Therefore we find that it will be in the interests of all
the parties to a claim, especially the claimants that the copy of
the award, which should be filed along with the appeal as
envisaged in Rule 396 of the Rules should be authenticated and
should contain the particulars no.1 to 11 specified in Rule 254 of
the Civil Rules of Practice and therefore the free copy under
Section 168(2) cannot be accepted in substitute of the certified
copy. We find that issuing of copy of the judgement or award by
the court under Section 168(2) is not for the purpose of filing an
appeal and such an interpretation will not be in any way
beneficial to the parties, as the period of limitation runs from the
date of receipt of the copy. Therefore we do not find it necessary
to withdraw the directives contained in the judgment reported in
Habeeb Vs Sebastian supra.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
UNNUMB,MACA.No. 80 of 2011 ( )
SUNITHA SUKUMARAN, Vs RANJU, S/O.NANU,
Coram: T.R.RAMACHANDRAN NAIR,
A.V.RAMAKRISHNA PILLAI & P.V ASHA, JJ.
ZM.A.C.A No.80 of 2011
Dated this the 16th day of October, 2014
Citation;AIR 2015 Kerala 24
Whether an appeal filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as `the Act') should
be accompanied by a certified copy of the award/judgment or
whether it is sufficient to file the free copy issued under Section
168(2) of the Act, is the question referred to the Full Bench.
2. In the judgment reported in Habeeb v. Sebastian
T.C [ILR 2010 (4) Kerala 940], a Division Bench of this court,
after elaborately considering the various provisions in the Motor
Vehicles Act, Kerala Motor Vehicles Rules and Civil Rules of
Practice directed that all appeals preferred under Section 173 of
the Act after 1.1.2011 shall be accompanied by a certified copy
of the award and that appeals accompanied by free copy of the
award shall not be entertained after 1.1.2011.
3. Another Division Bench in its order dated 8.7.2011 in
an unnumbered MACA of 2011, found that the free copy of the
award is the statutory right of the claimant and therefore such
free copy issued must be held to be sufficient for all purposes
including filing of appeal and disagreed with the directives
issued in Habeeb v. Sebastian (supra). This Division Bench was
of the view that new generation enactments like Motor Vehicles
Act, the Family Courts Act, etc, do recognize the right of a
person to receive free copy of the decision rendered in the
litigation in which he is a party and that at least in respect of
such statutes which recognize such a right of the party to receive
a free copy,, such free copy should be held to be sufficient for all
purposes, and therefore the Tribunals which are constituted to
render rough and ready justice to the parties should be liberated
from the shackles of unnecessary procedural niceties The matter
is referred to the Full Bench under these circumstances.
4. In this context, an analysis of the various provisions
relating to the passing of award and the procedural formalities in
filing an appeal under the Act is necessary.
5. Section 168 of the Act provides that on receipt of a
claim for compensation, the Claims Tribunal shall, hold an
enquiry into the claim, with notice and opportunity of hearing to
the parties including insurer and may make an award
determining the amount of compensation which appears to it to
be just and specifying the person or persons to whom
compensation shall be paid and specifying the amount which
shall be paid by the insurer or owner or driver involved in the
accident. Section 168 (1) and (2) of the Act are as follows:
"168. Award of the Claims Tribunal.--(1) On receipt
of an application for compensation made under Section 166,
the Claims Tribunal shall, after giving notice of the application
to the insurer and after giving the parties (including the
insurer) an opportunity of being heard, hold an inquiry into
the claim or, as the case may be, each of the claims and,
subject to the provisions of Section 162 may make an award
determining the amount of compensation which appears to it
to be just and specifying the person or persons to whom
compensation shall be paid and in making the award the
Claims Tribunal shall specify the amount which shall be paid
by the insurer or owner or driver of the vehicle involved in the
accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for
compensation under Section 140 in respect of the death or
permanent disablement of any person, such claim and any
other claim (whether made in such application or otherwise)
for compensation in respect of such death or permanent
disablement shall be disposed of in accordance with the
provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the
award to the parties concerned expeditiously and in any case
within a period of fifteen days from the date of the award."
6. Section 173 of the Act provides that any person
aggrieved by an award of the Claims Tribunal may within 90
days from the date of the award prefer an appeal to the High
Court. Section 173 of the Act reads as follows:
"173. Appeals.--(1) Subject to the provisions of
sub-section (2), any person aggrieved by an award of a
Claims Tribunal may, within ninety days from the date of
the award, prefer an appeal to the High Court."
Section 176 of the Act enables the State Government to make
rules for various purposes mentioned therein including the form
and manner in which an appeal may be preferred against an
award of the Claims Tribunal. Section 176 reads as follows:
"176. Power of State Government to make rules:- A
State Government may make rules for the purpose of
carrying into effect the provisions of sections 165 to 174,
and in particular, such rules may provide for all or any of
the following matters, namely:-
(a) the form of application for claims for
compensation and the particulars it may contain, and the
fees, if any, to be paid in respect of such applications;
(b) the procedure to be followed by a Claims Tribunal
in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be
exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if
any) on payment of which an appeal may be preferred
against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be,
prescribed."
In exercise of the powers conferred under various provisions
including Section 176 of the Act, Government of Kerala has
issued the Kerala Motor Vehicle Rules, 1989 (hereinafter
referred to as "the Rules"). Chapter X thereof consisting of Rules
371-398A deals with the powers of the Claims Tribunal,
procedure to be followed for adjudicating the claims, passing of
award, the appellate remedy, fees prescribed, etc. Rule 396 of
the Rules provides for appeal against the decision of the claims
Tribunal which reads as follows:
"396. Appeal against the decision of Claims
Tribunal.--
(1) An appeal against the award of a Claims Tribunal
shall be preferred in the form of a memorandum stating
concisely the grounds on which appeal is preferred.
(2) It shall be accompanied by a copy of the judgment,
the award appealed against, and the fee prescribed in
sub-rule (3) of Rule 397.
7. Thus it can be seen that the memoranda of appeal
against the award of the Claims Tribunal has to be accompanied
by a copy of the judgment, the award appealed against as well as
the fees prescribed.
8. In this context it is necessary to have a look at Rule
392 of the Rules which provides for judgment as well as award
by the Tribunal. This Rule provides that the Claims Tribunal in
passing orders, shall record concisely in a judgment, the findings
on each of the issues framed and the reasons for such findings
and make an award specifying the amount of compensation to be
paid by the insurer, or the owner in case where the vehicle is not
insured and also the person or persons to whom compensation
shall be paid. Sub Rule 3 provides that the Claims Tribunal shall
furnish copies of the judgment to the Secretary of the Regional
Transport Authority, the registering authority and the licensing
authority concerned for taking necessary action. Sub Rule 4
provides that the record of judgment, in respect of claims
exceeding Rs.5000/-, shall contain the evidence which shall
either be verbatim or a reasonably complete and full memoranda
of testimony explaining the basis of compensation, the findings
on each such evidence and the reasons for such findings before
making an award specifying the amount of compensation. Rule
392 reads as follows:
"392. Judgment and award of compensation:- (1)
The Claims Tribunal in passing orders, shall record
concisely in a judgment, the findings on each of the
issues framed and the reasons for such findings and
make an award specifying the amount of compensation
to be paid by the insurer, or the owner in the case of
vehicles which are not insured and also the person or
persons to whom compensation shall be paid.
(2) Where compensation is awarded to two or
more persons the Claims Tribunal shall also specify the
amount payable to each of them.
(3) The Claims Tribunal shall furnish copies of
the judgment as required to be recorded under sub-rule
(1) to the Secretary of the Regional Transport Authority,
the registering authority and the licensing authority
concerned for taking such action as the authorities
consider necessary against the drivers, conductors or
owners or the vehicle involved in the accident.
(4) Notwithstanding anything contained in sub-
rules (1) and (2) the record of judgment shall, in respect
of claims exceeding five thousand rupees, contain the
evidence which shall either be verbatim or a reasonably
complete and full memoranda of testimony explaining
the basis of compensation, the findings on each such
evidence and the reasons for such findings, before
making an award specifying the amount of
compensation."
9. The procedure for filing an appeal is provided in Rule
396, as mentioned above. Rule 397 provides for the fees to be
remitted while filing the claim for compensation and for filing
appeal. Rule 398 provides that the rules relating to issue of
certified copies obtaining in the Civil Rules of Practice, Kerala
shall mutatis mutandis apply in the case of Claims Tribunal,
which reads as follows:
"398. Certified copies:- The rules relating to the
issue of certified copies obtaining in the Civil Rules of
Practice, Kerala shall mutatis mutandis apply in the case
of Claims Tribunal.
10. The procedure for issuing certified copies is provided
in Chapter VII of the Civil Rules of Practice, Kerala. Rule 239 (1)
provides that any person entitled to obtain a copy of any
proceeding or document filed in or in the custody of the Court,
shall present an application thereof as in Form Number 47
setting out the name of the applicant, his position in the suit or
proceeding if he is a party thereto, and the description of the
document of which copy is required. Provisions in Rule 239
relevant for the purpose of this case reads as follows:
239: Application for copies:- (1) Any person
entitled to obtain a copy of any proceeding or document
filed in or in the custody of the Court, may present an
application therefor as in Form No. 47 setting out the
name of the applicant, his position in the suit or
proceeding if he is a party thereto, and the description
of the document of which copy is required.
(3)Any party to the proceeding may, immediately
after the judgment or order is pronounced, apply orally
to the Court for a carbon copy or photostat copy thereof,
and, if the court so directs, a carbon copy or photostat
copy duly certified shall be issued to the party on his
making an application for an urgent copy under Rule
246 accompanied by the copying charges required by
Rule 248.
