Judgment:
T.N. Singh, J.
1. For last three years, this appeal unfortunately has been awaiting a short order. Even at this stage, I might mention that between 20-7-1982 and 11-7-1986, nothing happened and the time was totally and uselessly wasted. Only on 28-7-1986 when it came up before me, the appeal was admitted for hearing and on that date itself. I took the view that this matter has to be disposed of expeditiously and fixed hearing of the appeal on merit which had to take place on 8-12-1986. Because one of the respondents, indeed an instrumentality of the first respondent. State of Madhya Pradesh was not served on that date, 1 ordered that Government Advocate, Gwalior be noticed through S.P.C. that this appeal shall be heard and finally disposed of on 12th January, 1987. Accordingly, I have heard counsel today on both sides and disposed of this matter finally by the short order as follows.
2. When the appeal was admitted, one of the substantial questions of law framed at that time was whether the impugned judgment was not violative of Sub-rule (4) of Rule 11, Order 41, C.P.C. The question has to be answered today in appellant's favour for reasons to follow and I quote the relevant provision :
'Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.'
3. It may be mentioned that in 1977, the aforequoted provision was brought on the Statute Book by C. P. C. (Amendment) Act, 1976 with a singular and salutary object. The Legislature considered it necessary to expressly circumscribe the power of the appellate Court, other than a High Court, to dismiss summarily an appeal by requiring such a Court, when doing so, to render a reasoned judgment and also to draw up a decree in accordance with the judgment. In the instant case, the question to be considered is whether the two-fold violation of the provision has rendered void the impugned judgment. It is not disputed that no decree has been drawn up in this case while it has to be considered still whether the 'ground' which is given in the judgment for dismissal of the appeal was sufficient compliance of the requirement of the provision. In so far as the question as to whether non-drawal of a decree has vitiated the judgment is concerned, the decision in Jagat Dhish, AIR 1961 SC 832 (though rendered prior to the amendment) is still relevant, according to me. It was held in that case that when decree was not drawn up in any case, it will be the duty of the High Court to direct the Court below to draw up the decree because their Lordships took the view that the requirement of Rule 1 of Order 41, C.P.C. was mandatory and had to be fulfilled. A certified copy of the decree has to accompany a memorandum of appeal according to Rule 1 and as such, the appeal would not be in form and competent without there being before the Court certified copy of the decree appealed from when the appeal is heard. Thus, non-drawal of a decree in the instant case by the Court below would not vitiate the judgment, but it is not necessary in this case to make any direction to the Court below fordoing so for the simple reason that the judgment itself is not in accordance with the requirement of Sub-rule (4) itself, and has to be set aside.
4. I address myself, therefore, now to the only surviving contention. In construing the expression 'grounds', 1 would still read the necessity of giving due importance to the requirement in the selfsame provision of drawal of a 'decree' in accordance with the 'judgment'. A decree has to be a 'formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit' according to Section 2(2), C.P.C. When the rights of parties are sought to be conclusively delermined by any judgment rendered in accordance with Sub-rule (4) of Rule 11 aforesaid, I have no doubt that the 'grounds', though 'recorded in brief, must be 'grounds' dealing with, and disposing of, the contentions agitated in the plaint or W. S. and in the memorandum of appeal. Indeed, contention orally pressed by counsel and disposal thereof must be manifested on the face of the judgment. Because reasonable opportunity must be allowed to the litigant to press his appeal, summary dismissal of appeal under Sub-rule (4) has to be eschewed when rights of constitutional complexion are agitated inasmuch as summary 'judgment', 'recording in brief its grounds' cannot be rendered judicially in such matters. The legislative object of the new provision, according to me, was to do at once two things to effectuate the constitutional imperative of Article 39A. One, to make the process of justicing rational, reasonable and accountable, two, to short-circuit litigative process by mandating the appellate Court to render reasoned judgment so that not only the unsuccessful appellant is enabled thereby to make up his mind whether to impugn the judgment or be satisfied therewith but to enable also the second appellate Court to make up its mind on the perusal of the reasons given in the impugned judgment as to whether that judgment warrants interference.
