RSA No.888 of 1982 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.888 of 1982 Date of decision: 17.02.2010 Kartar Singh and another ............Appellants Versus Tulsi (died) through LRs and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Ms. Alka Sarin, Advocate for the appellants. Mr. Yogesh Kumar Sharma, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment?yes 2. To be referred to the Reporters or not?yes 3. Whether the judgment should be reported in the Digest?yes ALOK SINGH, J. 1. This appeal was filed way back in 1982. A perusal of the memo of appeal shows that no substantial question of law has been formulated therein as required under Section 100(3) of the Code of Civil Procedure. Not only this, when this appeal was admitted by this Court vide order dated 22.07.1982, no substantial question of law was formulated by this Court too as required under Section 100(4) of the Code of Civil Procedure. 2. On being asked, Ms. Alka Sarin stated that substantial questions of law were filed in the Court on RSA No.888 of 1982 -2- 28.03.2007, which were taken on record by the Court. She further submitted that once questions of law were taken on record by the Court vide order dated 28.03.2007, the same may be formulated as substantial questions of law. 3. She further stated that non formulation of substantial question of law in the memorandum of appeal as well as at the time of admitting the appeal was because of dictum of the Full Bench of this Court in the matter Ganpat v. Smt. Ram Devi reported in 1978 P&H 137. It was stated by both the Counsel that judgment passed by the Full Bench in the matter of Ganpat (supra) was overruled by the Hon'ble Apex Court in the matter of Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others reported in AIR 2001 S.C. 1273 . Hence, learned Counsel for the appellants argued that after the judgment of the Hon'ble Apex Court in the case of Kulwant Kaur (supra), appellants should not be suffered for no fault of them and must be permitted to rectify the mistake by invoking Rule 2 or Order 41 C.P.C. 4. I have given my serious thought to the argument of learned Counsel appearing for the appellants. Undisputedly, judgment of Apex Court in Kulwant Kaur (supra) came in the year 2001. No step was taken by the appellant in nine years to formulate substantial questions of law in the memo of appeal by moving amendment in view of change of law. There should be some limit of negligence. Law does not help those who do not help themselves. Appellants were sleeping over the appeal for RSA No.888 of 1982 -3- last nine years and now when appeal is being taken up, learned Counsel for the appellants started arguing that since appeal was admitted in the year 1982 without formulating substantial questions of law, hence, this Court should formulate questions of law now without insisting formulation of questions of law in the memo of appeal or in any case, by permitting the appellants, to formulate substantial questions of law in the memo of appeal by way of amendment. 5. Learned Counsel for the appellants has not moved any application seeking permission to amend the memo of appeal incorporating substantial questions of law and additional grounds therein under Rule 2 of Order 41 C.P.C. 6. Full Bench of this Court in the case of Bikram Dass vs. The Financial Commissioner, Revenue Punjab, Chandigarh and others reported in AIR 1975 P&H 1(1) has ruled that memorandum of appeal can be rejected at the subsequent stage also i.e. even after admission of appeal. 7. Rule 10 of Volume I Chapter 14 Part B of Punjab and Haryana High Court Rules and Order reads as under:- “10. Amendment after admission – When an appeal has been registered and a date has been fixed for hearing, the petition cannot be returned for amendment. The appeal must be disposed of in the regular manner by dismissal, or by a judgment affirming, varying or reversing the decree of the lower Court. If the appellant should RSA No.888 of 1982 -4- desire to urge any ground of objection not set forth in the memorandum of appeal, he can, under the provisions of Order XLI, Rule 2, of the Code of Civil Procedure, do so only with the permission of the Court and such permission should ordinarily be applied for in writing some time before the date fixed for the hearing, under Order XLI Rule 12, of the Code, in order that the respondent may have sufficient opportunity of contesting the case on that ground, without the necessity of a postponement.” 8. The same issued came before me in the matter of Bikkar Singh and others v. Jalaur Singh and others in RSA No.861 of 1981 (O&M) decided on 16.02.2010, in which Ms. Alka Sarin, Counsel for the present appellants was also one of the Counsel for the appellants. In the appeal Bikkar Singh (supra), I have held :- "Keeping in mind the dictum of the Hon'ble Apex Court in the matter of Uday Shankar Triyar (supra) and Kailash (supra), it can very well be said that jurisdiction of this Court to permit the appellants to formulate substantial questions of law in the memo of appeal is not taken away, it can be exercised when facts and circumstances of that case permits, however, that latitude cannot be given in each and every case. Ordinarily no latitude can be given in the RSA No.888 of 1982 -5- appeal which were filed after the judgment of the Hon'ble Apex Court in Kulwant Kaur's case (supra)." 9. Since, no application has been moved seeking permission from this Court to amend the memorandum of appeal incorporating new ground and substantial questions of law therein, which ought to have been moved prior to the date of hearing as per Rule 10 of High Court Rules (supra), hence, I have no other option except to reject the memo of appeal by invoking Rule 3 of Order 41 C.P.C. 10. Memorandum of appeal stands rejected with no order as to costs. ( ALOK SINGH ) JUDGE 17.02.2010 ashish