Provided that in cases where the State
Government or the Central Government is a party, a
carbon copy may be issued to the State Government or
the Central Government, as the case may be, by the
office free of cost, on receipt of a written requisition for
the same.]
11. Sub Rule 3 of Rule 239 of Civil Rules of Practice
provides for issuance of carbon copy, in case a party to the
proceedings orally applies to the court for the same immediately
after the pronouncement of the judgment or order and if the
court so directs and immediately thereupon that party submits
an application for an urgent copy thereof under Rule 246 and
remits the requisite court fee/charges as provided in Rule 248.
Rule 242 provides that a list of applications in which records are
received and the number of stamp papers required shall be
published in the notice board everyday and such list shall remain
suspended for 3 clear working days and that the applicant shall
supply the stamp paper called for, within the time fixed, failing
which application shall be struck off. Rule 244 provides that the
date for appearance of the applicant to receive the copy shall be
notified on the notice board. Rule 247 provides that the copies
notified in the notice board, shall be taken delivery within three
clear days. Rule 248 provides for copying charges to be supplied
in the shape of stamp papers/court fee stamp affixed in fullscap
paper. Rule 250 provides for production of stamp papers; Rule
253 provides that all copies furnished by the court shall be
certified to be true copy by the officer appointed for the purpose
and shall be sealed with the seal of the court. Rule 254 further
provides that every copy shall bear an endorsement by showing
the following particulars: Rules 253 and 254 read as follows:
253. Sealing and certificate:- All copies furnished
by the Court shall be certified to be true copies by the
officer appointed for the purpose and shall be sealed
with the seal of the Court.
254. Endorsement of copies:- Every copy shall
bear an endorsement initialled by the 21
[Fair Copy
Superintendent or the Examiner, as the case may be],
showing the following particulars:
1. Name of the Court.
2. Year and number of the suit or other
proceeding.
3. Name of the applicant.
4. Number and date of the application.
5. D ate of calling for stamp papers.
6. Date of production of papers.
7. Date of calling for additional papers.
8. Date of production of additional papers.
9. Date when copy was ready.
10.Date notified for appearance to receive the
copy.
11.Date when copy was delivered."
12. Thus on a reading of the provisions contained in
Chapter VII of the Civil Rules of Practice, Kerala, it can be seen
that all copies furnished by the court shall be certified to be true
copy and shall bear the seal of the court and such copies shall
have the endorsement relating to the name of the court, year and
number of the suit/other proceedings, name of applicant,
number and date of application, date of calling for stamp papers,
date of production of stamp paper, date of calling for additional
papers, date of production of additional papers, date when it was
ready, date notified for appearance to receive the copy and the
date when copy was delivered.
13. The carbon copy of a proceedings envisaged under
sub rule 3 of Rule 239 is to be issued on the basis of an
application by the party to the court immediately after
pronouncement of judgment/order and when the court issues a
direction in terms of such application and the party makes an
application for urgent copy under Rule 246 and remits the
copying charges. Rule 246 provides for preparation of all copies
of documents applied for in accordance with the serial order of
the applications and Rule 247 provides for delivery of copies,
after publication of the list where copy is ready for delivery in
the notice board. Rule 248 provides for copying charges to be
called for and supplied in the shape of court fee stamps/stamp
papers at the rate of one rupee for every 175 words. Rule 250
provides that the person producing stamp papers for copies shall
make an endorsement on the copy application showing the
number of stamp papers produced, and the examiner of copies
shall initial the same in token of receipt.
14. In this context the provisions contained in Rules 41
and 42 of Kerala High Court Rules, 1971, are also relevant,
which read as follows:
41.Papers to be filed with memoranda of appeals:-
Every memorandum of appeal shall be accompanied by as
many clear authenticated copies thereof as there are
respondents to be served and by two additional copies for
the use of the Court, by such papers as are referred to in
the Code with regard to appeals, by the fees prescribed for
service of notice on the respondents and by the particulars
for service as set out in Form No. 3:
42.Appeals barred by limitation:-
Every Memorandum of Appeal or other proceeding which is
presented after the expiration of the time limited by law,
shall be accompanied by a petition to excuse the delay and
as many copies thereof as there are respondents to be
served and by two additional copies for the use of the
Court, by the fees prescribed for service of notice of the
petition on the respondents and by the particulars for
service as in Form No. 3.
Under Rule 5(5) of the High Court Rules 'Code" means Civil
Procedure Code, 1908 or Criminal Procedure Code, 1898, as the case
may be.. The appeals against the award of the Motor Accident Claims
Tribunal are to be filed as per Rule 396 of the Kerala Motor Vehicle
Rules which mandates that a copy of the award shall accompany the
memoranda of appeal, exactly as in the case of an appeal under Order
XLI Rule 1 of Civil Procedure Code which reads as follows:
1. Form of appeal. What to accompany memorandum.
-- (1) Every appeal shall 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. The memorandum shall be accompanied by a
copy of the judgment.:
Provided that where two or more suits have been tried
together and a common judgment has been delivered
therefor and two or more appeals are filed against any
decree covered by that judgment, whether by the same
appellant or by different appellants, the Appellate Court
may dispense with the filing of more than one copy of the
judgment.
On a combined reading of the provisions in Chapter X of the
Kerala Motor Vehicle Rules 1989 and the relevant provision in
the Motor Vehicles Act 1988, it can be seen that the appeal
memorandum should be accompanied by a copy of the judgment
and going by the provisions in Civil Rules of Practice and Kerala
High Court Rules and Civil Procedure Code mentioned above, a
copy of award which should accompany the appeal memoranda
should be understood as a certified copy. A carbon copy which is
issued in terms of an application made to the Judge immediately
after pronouncement of the judgment, followed by the
permission of the Judge and filing of application for urgent copy
along with requisite fee will also be authenticated though it may
not contain all the requisite details as to the date of application,
date of calling stamp papers, furnishing stamp papers and
delivery of the copy, etc. At the same time, under Rule 253 of the
Rules, all copies furnished by the court shall be certified to be
true copy by the officer appointed for that purpose and shall be
sealed with the seal of the court, with the endorsement as
provided in Rules 2 to 4.
15. The learned counsel appearing for the appellant
argued that the copy referred to in Rule 396 should be the free
copy being sent to the party under Section 368 (2) of the Motor
Vehicles Act and that it is not necessary to produce the certified
copy of the judgment/award. In support of his contentions he
relied on the judgment reported in Shyamala Kumari vs Vijay
Lakshmi Amma [2011 (1) KLT 9] rendered by another Division
Bench. In that case, the issue considered was whether an appeal
under Section 18 of the Rent Control Act should be accompanied
by a certified copy of the impugned order/ judgment. In that
case the party had filed an appeal on the basis of the carbon
copy issued to him under Rule 239 (3) of the Civil Rules of
Practice, based on which an interim order staying execution
proceedings was granted. The court found that for all practical
purposes the carbon copy issued to the tenant in this case on the
basis of an oral request followed by an application submitted
immediately after the order was passed by the Rent Control
Court for the specific purpose of preferring an appeal is as good
as any other certified copy on the basis of which the appeal could
have been preferred. The issue considered therein was with
respect to the date to be reckoned for the purpose of calculating
the limitation period. This Court found that the distinction seen
between carbon copies and regular certified copies is that the
table of fees prepared on the basis of cost statements given to
the court by the party will be available only in the regular
certified copies. In this case the original tenant was issued with
a carbon copy for the purpose of preparing an appeal and
accordingly he preferred the appeal. In such circumstances, this
Court found that the question of limitation is to be answered on
the basis of the carbon copy and not on the basis of the certified
copy subsequently produced. This Court came to such a
conclusion, relying on the Single Bench judgment of this Court in
Tatha vs Paru reported in 1985 KLT 1069 and Joint
Agricultural Marketing Advisor Vs Baby reported in 1982
KLT 850 wherein it was held that for all practical purposes
including for the purpose of preferring appeal, carbon copy is as
good as a regular certified copy and that carbon copies issued
under Rule 239 (3) are copies duly certified by the court and
enjoys the presumption under Section 79 of the Evidence Act
regarding the genuineness of the copy as a copy of the original.
This Court arrived at that finding, after distinguishing the
judgment Chuppan Nadar Vs Sreedharan Thampi reported in
1992 (2) KLT 665, wherein it was held that an aggrieved party
need file an appeal only on the basis of the certified copy or
printed copy obtained by him and not on the basis of the copy of
operative portion of the judgment. It was a case where an appeal
filed on the basis of the certified copy of the judgment was
objected by the opposite party on the ground of delay saying that
period of limitation should be reckoned from the date on which
the appellant had obtained the certified copy of the last
paragraph of the judgment.
16. But we find that the copy issued under Section 168 (2)
of the Act cannot be equated to the one issued under Rule 239
(3) of the Civil Rules of Practice, as the latter would have all the
endorsements required to be made in a certified copy. In this
case the award is dated 23-12-2010. The free copy which is
produced along with this appeal bears the seal of the Tribunal on
the 1st page of the award. There is an endorsement on the last
page that it is a true copy/true photocopy with signature dated
27-05-2011 of the Head Clerk. It does not contain any further
details, apparently because no such endorsements are required
in the case of free copy and on account of this, it is not feasible
to calculate the period of limitation for the purpose of filing an
appeal. It is also pertinent to note that the free copy itself is
issued after about 5 months of the award, while Section 168(2)
provides that it shall be issued within a maximum period of 15
days from the date of the award.