5. When the appellate Court does not even look at the trial Court's judgment to give its own reason as to why the reasons for the decision given by the trial Court have to be upheld, there would be evidently no disposal of the appeal by the appellate Court in terms of the said Sub-rule (4). In such a case, there would be total non-application of mind which would be writ large in the case of such an impugned judgment to appellant's grievance. And, that is what has evidently happened in this case. It is strenuously urged by Shri Balwant Singh that unreasonably and cryptically, on a sole and single ground the appeal was dismissed without even looking at the trial Court's judgment, or at the memorandum of appeal and indeed, there is no reference in the judgment to either pleadings or the evidence recorded in the case. What is obviously manifested in the impugned judgment is that the defence was accepted without testing its validity with reference to the claims made by the plaintiff. The case of the plaintiff was that in her Service Book, the date of her birth was wrongly recorded and she was wrongly retired.
6. The plaintiff, was a petty employee of the State at the lower rung of the ladder -- a cook in a State run hospital she was -- who had joined service in the year 1957. Her case was that her Service Book was prepared for the first time, admittedly, in 1970, wherein not only her date of birth, but her husband's name was also wrongly recorded. It is also her case that she made a representation to the appropriate authority for correction of the relevant entry in Service Book and in support of her case, she filed Ex. P/2, a certificate supporting her claim, issued by the Civil Surgeon, Gwalior, who examined her on 13-1-1981 and gave the opinion that she was aged between 52 to 53 years on that date. The appellate Court cryptically held that the entry in the Service Book must prevail because it was there and no importance has to be attached to the certificate of the Civil Surgeon. No other reason or 'ground' is given to deny relief to the plaintiff/appellant. Indeed, it does not appear that the reported decisions of the Apex Court cited and relied on by the plaintiff at the trial stage have been taken note of and the grievance made at para 7 of he memorandum of appeal that the trial Court wrongly distinguished those decisions also remained unconsidered. Nothing more need be said at this stage because I have not looked to the evidence or the pleadings as I am satisfied that the lower appellate Court has not disposed of the appeal in terms of Sub-rule (4) of Rule 11 of Order 41, C. P. C. and the appeal has to be reheard by that Court and disposed of on merits in the light of the observations and guidance set out here inabove.
7. For all the foregoing reasons, this appeal must succeed and is accordingly allowed. The impugned judgment is set aside and the matter is remitted to the Court of appeal below for rehearing and disposal according to law. There shall be no order as to costs in this Court in this appeal.
8. Because Additional Government Advocate, Shri Budawas was in a mood to make a submission in this appeal on merits to oppose the decision of the Court below, I have no doubt that the appeal has to be heard now by the lower appellate Court on merit and disposed of after hearing parties. Let the records be sent down forthwith to learned District Judge, Gwalior. The records must reach that Court on 20th January, 1987. Parties must appear before that Court on that date. The suit was filed by a petty menial of the State in the year 1981 and it is necessary to ensure that her case is heard with due expedition and if she is found entitled to any relief that must be given to her with utmost expedition.
9. The decision render in this case is preeminently fit to be circulated among the District Judges of the State for their guidance. It is submitted at the Bar that this practice is followed, in this Court and 1 am of the view that this is one of such cases in which the practice partakes the character of a constitutional imperative to effectuate the mandate of Article 39A of the Constitution. Indeed, there is no reported decision of this Court on the scope and import of the newly-inserted Sub-rule (4) of Rule 11 of Order 41, C.P.C. and lower appellate Courts must, therefore, have the necessary guidance administered to them with utmost expedition for the benefit of the litigant public and for retaining public confidence in the present system of administration of justice. Let Registry take necessary steps accordingly.