1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE G.M.AKBAR ALI DATED:16.08.2012 W.A.SR.NO.5137 OF 2011 N.Seethalakshmi .... Appellant/Petitioner Vs. 1. The Secretary to Government, Government of Tamil Nadu, Revenue Department, Fort St.George, Chennai – 600 009, 2. The Commissioner of Land Reforms, Chepauk, Chennai – 5, 3. The Assistant Commissioner of Urban Land Tax, Trivendrum High Road Murugan Kurichi, Palayamkottai, Tirunelveli, 4. The Tamil Nadu Slum Clearance Board, rep.by Executive Engineer, Palayamkottai, Tirunelveli-7. ... Respondents/Respondents Prayer: Maintainability of W.A.SR.No.5137 of 2011 preferred against Order dated 3.11.2010 made in W.P.(MD) No.25 of 2009, placed before Court. Prayer in WP.(MD)No.25 of 2009 : Writ Petition has been filed under Article 226 of the constitution of India praying for the issuance of writ of certiorarified mandamus calling for the records relating to the impugned order of respondent in G.O.Ms.No.254 Revenue (Urban land V2) Dept., dated 22.03.2006 and quash the same and consequently direct the respondents 1 to 4 herein not to interfere with the peaceful possession and enjoyment of the petitioner in S.Nos.693/2 and 696/3 ad-measuring 0.54.5 hectares and 0.55.0 hectares respectively in Kulavanigarpuram, Palayamkottai Taluk, Tirunelveli District except without following the due process of law. For Appellant : Mr.D.Veera Kathiravan ORDER (Order of the Court was made by R.BANUMATHI,J.) In a Letters Patent Appeal under Clause 15, whether it is mandatory that Memorandum of Writ appeal be accompanied by a certified copy of the Judgment and decree of the order appealed against is the point falling for consideration. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Challenging the demand and levy under Tamil Nadu Urban Land Ceiling and Regulation Act, the petitioner/appellant filed a writ petition in W.P.(MD) No.25 of 2009. The said writ petition was dismissed on 3.11.2010. 3. Challenging the dismissal of Writ Petition, Writ Appeal in W.A.SR.No.5137 of 2011 was filed on 28.1.2011. The same was returned by the Registry for filing certified copy of Order in W.P.(MD) No.25 of 2009 and further returned to state as to whether appeal is filed in time and if not delay petition has to be filed. 4. W.A.SR.No.5137 of 2011 was re-presented along with M.P.SR.No.67115 of 2011 for praying to condone the defective presentation of the Writ Appeal S.R.No.5137 of 2011 and permit the petitioner to prefer the writ appeal with the following endorsement: "We have filed this Writ Appeal within a limitation period, but at the time of filing we have not enclosed the original order copy. Hence this is defective representation; so there is no need for delay petition. Hence this petition is maintainable." 5. Registry has raised the objection stating that the certified copy of the order in W.P.(D) No.25 of 2009 was obtained in time; but the same was filed only on 12.12.2011 and hence there is a delay of 318 days. But the petitioner declined to file the application to condone the delay. Registry raised the query regarding maintainability as to whether the appeal is filed in time. Hence, W.A.SR.No.5137 of 2011 was posted in the Court under the caption "for maintainability". 6. The learned counsel for petitioner Mr.Veera Kathiravan submitted that the appeal preferred under Clause 15 of the Letters Patent Appeal is only an intra-Court Appeal and therefore when writ appeal is filed, filing certified copy of the judgment is not an essential pre-requisite. Learned counsel would further submit that as per Order IV Rule 29 of the Madras High Court Appellate Side Rules, every appeal under Clause 15 of the Letters Patent, the memorandum of the grounds of appeal shall be filed in duplicate and it is not mandatory to file certified copy of the judgment. The learned counsel would further submit that when appeal is filed under Appeals from Original decrees are filed, under Order XLI Rule 1 C.P.C, the memorandum of appeal shall be accompanied by copy of the judgment and the same is not a mandatory requirement under Order IV Rule 29 of Madras High Court Appellate Side Rules. Placing reliance upon a decision of the Supreme Court in BADDULA LAKSHMAIAH AND OTHERS VS. SRI ANJANEYA SWAMI TEMPLE AND OTHERS, (1996-2- LW.8), learned counsel submitted that the Letters Patent Appeal is an Intra-Court Appeal sitting as a Court of Correction and therefore filing of presentation of memorandum of appeal itself is a sufficient presentation and it is not mandatory to file the certified copy of the order. 7. In this regard, we have asked Mr.K.Chella Pandian, learned Additional Advocate General to assist the Court as amicus curiae. The learned Additional Advocate General submitted that as per the Appellate Side Rules, the memorandum of appeal is to be drawn up in accordance with the provisions of Order XLI Rule 1 C.P.C and as per the said provision, https://hcservices.ecourts.gov.in/hcservices/ 3 the memorandum of appeal shall be accompanied by the copy of the judgment. 8. We have considered the submissions of the learned counsel for the petitioner and the learned amicus curiae/Additional Advocate General and the relevant rules. 9. The presentation of these appeals is dealt with in Order IV Rule 29 which reads as under: "Rule 29: In every appeal under clause 15 of the Letters Patent, the memorandum of grounds of the appeal shall be filed in duplicate. 