J.D.Jain And Others vs M/S Sharma Associates & Others
2010 Latest Caselaw 2973 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.330/2010 & FAO(OS) 374/2010
      & CM No.10331/2010 & CM No.8519/2010

J.D.Jain and Others                 .....Appellant
                       Through      Mr D.R.Bhatia, Adv.
                 Versus
M/s Sharma Associates & Others            ....Respondent
                       Through      Mr Arun Mohan, Sr Adv.
                       with Mr Lalit Bhardwaj, Mr Nalin
                       Tripathi and Mr Ajay Kumar, Advs.

                                Date of hearing : May 31, 2010
%                               Date of Decision: June 4 , 2010
      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE A.K.PATHAK

      1. Whether reporters of local papers may be
         allowed to see the Judgment?
      2. To be referred to the Reporter or not?
      3. Whether the Judgment should be reported
         in the Digest?

VIKRAMAJIT SEN, J.

Section 10 of the Delhi High Court Act has been invoked

in this Appeal in respect of the challenge to the Judgment of the

Learned Single Judge dated 2.2.2010 erroneously nomenclatured by

the Appellant as an "Order". There is no gainsaying that the

impugned decision is amenable to judicial scrutiny by means of a

Regular First Appeal (RFA) and therefore the question is whether a

First Appeal from Order (FAO) should be entertained. Learned

counsel for the Appellant states that the Learned Single Judge has not

ordered for the preparation of a Decree; and none has been prepared.

Therefore, Section 10 of the Delhi High Court Act is available to the

Appellant. We are unable to subscribe to this view as it ignores a very

significant amendment brought into the Code of Civil Procedure,

1908. In Rule I of Order XLI of the CPC the word "decree" has been

substituted by the word "judgment". Facially, this Rule now ordains

that every Appeal shall be preferred in the form of a Memorandum

signed by the Appellant or his Pleader presented to the Court or to

such officer as it appoints in his behalf, and that the Memorandum

shall be accompanied by a copy of the Judgment. A copy of the

Judgment is in fact on the Appeal record and has been perused by us.

The Learned Single Judge has discussed the matter threadbare and

returned the finding that the suit is barred on the principles of

limitation as well as on the application of Order II Rule 2 of the CPC.

The intent of the Legislature is writ large and is

unequivocal and unambiguous. An Appeal should no longer await the

preparation of a Decree. Therefore, the argument of counsel for the

Appellant that a Regular First Appeal cannot be filed in the absence of

a "Decree" is erroneous. These proceedings are dismissed as not

maintainable, without prejudice, however, to the rights of the

Appellant to file a Regular First Appeal (RFA) in accordance with law,

if it so chooses. There shall be no order as to costs.

VIKRAMAJIT SEN, J.

A.K.PATHAK, J.

June 4, 2010 nt