Discussion: (1) Order XLI, Rule 1, 3 & 9 CPC. (2) Section 5 and 14 of the Limitation Act. (3) Duty of Appellate...........

Case Laws November 14, 2023

Discussion:

(1) Order XLI, Rule 1, 3 & 9 CPC.

(2) Section 5 and 14 of the Limitation Act.

(3) Duty of Appellate Court to determine territorial and pecuniary jurisdiction at initial stage.

(4) An act of the court shall prejudice no man (Actus curiae neminem gravabit).

According to Order XLI, Rule 1 of the Code of Civil Procedure, 1908 (“CPC”), every appeal is required to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf, along with a copy of the decree appealed from. It is also a requirement of law that the memorandum of appeal should set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and such grounds shall be numbered consecutively. Under Rule 3 of Order XLI, CPC, it is envisaged that where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court, or be amended then and there; and where the Court rejects any memorandum, it shall record the reason for such rejection and if the memorandum of appeal is amended, the judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. Under Rule 9 of the same Order, it is further provided that where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose.

A survey of the aforesaid provisions cited from the CPC emphasizes the onerous duty of the Court, including the Officer of the Appellate Court or any staff member of the Court (clerk of court/chief ministerial officer) who has been authorized and assigned the task to accept the presentation of the memo of appeal before admission and diligently examine the memo of appeal, and judgment and decree, including all supporting documents, to ensure that everything is in order, and, if there is any doubt in the mind of the concerned Court clerk/official with regard to jurisdiction, they should raise the objection(s) and bring it to the attention of the Court to resolve it; and if the Court concludes at the time of admission that the appeal has been filed at the wrong forum, whether due to a lack of territorial or pecuniary jurisdiction, or some other ancillary or incidental reasons, the memo of appeal should be promptly returned to the appellant to elect the right remedy and forum to avoid rendering the decision of the Court coram non judice at the end of the day.