17. The learned counsel relied on the judgment Joint
Agricultural Marketing Advisor Vs Baby [1982 KLT 851]
wherein a Division Bench of this Court, after considering the
provisions in Rule 128 of the High Court Rules, found that the
carbon copy issued under Rule 128 (2) based on oral application
of the party to the Court immediately after the pronouncement of
judgment, followed by the direction of the Court should be a
carbon copy duly certified and therefore such a carbon copy
issued by the Court is also a duly certified copy. This court found
that the idea behind the issuance of the carbon copy as well as
certified copy is that the party should get time from the date he
comes to know of the order and the period lost in applying the
earlier is counted and the period after receipt of the copy up to
the date of filing the appeal, is also reckoned for the purpose of
reckoning the period of limitation. In those circumstances, it was
held that the carbon copy issued to a party duly certified by the
court would be sufficient for the purpose of filing the appeal and
time should be reckoned with reference to such carbon copy if
such a carbon copy is received earlier than a certified copy.
Therefore it can be seen that the carbon copy referred to and
discussed in that case was the one issued under Rule 128 (2) of
the Kerala High Court Rules, (which is in pari materia with
R.239(3) of Civil Rules of Practice) which requires to be certified
whereas it is not necessary in the case of a copy being issued
under Section 168 (2) of the Act.
18. The learned counsel further relied on the judgment in
Thatha vs Paru reported in 1985 KLT 1069, wherein it was
held that the carbon copy produced along with the appeal can be
treated as a certified copy of the order, if it contains the
necessary particulars by which its authenticity can be inferred
and as such presentation of the appeal with such carbon copy
can be treated as a valid presentation. In that case this court
found that all the particulars except for the certification were
available in the carbon copy, including the seal of the Court. It
was also observed that there Section 76 of Evidence Act did not
prescribe any form for certified copy; the pre-requisite is that it
should be authenticated and should contain all the particulars
from date of application till date of delivery of the copy;
therefore such carbon copies issued on directions from the court,
if filed along with appeal memorandum, should be entertained.
19. The learned counsel relied on the judgment Smt.
Kaveri Roy and another Vs Bhagmat Tudu and another of
the High Court of Jharghand reported in 2005(3) TAC 395
wherein it was found that the certified copies of the judgment
being issued by the Tribunals did not contain the details of the
parties, valuation or costs awarded and therefore directions
were issued to include such details while issuing the judgments.
We do not find there anything which supports the contention of
the appellant herein.
20. The learned counsel brought to our notice, the
judgment of Orissa High Court in Oriental insurance company
Ltd vs Geetha Pareek & others [2009 (3) T. A. C 933 (Ori)]
wherein, after referring to the relevant provisions in Orissa
Motor Vehicles Rules relating to filing of appeal, it was held that
it is the certified copy of the award/judgment that is to be
produced along with the memorandum of appeal and not the
copy being issued under Section 168 (2) of the Act. The learned
Single Judge considered the judgments in AIR 1961 SC 832 and
Sakunthala Debi vs Kunthal Kumari and others reported in
AIR 1969 SC 575 wherein it was held that decree and
judgment are public documents under Section 77 of the
Evidence Act and only certified copy can be produced in proof of
their contents and that memorandum of appeal is not validly
represented unless it is accompanied by certified copies of the
decree and judgment. We are in full agreement with the view
taken by the Orissa High Court that such certified copies shall be
produced in proof of the contents of the public documents
nevertheless in view of the fact that the copy which is being
produced should have evidentiary value.
21. The isssue relatiing to requirement of certified copy is
seen considered by the Hon'ble Supreme court and this Court in
several cases including the following.
22. The apex court in State of U.P. v. C. Tobit [AIR
1958 SC 414] considered the requirement of certified copy for
filing an appeal under Section 419 of the Code of Criminal
Procedure, which reads as follows:
419. Every appeal shall be made in the form of a petition in
writing presented by the appellant or his pleader, and every such
petition shall (unless the Court to which it is presented otherwise
directs) be accompanied by a copy of the judgment or order appealed
against, and, in cases tried by a jury, a copy of the heads of the charge
recorded under Section 367."
The sole question raised in this appeal is whether this
section requires a petition of appeal to be accompanied by
a certified copy of the judgment or order appealed from.
The larger Bench (4 JJ) observed as follows:
A "copy" may be a plain copy i.e. an unofficial copy or a
certified copy i.e. an official copy. If a certified copy of the
judgment is annexed to the petition of appeal nobody can
say that the requirements of Section 419 have not been
complied with, for a certified copy is nonetheless a "copy".
That being the position a question of construction does
arise as to whether the word "copy" used in Section 419
refers to a plain copy or to a certified copy or covers both
varieties of copy. It is well settled that "the words of a
statute, when there is doubt about their meaning, are to be
understood in the sense in which they best harmonise with
the subject of the enactment and the object which the
Legislature has in view. Their meaning is found not so
much in a strictly grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in
the occasion on which they are used, and the object to be
attained." (Maxwell's Interpretation of Statutes, 10th Edn.
p. 52). In order, therefore, to come to a decision as to the
true meaning of a word used in a Statute one has to enquire
as to the subject-matter of the enactment and the object
which the legislature had in view. This leads us to a
consideration of some of the relevant sections of the Code
of Criminal Procedure and other enactments having a
material bearing on the question before us. xxxxx xxxx
xxxxxx
After considering various provisions in the Criminal Procedure
Code and Limitation Act and purpose and object lying behind the
provisions for appeal, it was held that
"It will suffice for us to hold that so far as
Section 419 is concerned, having regard to the
context and the purpose of that section, the copy to be
filed along with the petition of appeal must be a
certified copy."
23. In Sakunthala Debi vs Kunthal Kumari and
others reported in AIR 1969 SC 575 the Hon'ble Supreme
Court considered a case where an appeal was filed on 1st March
1967, along with a plain copy of the order in a partition suit,
saying that the certified copy of the order was not ready, though
application was file for the same. The certified copy was filed
only on 6th November 1967, after the opposite parties filed
objection on 25th October 1967. On December 22, 1967 the
High Court held that as the memorandum of appeal was not
accompanied by a certified copy of the order, the appeal was
incompetent, and that there was no sufficient ground for
condoning the delay in filing the copy. In para 2 of the judgment
the Hon'ble Supreme Court found as follows :
"Section 96 of the Code Order 41 Rule 1 of the Code
provides that every appeal shall be preferred in the form of
a memorandum signed by the appellant or his pleader "and
the memorandum shall be accompanied by a copy of the
decree appealed from and (unless the appellate court
dispenses therewith) of the judgment on which it is
founded". Under Order 411 Rule the appellate court can
dispense with the filing of the copy of the judgment but it
has no power to dispense with the filing of the copy of the
decree. A decree and a judgment are public documents and
under Section 77 of the Evidence Act only a certified copy
may be produced in proof of their contents. The
memorandum of appeals is not validly presented, unless it
is accompanied by certified copies of the decree and the
judgment."
It was held therein that the memorandum of appeal should
have been accompanied by a certified copy of the order and in
the absence of the requisite copy the appeal was defective and
incompetent. However, in view of the circumstances of that case
where the appellant was bonafide prosecuting her attempts to
get certified copy, it was found that the application filed for
condoning delay in filing the certified copy should have been
allowed.
24. In the judgment P.A. Oommen v. Moran Mar
Baselius Marthomareported in AIR 1992 SC 1977, the apex
court was considering the question whether the certified copy
applied for and obtained by a party in one of the cases can be
accepted in appeals by others and whether they are entitled to
the benefit under the proviso to Order 41 Rule 1 of Civil
Procedure Code, under the proviso to Order 41 Rule 1 where
two or more suits have been tried together and a common
judgment has been delivered therefore and two or more appeals
are filed against any decree covered by that judgment, whether
by the same appellant or by different appellants, the appellate
Court may dispense with the filing of more than one copy of the
judgment. The High Court took the view that the
plaintiffs/appellants cannot take advantage of the certified copy
of the judgment obtained by another person. And hence in
calculating the period of limitation the Court can reckon time
only on the basis of the certified copy of the judgment and
decree produced in the case. The following observations made
by the apex court in that judgment is relevant in the context of
the case before us.
"As for the printed copy of the judgment filed
with the memorandum of appeal it does not contain
the necessary particulars regarding the person who
made the application, the date of application, the date
of issue, the date notified for receiving the same as
required in Rules 253 and 254 of the Civil Rules of
Practice in order to entitle the appellants to claim
extension of time under Section 12(3) of the
Limitation Act. Confronted with this difficulty, the
appellant and other plaintiffs in O.S. No. 105 of 1980
sought to rely on the proviso to Order XLI Rule 1 CPC
and to get the advantage of the time taken by the
plaintiffs in O.S. No. 21 of 1979 in obtaining the
certified copy of the common judgment. We are
clearly of the view that there is no justification nor
any basis for claiming such benefit and the High
Court rightly dismissed the C.M.P. No. 32544 of
1983."
