Raveendranathan v. Sajina Kannoli and others

OP(C) NO. 1698 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** ## **OP(C) NO. 1698 OF 2021** **AGAINST THE ORDER TO RETURN THE APPEAL BASED ON THE DEFECT NOTED BY THE** **REGISTRY DATED 08.09.2021 & 18.09.2021 IN THE UNNUMBERED APPEAL** ## **PETITIONER/APPELLANT:** **RAVEENDRANATHAN, AGED 70 YEARS S/O.MANDODI UNICHUNDAN @ APPUKKUTTAN, NADUVATTOM AMSOM AND DESOM, BEYPORE P.O., KOZHIKKODE-673 015, AT PRESENT RESIDING AT RAVI OIL MILLS, MATHOTTOM, ARAKKINAR P.O., KOZHIKODE-673 028.** **BY ADVS. B.G.BHASKAR BIJU ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SAJINA KANNOLI,**| |---|---| ||**AGED 52 YEARS**| ||**W/O.LATE DILEEP KUMAR, MANDODI HOUSE, NADUVATTOM AMSOM,**| ||**BEYPORE P.O., KOZHIKKODE-673 015.**| |**2**|**ATHUL MANDODI DILEEP,**| ||**AGED 25 YEARS**| ||**S/O.LATE DILEEP KUMAR, MANDODI HOUSE, NADUVATTOM AMSOM,**| ||**BEYPORE P.O., KOZHIKKODE-673 015.**| |**3**|**ANAGH MANDODI DILEEP,**| ||**AGED 21 YEARS**| ||**S/O.LATE DILEEP KUMAR, MANDODI HOUSE, NADUVATTOM AMSOM,**| ||**BEYPORE P.O., KOZHIKKODE-673 015.**| **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE** ## **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C) NO. 1698 OF 2021 2 ## **JUDGMENT** ## **Dated this the 05[th] day of October, 2021** The grievance highlighted in this Original Petition is regarding the manner in which an appeal memorandum and interlocutory application was returned without numbering by the District Court, Kozhikode. The appeal memorandum and the interlocutory application were returned noting the following defects; i. The full address of the parties are not furnished in the cause title of the appeal memorandum and the interlocutory application. ii. The Section under which the appeal is filed and the court fee paid, is not mentioned. iii. The decree copy is not produced. 2. Thereupon, the learned Counsel for the appellant gave a detailed explanation as under; Address of the parties is not to be shown in the cause title, but only in the body of the appeal OP(C) NO. 1698 OF 2021 3 memorandum vide Form No.2 and 5, Rules 12 and 14 of the Civil Rules of Practice. Address of the parties to an application need not be shown at all. Only the rank of the parties is required to be shown vide Form 13 Rule 39 of Civil Rules of Practice. The section of the court fees has been added. The High Court has laid down as early as on _**Reetha v. Paul and others** [_ _**2014 (4) KHC 599]**_ that the decree copy is not necessary for filing the appeal. The decree will be prepared by the lower court only some time after the judgment is pronounced. It has been stated in the appeal memo that the decree will be produced as and when it is obtained as per the application already made. Please see Order 41 Rule 1 as amended in 1976. Order XX Rule 6A. The learned Counsel also requested to post the matter in open court, if clarification is required. 3. The explanation with respect to defect Nos.2 and 3 were accepted and the appeal OP(C) NO. 1698 OF 2021 4 memorandum was returned again, noting that the first defect is not cured. Hence, this Original Petition. 4. The learned Counsel referred to Rule 12 of the Civil Rules of Practice, stipulating that the memorandum of appeal shall be headed with a cause title setting out the name of the courts to and from which the appeal is brought, the names of the parties, separately numbered and described as appellants and respondents, and also the full cause title of the suit or matter in the lower courts as in Form No.2. The other relevant rule, viz, Rule 15 is extracted hereunder; _“15. Names, etc., of parties. — The full name, age, residence, address and description of each party, and if such is the case, the fact that a party sues or is sued in a representative character, shall be set out at the beginning of the plaint, original petition, or memorandum of appeal as in Form No. 5 but need not be repeated in the subsequent proceedings in the_ OP(C) NO. 1698 OF 2021 5 _same suit, appeal or matter. The description shall include the surname, father's, mother's, husband's or karanavan's name as the case may be and such other particulars as may be necessary to identify the person. This applies also to parties subsequently added.”_ A conjoint reading of Rules 12 and 15 and scrutiny of Form Nos.2 and 5 makes it abundantly clear that in the cause title of the appeal memorandum, only the name of the parties, described as plaintiffs and defendants or petitioners/respondents, as the case may be, need be shown. The full name, age, residence, address and description of each party has to be set out at the beginning of the memorandum of appeal as in Form No.5. Being so, I find merit in the contention that defect No.1 was noted without knowing the distinction between the requirements under Rules 12 and 15 of the Civil Rules of Practice. As contended, when the explanation to a defect calls for the interpretation or application of a legal OP(C) NO. 1698 OF 2021 6 provision, it would be appropriate to given an opportunity to the Counsel to clarify the position by addressing the court. The explanation regarding defect No.2 and 3 having been accepted, I do not intend to delve further, though there is substance in the contention that the casual manner in which the defects were noted should be deprecated. Needless to say that defect No.3, regarding non-production of decree copy, ought not have been raised in view of the judgment in **Reetha (supra)** . As far as the interlocutory application is concerned, Rule 39 leaves no room for doubt that the cause title is to be drawn up as provided in Form No.13 and only the names and ranks of the applicants need be shown. 5. Having heard the learned Counsel and having carefully scrutinized the relevant provisions of the Civil Rules of Practice, I am convinced that the explanation is liable to be accepted and the appeal and the interlocutory application, numbered. OP(C) NO. 1698 OF 2021 7 In the result, the Original Petition is allowed by setting aside the objection. The appeal and interlocutory application shall be numbered on representation. The petitioner is granted 10 days time for representing the appeal. **Sd/-** **V.G.ARUN JUDGE** NB/5-10 OP(C) NO. 1698 OF 2021 8 ## **APPENDIX OF OP(C) 1698/2021** ## **PETITIONER’S EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE APPEAL MEMO WITH THE ENDORSEMENTS DATED 08.09.2021 AND 18.09.2021 MADE BY THE DISTRICT JUDGE, KOZHIKKODU.** **EXHIBIT P2 A TRUE COPY OF THE INTERLOCUTORY APPLICATION IA NO.1/2021 IN UNNUMBERED APPEAL MEMORANDUM OF 2021, ON THE FILES OF DISTRICT COURT, KOZHIKKODU, RETURNED ALONG WITH THE APPEAL MEMO.** ## **RESPONDENT’S EXHIBITS: NIL** True Copy P.A to Judge