution shall not proceed for a period of two months to allow the appellants to seek appropriate relief before appropriate forum.

15. With these observations, the appeal stands disposed of.