25. In Jayrajan v. Sabitha [2011 (4) KLT 262], a
Division Bench of this Court after considering the provisions in
Family Courts Act, 1984 and the provisions contained in the
Family Courts (Procedure) Rules, 1989, held that an appeal
under Section 19 of the Family Courts Act need be accompanied
by the copy of the judgment which is certified to be the true copy
by the Court which passed the judgment and that the copy of the
judgment need not be one certified in terms of R.253 or 254 of
Civil Rules of Practice. Subsection 3 of Section 19 of the Family
Courts Act provides that every appeal under this section from
the judgments of Family Court shall be preferred within a period
of 30 days from the date of the judgment or order of a Family
Court. Rule 13 Family Court (Procedure) Rules, 1989 provides
that every appeal under under section 19 (1) of the act shall be
accompanied by a copy certified to be true copy by the court
which passed the judgment. On an analysis of the provisions
contained in the Family Courts Act and the rules framed
thereunder, this court found that the provisions of the Family
Courts Act have overriding effect over any other law, as provided
under Section 20 and that Family Court (Procedure) Rules are
framed by the High Court in exercise of its powers vested by
Section 21 and going by the Rule 11 of Procedure Rules, the free
copy to be furnished to the parties free of cost is sufficient for
filing appeals under the Act. Rule 10 of the Procedure Rules
provides that a copy of every judgment/order against which an
appeal lies under section 19 of the Act shall be given free of cost
to the parties. Sub rule (ii) thereof provides that at the top of the
first page of the judgment or order there shall be an
endorsement to the effect that an appeal can be preferred to the
High Court of Kerala within a period of 30 days from the date of
judgment/orders. This court found that the Procedure Rules
having been issued in exercise of the statutory power contained
in S.21 of the Act, would get the protection of S.20 and would,
therefore, have overriding effect over Civil Rules of Practice to
the extent of inconsistency and therefore Rules 253 and 254 of
therein would not apply to the copies issued by the Family Court.
This court noticed that the copy produced along the appeal was
certified to be a true copy by the Sheristadar, who is, the chief
ministerial officer of the court that passed the judgment and
hence there was due certification.
26. But the copy being issued under Section 168(2)
does not contain the particulars required. There is no
procedure rules which even indicates that the certified
copy is not required. On the other hand under Rule 398 of
the Rules the provisions in Civil Rules of Practice are
made applicable to the proceedings under the Act and
Rules, unlike in the case of the Family Court Procedure
Rules.
27. In Ouso v. Cheekku reported in 2007 (1) KLT 61, a
learned Single Judge of this court considered the issue regarding
certified copy in a revision petition filed by an accused along with a
free copy. It was found that Rule 240 of the Criminal Rules of Practice
applies only to certified copies and not to "free copy" issued under
S.363(1) of the Code of Criminal Procedure, as Chapter XX of the
Criminal Rules of Practice in which Rule 240 occurs is named
"certified copies" whereas Rule 240 says "copy" only. Sub-s.(1) of
Section 363 provides for the issue of a copy of the judgment to the
accused free of cost immediately after pronouncement of the
judgment. Sub-s.(2) of S.363 provides for issue of a certified copy on
the application of the accused. The certified copy to be issued under
sub-s.(2) is also free of cost, in case, the judgment is appealable by the
accused. The proviso to sub-s.(2) states that where a sentence of
death is passed or confirmed by the High Court, a certified copy of the
judgment shall be immediately given to the accused free of cost
whether or not he applies for the same. Rule 109 of the Criminal
Rules of Practice states that the appellate court shall, when it
confirms or awards a sentence of imprisonment, furnish a copy of its
judgment to the accused free of cost. Section 382 of the Code of
Criminal Procedure provides that every appeal shall be made in the
form of a petition in writing and shall be accompanied by a copy of the
judgment or order appealed against. Section 382 does not mandate
that the appeal shall be accompanied by a certified copy of the
judgment. But Rule102 of the Criminal Rules of Practice provides that
every memorandum of appeal or Revision Petition shall be
accompanied by a certified copy of the judgment or order of the court.
It was found therein that a "free copy" issued under S.363(1) is also a
certified copy, since it is issued under seal of the court and is
certified as a true copy. This Court found that Rules 241 and 242
of the Civil Rules of Practice shall be followed, mutatis mutandis,
in the case of a copy to be issued under S.363 of the Code of
Criminal Procedure as well, if copy is not given to the accused
immediately after pronouncement of the judgment as provided in
S.363(1) of the Code of Criminal Procedure. It further found that
absence of the necessary endorsements on the copy of the
judgment makes it practically impossible to compute the period
of limitation.
28. In Yesoda v. Narayanan reported in [1985 KLT 540
(F.B.)], the Full Bench of this Court was considering the issue
whether the appellant is entitled to exclude the time taken to
obtain a certified copy of the decree of the lower court, for filing
appeal under the Marriage Act. Under Section 21 of the
Marriage Act, all proceedings under the Act, shall be regulated,
by the Code of Civil Procedure. Under Order XLI of the Code the
memorandum of appeal has to be accompanied by a copy of the
decree. It was found that if, in an appeal, under the Code,
Section 12 of the Limitation Act will apply, the same result is
achieved in an appeal under the Marriage Act, as well, in view of
the legislative scheme adopted in Section 28 of the Act making
the decree "appealable as decrees of the court made in the
exercise of original jurisdiction. It was found that by long usage
the term "certified copy" has obtained a special meaning in view
of the provision in Section 76 of the Evidence Act; and that term,
when used in connection with an appeal and with reference to
the order against which the appeal is filed, has always been
understood as the copy which the party preferring the appeal
obtains under Section 76 of the Evidence Act on payment of the
necessary fee. It was held that Section 23(4) of the Hindu
Marriage Act only enables the applicant to obtain a copy free of
cost; but does not statutorily prescribe the time during which the
copy has to be delivered; S.23(4) does not advance the
contention of the appellant that the time required to obtain the
certified copy cannot be excluded. S.23(4) does not advance the
contention of the appellant that the time required to obtain the
certified copy cannot be excluded.
29. In the case before us the Rules only provide for a copy
of the award/judgment to be accompanied with the memorandum
of appeal. The nature of the copy is not specified in the Rules.
But going by Section 74 of the Indian Evidence Act, 1872,
documents forming the acts, records of the acts of official bodies
and Tribunals are public documents. Section 76 provides for the
procedure to be followed in issuing a certified copy, which forms
the duty of every public officer having the custody of a public
document to issue the same, as and when there is a demand for
the same on payment of fees. As per Section 77 of the Evidence
Act the contents of public documents can be proved on
production of certified copies of the same. Therefore, when the
Rules provide that the memorandum of appeal should be
accompanied by a copy of the award/judgment, such copy of
judgment referred to therein should be a certified copy. Section
76 of the Indian Evidence Act reads as follows:
"76. Certified copies of public documents:-
Every public officer having the custody of a public
document, which any person has a right to inspect,
shall give that person on demand a copy of it on
payment of the legal fees therefor, together with a
certificate written at the foot of such copy that it is
a true copy of such document or part thereof, as the
case may be, and such certificate shall be dated and
subscribed by such officer with his name and his
official title, and shall be sealed, whenever such
officer is authorized by law to make use of a seal;
and such copies so certified shall be called certified
copies.
Explanation:- Any officer who, by the ordinary
course of official duty, is authorized to deliver such copies,
shall be deemed to have the custody of such documents
within the meaning of this section."In the present case
the statute does not require that the copy being sent
to the party under Section 168 (2) should be
authenticated.
Even if it bears the seal of the Tribunal, it would not bear the
details as required in Rule 254 of the Civil Rules of Practice. For
the purpose of calculating the period of limitation for filing
appeal, these particulars are essential. Under Section 12(2) of
the Limitation Act, the period between date of application and
date of receipt of certified copy of the award is liable to reckoned
for calculating the period of Limitation. Relevant portion of
Section 12 reads as follows:
12. Exclusion of time in legal proceedings.--(1)
(2) In computing the period of limitation for an appeal
or an application for leave to appeal or for revision or for
review of a judgment, the day on which the judgment
complained of was pronounced and the time requisite for
obtaining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed shall
be excluded..
30. It is pertinent to note that the copy of the award which
is required to be delivered by the Tribunal under Section 168 (2)
does not insist for any of the details to be endorsed on it. There
is a specific provision for filing appeal i.e, Section 173 of the Act,
the procedure for which is provided in Chapter X of the Rules,
according to which the provisions in Civil Rules of Practice are
applicable mutatis mutandis. When there is a specific provision,
which makes the provisions in Civil Rules of Practice applicable,
we are of the view that it is a certified copy of the
award/judgment which should accompany the appeal
memorandum and the word "copy" appearing in Rule 396 of the
Rules is to be read and understood as certified copy, in terms of
the provisions contained in Civil Rules of Practice, which is also
made applicable. We do not find any reason to interpret the
provision in Section 168 (2) to mean that an appeal under
Section 173 can be filed along with the copy of the award to be
sent by the Tribunal to the party dehors the provisions in Civil
Rules of Practice, which is specifically made applicable to the
proceedings in the Tribunal as well as the appellate court, which
may or may not contain the authentication, the details of date of
application, date of calling stamp, date of delivery etc.
31. Therefore we find that it will be in the interests of all
the parties to a claim, especially the claimants that the copy of
the award, which should be filed along with the appeal as
envisaged in Rule 396 of the Rules should be authenticated and
should contain the particulars no.1 to 11 specified in Rule 254 of
the Civil Rules of Practice and therefore the free copy under
Section 168(2) cannot be accepted in substitute of the certified
copy. We find that issuing of copy of the judgement or award by
the court under Section 168(2) is not for the purpose of filing an
appeal and such an interpretation will not be in any way
beneficial to the parties, as the period of limitation runs from the
date of receipt of the copy. Therefore we do not find it necessary
to withdraw the directives contained in the judgment reported in
Habeeb Vs Sebastian supra.
The reference is answered accordingly.