10. Order IX of Appellate Side Rules of Madras High Court deals with PREPARATION OF RECORD IN PROCEEDINGS (OTHER THAN ORJIGINAL SIDE APPEALS AND APPEALS AGAINST ORIGINAL DECREES OF SUBORDINATE COURTS IN SUITS) INCLUDING REFERENCES.” Order IX Rule 3(v) of Appellate Side Rules of Madras High Court deals with writ appeals preferred under Clause 15 of Letters Patent. Order IX Rule 3(v) reads as under: "In appeals under Clause 15 of the Letters Patent against judgments in petitions for writs under Article 226 of the Constitution, the papers filed by the appellant shall include the petition, affidavit, counter-affidavit, reply affidavit and other papers, if any, filed in the writ petition, the judgment of the High Court and the memorandum of grounds of appeal." 11. Order XLI-A C.P.C. deals with “APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDIANTE COURTS”. The rules contained in Order XLI-A, as amended by the Madras High Court, shall apply to appeals in the High Court from the original decrees of subordinate courts. Order XLI-A Rule 2(1) contains the procedure for presenting the memorandum of appeal, which reads as under: “The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court for the sum prescribed by the rules of Court.” 12. As far as the "Letters Patent Appeal" are concerned, they are governed under Order XLI-B C.P.C. Under Order XLI-B Rule 1 of C.P.C, the rules of Order XLI-A (Appeals to the High Court from Original Decrees of Subordinate Courts) shall apply, so far as may be, to appeals to the High Court of Madras under clause 15 of the Letters Patent of the said Court: Provided that it shall not be necessary to file copies of the judgment and decree appealed from. 13. On a combined reading of Order XLI-A Rule 2(1) and Order XLI-B Rule 1 of C.P.C., it is clear that for filing appeals to the High Court from original decrees of subordinate courts, twelve printed copies of judgment, one of such copies being a certified copy is necessary. As per https://hcservices.ecourts.gov.in/hcservices/ 4 proviso to Order XLI-B Rule 1 of C.P.C, for filing a Letters Patent Appeal, it shall not be necessary to file copies of the judgment and decree appealed from. 14. By reading of Order IX Rule 3(v) of Appellate Side Rules, it is clear that for filing writ appeal, the papers filed by the appellant shall include the petition, affidavit, etc., and also the judgment of the High Court. Order XLI-B of C.PC. dispense the need to file copies of judgment and decree appealed from. Therefore, when a writ appeal is filed without enclosing the judgment of the High Court in the Writ Petition, in view of Order XLI B, the said writ appeal can be taken on file. However, we are of the view that the appellant should make an endorsement undertaking to produce the copy of judgment at the time when the writ appeal comes up for admission. 15. Even though the appeal under Clause 15 of the Letters Patent is an intra-Court appeal, burden is on the appellant to show that the said judgment is wrong. When an appeal is filed challenging the order passed in the writ jurisdiction, in order to examine the correctness of the said order, it is desirable that memorandum of appeal be accompanied by a certified copy of the judgment. Only if the certified copy of judgment is filed, the Court can examine whether Letters Patent Appeal is a fit case for admission or not. Therefore, even if the writ appeal is numbered without copy of the judgment in the writ petition, it is desirable that the appellant produces the same at the time when the writ appeal comes up for admission. 16. Under Article 117 of the Limitation Act, any appeal against Writ Petitions and Writ Miscellaneous Petitions has to be filed within a period of 30 days from the date of order. 17. Now, let us consider whether there is delay in filing the present appeal. In the case on hand, the order in Writ Petition was passed on 3.11.2010 and the appellant filed the copy application on the same day i.e., 3.11.2010. The order copy was made ready on 28.12.2010. The writ appeal has to be filed within a period of 30 days from the date of order. However, the appeal papers were filed before the Court on 28.1.2011 without enclosing the order made in Writ Petition. So, even at the time of presentation, there was a delay in filing the appeal papers i.e., after excluding the limitation period of 30 days to file the appeal, as the appeal against order in writ petition has to be filed within 30 days from the date of order made in writ petition, irrespective of the date the order was made ready. 18. It is also found on record that the appellant has obtained the order made in writ petition in time i.e., on 28.12.2010. However, the same was filed only on 12.12.2011 with considerable delay. Thus, in the present case, there is a delay on both counts i.e., in filing the writ appeal as well as representing the appeal papers. 19. Therefore, Registry rightly directed the appellant to file the appeal along with application to condone the delay, without which matter cannot be proceeded further. The appellant is directed to file necessary applications both for condoning the delay in filing the writ appeal as https://hcservices.ecourts.gov.in/hcservices/ 5 well as condoning the delay in representation of the writ appeal. The appellant shall comply with the direction within one week from the date of receipt of copy of the order. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To 1. The Secretary to Government, Government of Tamil Nadu, Revenue Department, Fort St.George, Chennai – 600 009, 2. The Commissioner of Land Reforms, Chepauk, Chennai – 5, 3. The Assistant Commissioner of Urban Land Tax, Trivendrum High Road Murugan Kurichi, Palayamkottai, Tirunelveli. 4. The Executive Engineer, The Tamil Nadu Slum Clearance Board, Palayamkottai, Tirunelveli-7. Usk SR : 11.09.2012 : 5p/5c W.A.SR.NO.5137 OF 2011 16.08.2012 https://hcservices.ecourts.gov.in/hcservices/