jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: In the instant petition wherein the Court’s supervisory jurisdiction under Art. 227 of the Constitution was invoked to consider the issue that whether right to appeal is lost by a party or denied thereof by the appellate court in circumstances where such party fails to file a certified copy of the order appealed against; the Bench of Javed Iqbal Wani, J.*, stated that the statutory substantive right of appeal vested in a party cannot remain illusory or nugatory by giving undue importance to procedural law and that the breach of the procedural rule cannot be said to take away a litigant’s right to file appeal when a statute confers such a right specifically. The Court further pointed out that the object of the Courts is to decide the rights of the parties and not to punish them for mistakes which are made in the conduct of the cases. “It has been also the consistent position of law that Courts do not exist for the sake of the discipline but for the sake of deciding matters in controversy on merits effectually and conclusively”.

The Court of Additional District Judge (Fast Track) Budgam, which was the appellate court for the instant case, dismissed the petitioners’ (then appellants) appeal holding that the certified copy of the impugned order was not filed within time, and that since the appeal had been preferred without filing of the certified copy of the order, thus it is not an appeal in the eyes of law.

Perusing the facts of the case, the Court relied on several precedents laid down by the Supreme Court on the issue of a party’s right to appeal. It was noted that a right of appeal is not a natural or an inherent right, but the right of appeal is the creature of the statute meaning thereby that there is no right to file an appeal unless it is given clearly and in express terms by the legislation. 

The Court pointed out that the expression “appeal” has not been defined in the Civil Procedure Code, however, as per the dictionary meaning an appeal has been meant to be an application to higher authority for reconsideration of a decision of lower authority or a subordinate court of law. The CPC expressly confers a right of appeal, be it appeals from the original decree or appeals from orders as contained in Section 96 and Order 43 of the CPC respectively, and every such appeal has to be heard by a court authorised to hear appeals from the decisions of the court having passed such decrees or orders.

The Court also highlighted Order 41, CPC which enumerates the requirements for an appeal to be validly presented.

The Court opined that the appellate court ought not to have dismissed the appeal of the (appellants) petitioners merely on account of late submission of certified copy of the order appealed against, because by doing so, the appellate court has non-suited the (appellants) petitioners on one hand and on the other hand declined to decide the appeal on merits. “The appellate Court manifestly has caused failure of justice in the matter which cannot be countenanced in law”.

Thus, the Court held that the impugned order of dismissal by the appellate court, is not legally sustainable.

[Ghulam Din Bhat v. Jana, 2023 SCC OnLine J&K 746, decided on 20-09-2023]

Advocates who appeared in this case :

For petitioners- J. H. Reshi, Advocate

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