Sd/-
T.R.RAMACHANDRAN NAIR
Judge
Sd/-
A.V.RAMAKRISHNA PILLAI
Judge
Sd/-
P.V.ASHA
Judge
Print Page
the parties to a claim, especially the claimants that the copy of
the award, which should be filed along with the appeal as
envisaged in Rule 396 of the Rules should be authenticated and
should contain the particulars no.1 to 11 specified in Rule 254 of
the Civil Rules of Practice and therefore the free copy under
Section 168(2) cannot be accepted in substitute of the certified
copy. We find that issuing of copy of the judgement or award by
the court under Section 168(2) is not for the purpose of filing an
appeal and such an interpretation will not be in any way
beneficial to the parties, as the period of limitation runs from the
date of receipt of the copy. Therefore we do not find it necessary
to withdraw the directives contained in the judgment reported in
Habeeb Vs Sebastian supra.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
UNNUMB,MACA.No. 80 of 2011 ( )
SUNITHA SUKUMARAN, Vs RANJU, S/O.NANU,
Coram: T.R.RAMACHANDRAN NAIR,
A.V.RAMAKRISHNA PILLAI & P.V ASHA, JJ.
ZM.A.C.A No.80 of 2011
Dated this the 16th day of October, 2014
Citation;AIR 2015 Kerala 24
Whether an appeal filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as `the Act') should
be accompanied by a certified copy of the award/judgment or
whether it is sufficient to file the free copy issued under Section
168(2) of the Act, is the question referred to the Full Bench.
2. In the judgment reported in Habeeb v. Sebastian
T.C [ILR 2010 (4) Kerala 940], a Division Bench of this court,
after elaborately considering the various provisions in the Motor
Vehicles Act, Kerala Motor Vehicles Rules and Civil Rules of
Practice directed that all appeals preferred under Section 173 of
the Act after 1.1.2011 shall be accompanied by a certified copy
of the award and that appeals accompanied by free copy of the
award shall not be entertained after 1.1.2011.
3. Another Division Bench in its order dated 8.7.2011 in
an unnumbered MACA of 2011, found that the free copy of the
award is the statutory right of the claimant and therefore such
free copy issued must be held to be sufficient for all purposes
including filing of appeal and disagreed with the directives
issued in Habeeb v. Sebastian (supra). This Division Bench was
of the view that new generation enactments like Motor Vehicles
Act, the Family Courts Act, etc, do recognize the right of a
person to receive free copy of the decision rendered in the
litigation in which he is a party and that at least in respect of
such statutes which recognize such a right of the party to receive
a free copy,, such free copy should be held to be sufficient for all
purposes, and therefore the Tribunals which are constituted to
render rough and ready justice to the parties should be liberated
from the shackles of unnecessary procedural niceties The matter
is referred to the Full Bench under these circumstances.
4. In this context, an analysis of the various provisions
relating to the passing of award and the procedural formalities in
filing an appeal under the Act is necessary.
5. Section 168 of the Act provides that on receipt of a
claim for compensation, the Claims Tribunal shall, hold an
enquiry into the claim, with notice and opportunity of hearing to
the parties including insurer and may make an award
determining the amount of compensation which appears to it to
be just and specifying the person or persons to whom
compensation shall be paid and specifying the amount which
shall be paid by the insurer or owner or driver involved in the
accident. Section 168 (1) and (2) of the Act are as follows:
"168. Award of the Claims Tribunal.--(1) On receipt
of an application for compensation made under Section 166,
the Claims Tribunal shall, after giving notice of the application
to the insurer and after giving the parties (including the
insurer) an opportunity of being heard, hold an inquiry into
the claim or, as the case may be, each of the claims and,
subject to the provisions of Section 162 may make an award
determining the amount of compensation which appears to it
to be just and specifying the person or persons to whom
compensation shall be paid and in making the award the
Claims Tribunal shall specify the amount which shall be paid
by the insurer or owner or driver of the vehicle involved in the
accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for
compensation under Section 140 in respect of the death or
permanent disablement of any person, such claim and any
other claim (whether made in such application or otherwise)
for compensation in respect of such death or permanent
disablement shall be disposed of in accordance with the
provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the
award to the parties concerned expeditiously and in any case
within a period of fifteen days from the date of the award."
6. Section 173 of the Act provides that any person
aggrieved by an award of the Claims Tribunal may within 90
days from the date of the award prefer an appeal to the High
Court. Section 173 of the Act reads as follows:
"173. Appeals.--(1) Subject to the provisions of
sub-section (2), any person aggrieved by an award of a
Claims Tribunal may, within ninety days from the date of
the award, prefer an appeal to the High Court."
Section 176 of the Act enables the State Government to make
rules for various purposes mentioned therein including the form
and manner in which an appeal may be preferred against an
award of the Claims Tribunal. Section 176 reads as follows:
"176. Power of State Government to make rules:- A
State Government may make rules for the purpose of
carrying into effect the provisions of sections 165 to 174,
and in particular, such rules may provide for all or any of
the following matters, namely:-
(a) the form of application for claims for
compensation and the particulars it may contain, and the
fees, if any, to be paid in respect of such applications;
(b) the procedure to be followed by a Claims Tribunal
in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be
exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if
any) on payment of which an appeal may be preferred
against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be,
prescribed."
In exercise of the powers conferred under various provisions
including Section 176 of the Act, Government of Kerala has
issued the Kerala Motor Vehicle Rules, 1989 (hereinafter
referred to as "the Rules"). Chapter X thereof consisting of Rules
371-398A deals with the powers of the Claims Tribunal,
procedure to be followed for adjudicating the claims, passing of
award, the appellate remedy, fees prescribed, etc. Rule 396 of
the Rules provides for appeal against the decision of the claims
Tribunal which reads as follows:
"396. Appeal against the decision of Claims
Tribunal.--
(1) An appeal against the award of a Claims Tribunal
shall be preferred in the form of a memorandum stating
concisely the grounds on which appeal is preferred.
(2) It shall be accompanied by a copy of the judgment,
the award appealed against, and the fee prescribed in
sub-rule (3) of Rule 397.
7. Thus it can be seen that the memoranda of appeal
against the award of the Claims Tribunal has to be accompanied
by a copy of the judgment, the award appealed against as well as
the fees prescribed.
8. In this context it is necessary to have a look at Rule
392 of the Rules which provides for judgment as well as award
by the Tribunal. This Rule provides that the Claims Tribunal in
passing orders, shall record concisely in a judgment, the findings
on each of the issues framed and the reasons for such findings
and make an award specifying the amount of compensation to be
paid by the insurer, or the owner in case where the vehicle is not
insured and also the person or persons to whom compensation
shall be paid. Sub Rule 3 provides that the Claims Tribunal shall
furnish copies of the judgment to the Secretary of the Regional
Transport Authority, the registering authority and the licensing
authority concerned for taking necessary action. Sub Rule 4
provides that the record of judgment, in respect of claims
exceeding Rs.5000/-, shall contain the evidence which shall
either be verbatim or a reasonably complete and full memoranda
of testimony explaining the basis of compensation, the findings
on each such evidence and the reasons for such findings before
making an award specifying the amount of compensation. Rule
392 reads as follows:
"392. Judgment and award of compensation:- (1)
The Claims Tribunal in passing orders, shall record
concisely in a judgment, the findings on each of the
issues framed and the reasons for such findings and
make an award specifying the amount of compensation
to be paid by the insurer, or the owner in the case of
vehicles which are not insured and also the person or
persons to whom compensation shall be paid.
(2) Where compensation is awarded to two or
more persons the Claims Tribunal shall also specify the
amount payable to each of them.
(3) The Claims Tribunal shall furnish copies of
the judgment as required to be recorded under sub-rule
(1) to the Secretary of the Regional Transport Authority,
the registering authority and the licensing authority
concerned for taking such action as the authorities
consider necessary against the drivers, conductors or
owners or the vehicle involved in the accident.
(4) Notwithstanding anything contained in sub-
rules (1) and (2) the record of judgment shall, in respect
of claims exceeding five thousand rupees, contain the
evidence which shall either be verbatim or a reasonably
complete and full memoranda of testimony explaining
the basis of compensation, the findings on each such
evidence and the reasons for such findings, before
making an award specifying the amount of
compensation."
9. The procedure for filing an appeal is provided in Rule
396, as mentioned above. Rule 397 provides for the fees to be
remitted while filing the claim for compensation and for filing
appeal. Rule 398 provides that the rules relating to issue of
certified copies obtaining in the Civil Rules of Practice, Kerala
shall mutatis mutandis apply in the case of Claims Tribunal,
which reads as follows:
"398. Certified copies:- The rules relating to the
issue of certified copies obtaining in the Civil Rules of
Practice, Kerala shall mutatis mutandis apply in the case
of Claims Tribunal.
10. The procedure for issuing certified copies is provided
in Chapter VII of the Civil Rules of Practice, Kerala. Rule 239 (1)
provides that any person entitled to obtain a copy of any
proceeding or document filed in or in the custody of the Court,
shall present an application thereof as in Form Number 47
setting out the name of the applicant, his position in the suit or
proceeding if he is a party thereto, and the description of the
document of which copy is required. Provisions in Rule 239
relevant for the purpose of this case reads as follows:
239: Application for copies:- (1) Any person
entitled to obtain a copy of any proceeding or document
filed in or in the custody of the Court, may present an
application therefor as in Form No. 47 setting out the
name of the applicant, his position in the suit or
proceeding if he is a party thereto, and the description
of the document of which copy is required.
(3)Any party to the proceeding may, immediately
after the judgment or order is pronounced, apply orally
to the Court for a carbon copy or photostat copy thereof,
and, if the court so directs, a carbon copy or photostat
copy duly certified shall be issued to the party on his
making an application for an urgent copy under Rule
246 accompanied by the copying charges required by
Rule 248.
