Bharat Khandasari Udyog Vs. Khandasari Inspector, Roorkee West Circle and anr. - Court Judgment

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- - so the supreme court allowed the appeal, set aside the order of the appellate authority as well as the order of the high court.order  1. petitioner seeks special leave to appeal to this court against the order dated january 7, 1991, of the high court of judicature at allahabad, dismissing its writ petition no. 984 of 1989. we have heard shri vijay hansaria for the petitioner and shri a.k. srivastava for the respondents. special leave granted.  2. this appeal raises a controversy which could well have been avoided by the deputy sugar commissioner who is the appellate authority under the sugarcane (purchase tax) rules, 1961, [rules for short]. the appellant preferred an appeal against the order dated february 8, 1989 of the assessing officer (the khandsari inspector) before the deputy sugar commissioner, western region, meerut, respondent 2. the memorandum of appeal was rejected in limine on the ground that it did not comply with the requirements of rule 24(3) of the rules in that an attested copy of the order appealed against did not accompany the memorandum of appeal.  3. rule 24(3) requires: “24. (3) the memorandum of appeal shall be accompanied by an attested copy of the order of assessment of imposing penalty or a notice of demand of interest, if any.”  4. the appellate authority appears to have felt bound to dismiss the appeal as in its view the non-production of the order appealed against along with the memorandum of appeal entailed the passing of no order in the appeal other than the one of its dismissal. the writ petition filed by the appellant was also dismissed by the high court on january 7, 1991 holding that rule 24(3) was mandatory and the circumstance that the memorandum of appeal was not accompanied by a copy of the order by itself justified the dismissal. the high court said: “the above provision, therefore, being a mandatory one, it was incumbent on the petitioner to have filed attested copy of the assessment order and non-compliance of the same results in dismissal of the appeal. the same ought to have been done before the appellate court. i find no error of law in the impugned order.”  5. rule 24(3) is on the familiar pattern of order 41 rule 1, cpc. the requirement of the production of the attested copy of the order of assessment was, no doubt, mandatory. in the absence of an attested copy of the order, the filing of the appeal, on the analogy of the principles informing the interpretation of order 41 rule 1, civil procedure code, would be “incomplete, defective and incompetent”. but that is not to say that the appellate authority, wherever the attested copy was not produced along with the memorandum of appeal was prevented from calling upon the appellant to make good the deficiency and was compelled to dismiss the appeal. a similar argument was noticed by this court in the context of order 41 rule 1 in jagat dhish bhargava v. jawahar lal bhargava1: “... the argument is that order 41, rule 1, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of order 41 with regard to the filing of the decree being of a mandatory character....”  6. this court held that what is relevant is the circumstance in which the non-filing of the copy of the decree came about and that mere absence of the copy of the decree without going into the justification for the non-filing, would not automatically entail the consequence of dismissal. repelling the contention raised in that case, this court said: “... it would be difficult to accede to the proposition thus advanced in a broad and general form... ... it would thus be clear that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under order 41 rule 1. appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects ....” (emphasis supplied)  7. in jogdhayan v. babu ram2 this court held that where in an appeal time had been granted for filing of the certified copy of the decree, the court had power to enlarge that time under section 148, civil procedure code.  8. the point to note and emphasise is that the non-filing of an attested copy of the order along with the memorandum of appeal does not compel the appellate authority to dismiss the appeal as if it had no other option. the appropriate thing to do in such a case is to call upon the appellant to make good the defect within the time to be specified. if cause for non-compliance is not shown and the defect not made good, then alone the appeal should be dismissed.  9. we may refer to the observations of venkatarama ayyar, j. (as he then was) [in regard to such matters of procedure] in a.s. subbaraj v. m. muthiah3: “the decisions under order 33 rules 2 and 5 are even more directly applicable to the present case. order 33, rule 2 provides that every application for permission to sue ‘in forma pauperis’ shall be signed and verified in the manner prescribed for the signing and verification of pleadings and order 33 rule 5 provides that the court shall reject an application for permission to sue as a pauper when it is not framed in the manner prescribed by rule 2. these provisions thus correspond to section 83(1) and section 85 of the act. the authorities on order 33 rules 2 and 5 clearly establish that before exercising the power of dismissal under order 33 rule 5 the court should give an opportunity to the party to amend the petition and that the order of dismissal should follow only when there is thereafter a failure to amend ....” “... it is true that there is no express provision in the act conferring any power on the election commission to permit amendment. but such a power is inherent in all bodies exercising judicial functions ....” (emphasis supplied)  10. we may also recall the observations of this court in owners and parties interested in m.v. ‘vali pero’ v. fernandeo lopez4: (scc p. 680, para 18) “rules of procedure are not by themselves an end but the means to achieve the ends of justice. rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. the reason is obvious. procedure is meant to subserve and not to rule the cause of justice ....”  11. in the circumstances of this case we think the appellant should be afforded an opportunity to rectify the defect. we accordingly allow this appeal, set aside the order dated april 25, 1989 of the appellate authority as well as the order dated january 7, 1991 of the high court in w.p. no. 984 of 1989 and remit the appeal to the appellate authority for a fresh disposal in accordance with law. the appellant shall file before the appellate authority an attested copy of the order dated february 8, 1989 of the assessing officer within two months from today. if the attested copy of the order is so filed, the appeal shall be proceeded with and disposed of on the merits, deeming it to be a properly constituted appeal and no objection as to the bar of limitation shall also be permitted to be raised. the civil appeal is disposed of accordingly. no costs. † arising out of slp no. 7510 of 1991 1 (1961) 2 scr 918: air 1961 sc 832 2 (1983) 1 scc 26: (1983) 1 scr 844 3 air 1954 mad 336 : (1953) 2 mlj 577 : 66 mlw 908 4 (1989) 4 scc 671: 1989 supp (1) scr 187

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