Provided that in cases where the State
Government or the Central Government is a party, a
carbon copy may be issued to the State Government or
the Central Government, as the case may be, by the
office free of cost, on receipt of a written requisition for
the same.]
11. Sub Rule 3 of Rule 239 of Civil Rules of Practice
provides for issuance of carbon copy, in case a party to the
proceedings orally applies to the court for the same immediately
after the pronouncement of the judgment or order and if the
court so directs and immediately thereupon that party submits
an application for an urgent copy thereof under Rule 246 and
remits the requisite court fee/charges as provided in Rule 248.
Rule 242 provides that a list of applications in which records are
received and the number of stamp papers required shall be
published in the notice board everyday and such list shall remain
suspended for 3 clear working days and that the applicant shall
supply the stamp paper called for, within the time fixed, failing
which application shall be struck off. Rule 244 provides that the
date for appearance of the applicant to receive the copy shall be
notified on the notice board. Rule 247 provides that the copies
notified in the notice board, shall be taken delivery within three
clear days. Rule 248 provides for copying charges to be supplied
in the shape of stamp papers/court fee stamp affixed in fullscap
paper. Rule 250 provides for production of stamp papers; Rule
253 provides that all copies furnished by the court shall be
certified to be true copy by the officer appointed for the purpose
and shall be sealed with the seal of the court. Rule 254 further
provides that every copy shall bear an endorsement by showing
the following particulars: Rules 253 and 254 read as follows:
253. Sealing and certificate:- All copies furnished
by the Court shall be certified to be true copies by the
officer appointed for the purpose and shall be sealed
with the seal of the Court.
254. Endorsement of copies:- Every copy shall
bear an endorsement initialled by the 21
[Fair Copy
Superintendent or the Examiner, as the case may be],
showing the following particulars:
1. Name of the Court.
2. Year and number of the suit or other
proceeding.
3. Name of the applicant.
4. Number and date of the application.
5. D ate of calling for stamp papers.
6. Date of production of papers.
7. Date of calling for additional papers.
8. Date of production of additional papers.
9. Date when copy was ready.
10.Date notified for appearance to receive the
copy.
11.Date when copy was delivered."
12. Thus on a reading of the provisions contained in
Chapter VII of the Civil Rules of Practice, Kerala, it can be seen
that all copies furnished by the court shall be certified to be true
copy and shall bear the seal of the court and such copies shall
have the endorsement relating to the name of the court, year and
number of the suit/other proceedings, name of applicant,
number and date of application, date of calling for stamp papers,
date of production of stamp paper, date of calling for additional
papers, date of production of additional papers, date when it was
ready, date notified for appearance to receive the copy and the
date when copy was delivered.
13. The carbon copy of a proceedings envisaged under
sub rule 3 of Rule 239 is to be issued on the basis of an
application by the party to the court immediately after
pronouncement of judgment/order and when the court issues a
direction in terms of such application and the party makes an
application for urgent copy under Rule 246 and remits the
copying charges. Rule 246 provides for preparation of all copies
of documents applied for in accordance with the serial order of
the applications and Rule 247 provides for delivery of copies,
after publication of the list where copy is ready for delivery in
the notice board. Rule 248 provides for copying charges to be
called for and supplied in the shape of court fee stamps/stamp
papers at the rate of one rupee for every 175 words. Rule 250
provides that the person producing stamp papers for copies shall
make an endorsement on the copy application showing the
number of stamp papers produced, and the examiner of copies
shall initial the same in token of receipt.
14. In this context the provisions contained in Rules 41
and 42 of Kerala High Court Rules, 1971, are also relevant,
which read as follows:
41.Papers to be filed with memoranda of appeals:-
Every memorandum of appeal shall be accompanied by as
many clear authenticated copies thereof as there are
respondents to be served and by two additional copies for
the use of the Court, by such papers as are referred to in
the Code with regard to appeals, by the fees prescribed for
service of notice on the respondents and by the particulars
for service as set out in Form No. 3:
42.Appeals barred by limitation:-
Every Memorandum of Appeal or other proceeding which is
presented after the expiration of the time limited by law,
shall be accompanied by a petition to excuse the delay and
as many copies thereof as there are respondents to be
served and by two additional copies for the use of the
Court, by the fees prescribed for service of notice of the
petition on the respondents and by the particulars for
service as in Form No. 3.
Under Rule 5(5) of the High Court Rules 'Code" means Civil
Procedure Code, 1908 or Criminal Procedure Code, 1898, as the case
may be.. The appeals against the award of the Motor Accident Claims
Tribunal are to be filed as per Rule 396 of the Kerala Motor Vehicle
Rules which mandates that a copy of the award shall accompany the
memoranda of appeal, exactly as in the case of an appeal under Order
XLI Rule 1 of Civil Procedure Code which reads as follows:
1. Form of appeal. What to accompany memorandum.
-- (1) Every appeal shall 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. The memorandum shall be accompanied by a
copy of the judgment.:
Provided that where two or more suits have been tried
together and a common judgment has been delivered
therefor and two or more appeals are filed against any
decree covered by that judgment, whether by the same
appellant or by different appellants, the Appellate Court
may dispense with the filing of more than one copy of the
judgment.
On a combined reading of the provisions in Chapter X of the
Kerala Motor Vehicle Rules 1989 and the relevant provision in
the Motor Vehicles Act 1988, it can be seen that the appeal
memorandum should be accompanied by a copy of the judgment
and going by the provisions in Civil Rules of Practice and Kerala
High Court Rules and Civil Procedure Code mentioned above, a
copy of award which should accompany the appeal memoranda
should be understood as a certified copy. A carbon copy which is
issued in terms of an application made to the Judge immediately
after pronouncement of the judgment, followed by the
permission of the Judge and filing of application for urgent copy
along with requisite fee will also be authenticated though it may
not contain all the requisite details as to the date of application,
date of calling stamp papers, furnishing stamp papers and
delivery of the copy, etc. At the same time, under Rule 253 of the
Rules, all copies furnished by the court shall be certified to be
true copy by the officer appointed for that purpose and shall be
sealed with the seal of the court, with the endorsement as
provided in Rules 2 to 4.
15. The learned counsel appearing for the appellant
argued that the copy referred to in Rule 396 should be the free
copy being sent to the party under Section 368 (2) of the Motor
Vehicles Act and that it is not necessary to produce the certified
copy of the judgment/award. In support of his contentions he
relied on the judgment reported in Shyamala Kumari vs Vijay
Lakshmi Amma [2011 (1) KLT 9] rendered by another Division
Bench. In that case, the issue considered was whether an appeal
under Section 18 of the Rent Control Act should be accompanied
by a certified copy of the impugned order/ judgment. In that
case the party had filed an appeal on the basis of the carbon
copy issued to him under Rule 239 (3) of the Civil Rules of
Practice, based on which an interim order staying execution
proceedings was granted. The court found that for all practical
purposes the carbon copy issued to the tenant in this case on the
basis of an oral request followed by an application submitted
immediately after the order was passed by the Rent Control
Court for the specific purpose of preferring an appeal is as good
as any other certified copy on the basis of which the appeal could
have been preferred. The issue considered therein was with
respect to the date to be reckoned for the purpose of calculating
the limitation period. This Court found that the distinction seen
between carbon copies and regular certified copies is that the
table of fees prepared on the basis of cost statements given to
the court by the party will be available only in the regular
certified copies. In this case the original tenant was issued with
a carbon copy for the purpose of preparing an appeal and
accordingly he preferred the appeal. In such circumstances, this
Court found that the question of limitation is to be answered on
the basis of the carbon copy and not on the basis of the certified
copy subsequently produced. This Court came to such a
conclusion, relying on the Single Bench judgment of this Court in
Tatha vs Paru reported in 1985 KLT 1069 and Joint
Agricultural Marketing Advisor Vs Baby reported in 1982
KLT 850 wherein it was held that for all practical purposes
including for the purpose of preferring appeal, carbon copy is as
good as a regular certified copy and that carbon copies issued
under Rule 239 (3) are copies duly certified by the court and
enjoys the presumption under Section 79 of the Evidence Act
regarding the genuineness of the copy as a copy of the original.
This Court arrived at that finding, after distinguishing the
judgment Chuppan Nadar Vs Sreedharan Thampi reported in
1992 (2) KLT 665, wherein it was held that an aggrieved party
need file an appeal only on the basis of the certified copy or
printed copy obtained by him and not on the basis of the copy of
operative portion of the judgment. It was a case where an appeal
filed on the basis of the certified copy of the judgment was
objected by the opposite party on the ground of delay saying that
period of limitation should be reckoned from the date on which
the appellant had obtained the certified copy of the last
paragraph of the judgment.
16. But we find that the copy issued under Section 168 (2)
of the Act cannot be equated to the one issued under Rule 239
(3) of the Civil Rules of Practice, as the latter would have all the
endorsements required to be made in a certified copy. In this
case the award is dated 23-12-2010. The free copy which is
produced along with this appeal bears the seal of the Tribunal on
the 1st page of the award. There is an endorsement on the last
page that it is a true copy/true photocopy with signature dated
27-05-2011 of the Head Clerk. It does not contain any further
details, apparently because no such endorsements are required
in the case of free copy and on account of this, it is not feasible
to calculate the period of limitation for the purpose of filing an
appeal. It is also pertinent to note that the free copy itself is
issued after about 5 months of the award, while Section 168(2)
provides that it shall be issued within a maximum period of 15
days from the date of the award.
17. The learned counsel relied on the judgment Joint
Agricultural Marketing Advisor Vs Baby [1982 KLT 851]
wherein a Division Bench of this Court, after considering the
provisions in Rule 128 of the High Court Rules, found that the
carbon copy issued under Rule 128 (2) based on oral application
of the party to the Court immediately after the pronouncement of
judgment, followed by the direction of the Court should be a
carbon copy duly certified and therefore such a carbon copy
issued by the Court is also a duly certified copy. This court found
that the idea behind the issuance of the carbon copy as well as
certified copy is that the party should get time from the date he
comes to know of the order and the period lost in applying the
earlier is counted and the period after receipt of the copy up to
the date of filing the appeal, is also reckoned for the purpose of
reckoning the period of limitation. In those circumstances, it was
held that the carbon copy issued to a party duly certified by the
court would be sufficient for the purpose of filing the appeal and
time should be reckoned with reference to such carbon copy if
such a carbon copy is received earlier than a certified copy.
Therefore it can be seen that the carbon copy referred to and
discussed in that case was the one issued under Rule 128 (2) of
the Kerala High Court Rules, (which is in pari materia with
R.239(3) of Civil Rules of Practice) which requires to be certified
whereas it is not necessary in the case of a copy being issued
under Section 168 (2) of the Act.
18. The learned counsel further relied on the judgment in
Thatha vs Paru reported in 1985 KLT 1069, wherein it was
held that the carbon copy produced along with the appeal can be
treated as a certified copy of the order, if it contains the
necessary particulars by which its authenticity can be inferred
and as such presentation of the appeal with such carbon copy
can be treated as a valid presentation. In that case this court
found that all the particulars except for the certification were
available in the carbon copy, including the seal of the Court. It
was also observed that there Section 76 of Evidence Act did not
prescribe any form for certified copy; the pre-requisite is that it
should be authenticated and should contain all the particulars
from date of application till date of delivery of the copy;
therefore such carbon copies issued on directions from the court,
if filed along with appeal memorandum, should be entertained.
19. The learned counsel relied on the judgment Smt.
Kaveri Roy and another Vs Bhagmat Tudu and another of
the High Court of Jharghand reported in 2005(3) TAC 395
wherein it was found that the certified copies of the judgment
being issued by the Tribunals did not contain the details of the
parties, valuation or costs awarded and therefore directions
were issued to include such details while issuing the judgments.
We do not find there anything which supports the contention of
the appellant herein.
20. The learned counsel brought to our notice, the
judgment of Orissa High Court in Oriental insurance company
Ltd vs Geetha Pareek & others [2009 (3) T. A. C 933 (Ori)]
wherein, after referring to the relevant provisions in Orissa
Motor Vehicles Rules relating to filing of appeal, it was held that
it is the certified copy of the award/judgment that is to be
produced along with the memorandum of appeal and not the
copy being issued under Section 168 (2) of the Act. The learned
Single Judge considered the judgments in AIR 1961 SC 832 and
Sakunthala Debi vs Kunthal Kumari and others reported in
AIR 1969 SC 575 wherein it was held that decree and
judgment are public documents under Section 77 of the
Evidence Act and only certified copy can be produced in proof of
their contents and that memorandum of appeal is not validly
represented unless it is accompanied by certified copies of the
decree and judgment. We are in full agreement with the view
taken by the Orissa High Court that such certified copies shall be
produced in proof of the contents of the public documents
nevertheless in view of the fact that the copy which is being
produced should have evidentiary value.
21. The isssue relatiing to requirement of certified copy is
seen considered by the Hon'ble Supreme court and this Court in
several cases including the following.
22. The apex court in State of U.P. v. C. Tobit [AIR
1958 SC 414] considered the requirement of certified copy for
filing an appeal under Section 419 of the Code of Criminal
Procedure, which reads as follows:
419. Every appeal shall be made in the form of a petition in
writing presented by the appellant or his pleader, and every such
petition shall (unless the Court to which it is presented otherwise
directs) be accompanied by a copy of the judgment or order appealed
against, and, in cases tried by a jury, a copy of the heads of the charge
recorded under Section 367."
The sole question raised in this appeal is whether this
section requires a petition of appeal to be accompanied by
a certified copy of the judgment or order appealed from.
The larger Bench (4 JJ) observed as follows:
A "copy" may be a plain copy i.e. an unofficial copy or a
certified copy i.e. an official copy. If a certified copy of the
judgment is annexed to the petition of appeal nobody can
say that the requirements of Section 419 have not been
complied with, for a certified copy is nonetheless a "copy".
That being the position a question of construction does
arise as to whether the word "copy" used in Section 419
refers to a plain copy or to a certified copy or covers both
varieties of copy. It is well settled that "the words of a
statute, when there is doubt about their meaning, are to be
understood in the sense in which they best harmonise with
the subject of the enactment and the object which the
Legislature has in view. Their meaning is found not so
much in a strictly grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in
the occasion on which they are used, and the object to be
attained." (Maxwell's Interpretation of Statutes, 10th Edn.
p. 52). In order, therefore, to come to a decision as to the
true meaning of a word used in a Statute one has to enquire
as to the subject-matter of the enactment and the object
which the legislature had in view. This leads us to a
consideration of some of the relevant sections of the Code
of Criminal Procedure and other enactments having a
material bearing on the question before us. xxxxx xxxx
xxxxxx
After considering various provisions in the Criminal Procedure
Code and Limitation Act and purpose and object lying behind the
provisions for appeal, it was held that
"It will suffice for us to hold that so far as
Section 419 is concerned, having regard to the
context and the purpose of that section, the copy to be
filed along with the petition of appeal must be a
certified copy."
23. In Sakunthala Debi vs Kunthal Kumari and
others reported in AIR 1969 SC 575 the Hon'ble Supreme
Court considered a case where an appeal was filed on 1st March
1967, along with a plain copy of the order in a partition suit,
saying that the certified copy of the order was not ready, though
application was file for the same. The certified copy was filed
only on 6th November 1967, after the opposite parties filed
objection on 25th October 1967. On December 22, 1967 the
High Court held that as the memorandum of appeal was not
accompanied by a certified copy of the order, the appeal was
incompetent, and that there was no sufficient ground for
condoning the delay in filing the copy. In para 2 of the judgment
the Hon'ble Supreme Court found as follows :
"Section 96 of the Code Order 41 Rule 1 of the Code
provides that every appeal shall be preferred in the form of
a memorandum signed by the appellant or his pleader "and
the memorandum shall be accompanied by a copy of the
decree appealed from and (unless the appellate court
dispenses therewith) of the judgment on which it is
founded". Under Order 411 Rule the appellate court can
dispense with the filing of the copy of the judgment but it
has no power to dispense with the filing of the copy of the
decree. A decree and a judgment are public documents and
under Section 77 of the Evidence Act only a certified copy
may be produced in proof of their contents. The
memorandum of appeals is not validly presented, unless it
is accompanied by certified copies of the decree and the
judgment."
It was held therein that the memorandum of appeal should
have been accompanied by a certified copy of the order and in
the absence of the requisite copy the appeal was defective and
incompetent. However, in view of the circumstances of that case
where the appellant was bonafide prosecuting her attempts to
get certified copy, it was found that the application filed for
condoning delay in filing the certified copy should have been
allowed.
24. In the judgment P.A. Oommen v. Moran Mar
Baselius Marthomareported in AIR 1992 SC 1977, the apex
court was considering the question whether the certified copy
applied for and obtained by a party in one of the cases can be
accepted in appeals by others and whether they are entitled to
the benefit under the proviso to Order 41 Rule 1 of Civil
Procedure Code, under the proviso to Order 41 Rule 1 where
two or more suits have been tried together and a common
judgment has been delivered therefore and two or more appeals
are filed against any decree covered by that judgment, whether
by the same appellant or by different appellants, the appellate
Court may dispense with the filing of more than one copy of the
judgment. The High Court took the view that the
plaintiffs/appellants cannot take advantage of the certified copy
of the judgment obtained by another person. And hence in
calculating the period of limitation the Court can reckon time
only on the basis of the certified copy of the judgment and
decree produced in the case. The following observations made
by the apex court in that judgment is relevant in the context of
the case before us.
"As for the printed copy of the judgment filed
with the memorandum of appeal it does not contain
the necessary particulars regarding the person who
made the application, the date of application, the date
of issue, the date notified for receiving the same as
required in Rules 253 and 254 of the Civil Rules of
Practice in order to entitle the appellants to claim
extension of time under Section 12(3) of the
Limitation Act. Confronted with this difficulty, the
appellant and other plaintiffs in O.S. No. 105 of 1980
sought to rely on the proviso to Order XLI Rule 1 CPC
and to get the advantage of the time taken by the
plaintiffs in O.S. No. 21 of 1979 in obtaining the
certified copy of the common judgment. We are
clearly of the view that there is no justification nor
any basis for claiming such benefit and the High
Court rightly dismissed the C.M.P. No. 32544 of
1983."
25. In Jayrajan v. Sabitha [2011 (4) KLT 262], a
Division Bench of this Court after considering the provisions in
Family Courts Act, 1984 and the provisions contained in the
Family Courts (Procedure) Rules, 1989, held that an appeal
under Section 19 of the Family Courts Act need be accompanied
by the copy of the judgment which is certified to be the true copy
by the Court which passed the judgment and that the copy of the
judgment need not be one certified in terms of R.253 or 254 of
Civil Rules of Practice. Subsection 3 of Section 19 of the Family
Courts Act provides that every appeal under this section from
the judgments of Family Court shall be preferred within a period
of 30 days from the date of the judgment or order of a Family
Court. Rule 13 Family Court (Procedure) Rules, 1989 provides
that every appeal under under section 19 (1) of the act shall be
accompanied by a copy certified to be true copy by the court
which passed the judgment. On an analysis of the provisions
contained in the Family Courts Act and the rules framed
thereunder, this court found that the provisions of the Family
Courts Act have overriding effect over any other law, as provided
under Section 20 and that Family Court (Procedure) Rules are
framed by the High Court in exercise of its powers vested by
Section 21 and going by the Rule 11 of Procedure Rules, the free
copy to be furnished to the parties free of cost is sufficient for
filing appeals under the Act. Rule 10 of the Procedure Rules
provides that a copy of every judgment/order against which an
appeal lies under section 19 of the Act shall be given free of cost
to the parties. Sub rule (ii) thereof provides that at the top of the
first page of the judgment or order there shall be an
endorsement to the effect that an appeal can be preferred to the
High Court of Kerala within a period of 30 days from the date of
judgment/orders. This court found that the Procedure Rules
having been issued in exercise of the statutory power contained
in S.21 of the Act, would get the protection of S.20 and would,
therefore, have overriding effect over Civil Rules of Practice to
the extent of inconsistency and therefore Rules 253 and 254 of
therein would not apply to the copies issued by the Family Court.
This court noticed that the copy produced along the appeal was
certified to be a true copy by the Sheristadar, who is, the chief
ministerial officer of the court that passed the judgment and
hence there was due certification.
26. But the copy being issued under Section 168(2)
does not contain the particulars required. There is no
procedure rules which even indicates that the certified
copy is not required. On the other hand under Rule 398 of
the Rules the provisions in Civil Rules of Practice are
made applicable to the proceedings under the Act and
Rules, unlike in the case of the Family Court Procedure
Rules.
27. In Ouso v. Cheekku reported in 2007 (1) KLT 61, a
learned Single Judge of this court considered the issue regarding
certified copy in a revision petition filed by an accused along with a
free copy. It was found that Rule 240 of the Criminal Rules of Practice
applies only to certified copies and not to "free copy" issued under
S.363(1) of the Code of Criminal Procedure, as Chapter XX of the
Criminal Rules of Practice in which Rule 240 occurs is named
"certified copies" whereas Rule 240 says "copy" only. Sub-s.(1) of
Section 363 provides for the issue of a copy of the judgment to the
accused free of cost immediately after pronouncement of the
judgment. Sub-s.(2) of S.363 provides for issue of a certified copy on
the application of the accused. The certified copy to be issued under
sub-s.(2) is also free of cost, in case, the judgment is appealable by the
accused. The proviso to sub-s.(2) states that where a sentence of
death is passed or confirmed by the High Court, a certified copy of the
judgment shall be immediately given to the accused free of cost
whether or not he applies for the same. Rule 109 of the Criminal
Rules of Practice states that the appellate court shall, when it
confirms or awards a sentence of imprisonment, furnish a copy of its
judgment to the accused free of cost. Section 382 of the Code of
Criminal Procedure provides that every appeal shall be made in the
form of a petition in writing and shall be accompanied by a copy of the
judgment or order appealed against. Section 382 does not mandate
that the appeal shall be accompanied by a certified copy of the
judgment. But Rule102 of the Criminal Rules of Practice provides that
every memorandum of appeal or Revision Petition shall be
accompanied by a certified copy of the judgment or order of the court.
It was found therein that a "free copy" issued under S.363(1) is also a
certified copy, since it is issued under seal of the court and is
certified as a true copy. This Court found that Rules 241 and 242
of the Civil Rules of Practice shall be followed, mutatis mutandis,
in the case of a copy to be issued under S.363 of the Code of
Criminal Procedure as well, if copy is not given to the accused
immediately after pronouncement of the judgment as provided in
S.363(1) of the Code of Criminal Procedure. It further found that
absence of the necessary endorsements on the copy of the
judgment makes it practically impossible to compute the period
of limitation.
28. In Yesoda v. Narayanan reported in [1985 KLT 540
(F.B.)], the Full Bench of this Court was considering the issue
whether the appellant is entitled to exclude the time taken to
obtain a certified copy of the decree of the lower court, for filing
appeal under the Marriage Act. Under Section 21 of the
Marriage Act, all proceedings under the Act, shall be regulated,
by the Code of Civil Procedure. Under Order XLI of the Code the
memorandum of appeal has to be accompanied by a copy of the
decree. It was found that if, in an appeal, under the Code,
Section 12 of the Limitation Act will apply, the same result is
achieved in an appeal under the Marriage Act, as well, in view of
the legislative scheme adopted in Section 28 of the Act making
the decree "appealable as decrees of the court made in the
exercise of original jurisdiction. It was found that by long usage
the term "certified copy" has obtained a special meaning in view
of the provision in Section 76 of the Evidence Act; and that term,
when used in connection with an appeal and with reference to
the order against which the appeal is filed, has always been
understood as the copy which the party preferring the appeal
obtains under Section 76 of the Evidence Act on payment of the
necessary fee. It was held that Section 23(4) of the Hindu
Marriage Act only enables the applicant to obtain a copy free of
cost; but does not statutorily prescribe the time during which the
copy has to be delivered; S.23(4) does not advance the
contention of the appellant that the time required to obtain the
certified copy cannot be excluded. S.23(4) does not advance the
contention of the appellant that the time required to obtain the
certified copy cannot be excluded.
29. In the case before us the Rules only provide for a copy
of the award/judgment to be accompanied with the memorandum
of appeal. The nature of the copy is not specified in the Rules.
But going by Section 74 of the Indian Evidence Act, 1872,
documents forming the acts, records of the acts of official bodies
and Tribunals are public documents. Section 76 provides for the
procedure to be followed in issuing a certified copy, which forms
the duty of every public officer having the custody of a public
document to issue the same, as and when there is a demand for
the same on payment of fees. As per Section 77 of the Evidence
Act the contents of public documents can be proved on
production of certified copies of the same. Therefore, when the
Rules provide that the memorandum of appeal should be
accompanied by a copy of the award/judgment, such copy of
judgment referred to therein should be a certified copy. Section
76 of the Indian Evidence Act reads as follows:
"76. Certified copies of public documents:-
Every public officer having the custody of a public
document, which any person has a right to inspect,
shall give that person on demand a copy of it on
payment of the legal fees therefor, together with a
certificate written at the foot of such copy that it is
a true copy of such document or part thereof, as the
case may be, and such certificate shall be dated and
subscribed by such officer with his name and his
official title, and shall be sealed, whenever such
officer is authorized by law to make use of a seal;
and such copies so certified shall be called certified
copies.
Explanation:- Any officer who, by the ordinary
course of official duty, is authorized to deliver such copies,
shall be deemed to have the custody of such documents
within the meaning of this section."In the present case
the statute does not require that the copy being sent
to the party under Section 168 (2) should be
authenticated.
Even if it bears the seal of the Tribunal, it would not bear the
details as required in Rule 254 of the Civil Rules of Practice. For
the purpose of calculating the period of limitation for filing
appeal, these particulars are essential. Under Section 12(2) of
the Limitation Act, the period between date of application and
date of receipt of certified copy of the award is liable to reckoned
for calculating the period of Limitation. Relevant portion of
Section 12 reads as follows:
12. Exclusion of time in legal proceedings.--(1)
(2) In computing the period of limitation for an appeal
or an application for leave to appeal or for revision or for
review of a judgment, the day on which the judgment
complained of was pronounced and the time requisite for
obtaining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed shall
be excluded..
30. It is pertinent to note that the copy of the award which
is required to be delivered by the Tribunal under Section 168 (2)
does not insist for any of the details to be endorsed on it. There
is a specific provision for filing appeal i.e, Section 173 of the Act,
the procedure for which is provided in Chapter X of the Rules,
according to which the provisions in Civil Rules of Practice are
applicable mutatis mutandis. When there is a specific provision,
which makes the provisions in Civil Rules of Practice applicable,
we are of the view that it is a certified copy of the
award/judgment which should accompany the appeal
memorandum and the word "copy" appearing in Rule 396 of the
Rules is to be read and understood as certified copy, in terms of
the provisions contained in Civil Rules of Practice, which is also
made applicable. We do not find any reason to interpret the
provision in Section 168 (2) to mean that an appeal under
Section 173 can be filed along with the copy of the award to be
sent by the Tribunal to the party dehors the provisions in Civil
Rules of Practice, which is specifically made applicable to the
proceedings in the Tribunal as well as the appellate court, which
may or may not contain the authentication, the details of date of
application, date of calling stamp, date of delivery etc.
31. Therefore we find that it will be in the interests of all
the parties to a claim, especially the claimants that the copy of
the award, which should be filed along with the appeal as
envisaged in Rule 396 of the Rules should be authenticated and
should contain the particulars no.1 to 11 specified in Rule 254 of
the Civil Rules of Practice and therefore the free copy under
Section 168(2) cannot be accepted in substitute of the certified
copy. We find that issuing of copy of the judgement or award by
the court under Section 168(2) is not for the purpose of filing an
appeal and such an interpretation will not be in any way
beneficial to the parties, as the period of limitation runs from the
date of receipt of the copy. Therefore we do not find it necessary
to withdraw the directives contained in the judgment reported in
Habeeb Vs Sebastian supra.
The reference is answered accordingly.
Sd/-
T.R.RAMACHANDRAN NAIR
Judge
Sd/-
A.V.RAMAKRISHNA PILLAI
Judge
Sd/-
P.V.ASHA
Judge
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