Avtar Chand & Anr vs. Satwinder Singh and Anr. CMP(M) No. 1368 of 2026 in RSA No. 368 of 2006 Reserved on: 03.09.2026 Decided on: 11.09.2026 __.09.2026 Present: Mr B.P. Sharma, Senior Advocate, with Mr Arun Kumar, Advocate for the appellants/applicants. The applicants/appellants have filed the present application for condonation of delay in filing an application for restoration of RSA No. 368 of 2006, which was dismissed on 22.12.2008 for non-prosecution by this Court. 2. It has been asserted that applicant no. 1 was a minor at the time of the passing of the order as his date of birth is 03.08.1994. The applicant no. 2, Smt. Sita Devi, is an illiterate and rustic lady, who could not understand the implications of the order due to misunderstanding and a communication gap. The applicants came to know about the outcome of RSA No. 365 and 366 of 2006, and they filed a Special Leave to Appeal (Civil) No. 22673 of 2026 before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India granted liberty to the applicants to restore the appeal dismissed-in-default. The registry objected to the application for restoration on the ground of limitation. The applicants have a rustic background, and they did not 2 know the technicalities of law. They could not file an application for restoration within time. The applicants were ready to deposit the cost of ₹700/- and the certified copy of the learned Trial Court's judgment. Therefore, it was prayed that the present application be allowed and the delay in filing the application be condoned. 3. I have heard Mr B.P. Sharma, learned Senior Advocate, assisted by Mr Arun Kumar, Advocate, learned counsel for the appellants. 4. Mr B.P. Sharma, learned Senior Advocate for the applicants/appellants, submitted that this Court erred in dismissing the appeal for non-prosecution because the provisions of Order XVII Rules 2 and 3 enable the Court to pass the judgment forthwith and do not enable the Court to adjourn the matter. In the present case, the matter was adjourned and was not dismissed forthwith. He relied upon the judgment of the Hon'ble Supreme Court of India in Prakash Chander Manchanda and another Smt. Janki Manchanda AIR 1987 SC 42 in support of his submission. 5. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 3 6. Chapter 1 of Volume V of the Rules and Orders of the Punjab High Court as applicable to the State of HP reads as follows: — PART A. Paragraph 2(b): 2. Every memorandum of appeal shall be accompanied by copies of the decree and judgment, as prescribed by Order XLI, Rule 1 of the Civil Procedure Code. In the case of Second Appeals, in addition to the documents prescribed by Order XLI, Rule 1 of the Code, the memorandum shall be accompanied by a copy of the judgment of the Court of First Instance unless the appellate court dispenses therewith. 7. Rule 2 was added to Order 41 CPC by the Punjab High Court, which reads as follows: — “R. 2. In addition to the copies specified in 0.41 R-1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith.” 8. The record of the present appeal shows that an appeal was filed before this Court without the judgment and decree of the learned Trial Court, which is required as per Punjab High Court Rules and Orders as applicable to the State of HP. An application for seeking exemption from filing the certified copy of the judgment and decree of the learned Trial Court was filed, which was allowed by the Court on 12.12.2007 and 4 weeks were allowed to file the certified copy. However, the certified copy was not filed till 22.12.2008, and the Court passed an order that a last opportunity was granted to file the certified copy of the 4 judgment within 8 weeks, subject to deposit of ₹700/- with Himachal Pradesh High Court Bar Association and in case of non-payment of the cost or non-compliance, the appeal would stand dismissed for non-prosecution. The order was not complied with, and the appeal stood dismissed for non-prosecution. 9. The effect of not filing the certified copy of the judgment and decree of the learned Trial Court was that the appeal was not a competent appeal before this Court, and the Court accepted the appeal subject to filing the certified copy within the time granted by it. When the certified copy was not filed, the exemption stood withdrawn, and the appeal became non-existent. Dealing with almost a similar situation wherein the printed copy as required under the rules was not filed, it was laid down by Kerala High Court in Vediyeri Chandroth Reghunathan Nambiar v. Alora Janu, 1995 SCC OnLine Ker 97: AIR 1995 Ker 334 that the appeal is not competent in the absence of the printed copy of the judgment and if the printed copy is not filed within the time provided by the Court, the appeal is non-existent. It was observed at page 335: 4. As held by this court in Muthukaruppan v. Chellayi, 1973 KLJ 265 the acceptance of the earlier appeal A.S. 80 of 1991 filed along with the certified copy of the judgment of the trial court was only a provisional acceptance in terms of R. 258 of the Civil Rules of Practice and the plaintiff was obliged 5 to produce the printed copy of the judgment of the trial court within the time granted by the appellate Court for that purpose or within any extended time that may be obtained for that purpose. The plaintiff did not produce the printed copy of the judgment, and consequently the dismissal of A.S. 80 of 1991 for non-production of the printed copy of the judgment was clearly justified….. 5. Under Order 41, Rule 1 of the Code of Civil Procedure, a Memorandum of Appeal has to be accompanied by a copy of the decree appealed from and a copy of the judgment on which it is founded unless, of course, the appellate Court dispenses with the production of the judgment. Rule 258 of the Civil Rules of Practice insists that when a copy of the judgment is applied for, for the purpose of appeal, the copy shall be printed if the length of the judgment exceeds 700 words. Rule 258(2) provides that in a case where the party who is bound to produce a printed copy of the judgment files an appeal without production of the printed copy, he was obliged to file a petition for the provisional acceptance of the manuscript or typed copy of the judgment he produced with the appeal particularly stating that he had applied for a printed copy of the judgment but had not received the same. It is therefore clear that the acceptance of the appeal A.S. 80 of 1991 filed in the first instance by the plaintiff was only a provisional acceptance of that appeal and the dismissal of that appeal on the ground that the plaintiff did not produce the printed copy of the judgment within time was perfectly justified in terms of the provisions noticed above. But the dismissal of that appeal for non-production of the printed copy of the judgment cannot be treated as a final adjudication of the appeal in view of the fact that the appeal itself had not been finally accepted but had only been provisionally accepted in terms of R. 258(2) of the Civil Rules of Practice. When an appeal is dismissed for default for non-production of the printed copy of the judgment, it can only mean that the appellate Court has withdrawn the provisional permission given by it to the appellant to appeal against the decree of the trial court without 6 producing the printed copy of the judgment along with the Memorandum of Appeal……. 10. In the present case also, the certified copy of the judgment and decree passed by learned Trial Court was not filed and the appeal was incompetent on the date of its presentation. The Court had granted time, but the order was not complied with, which means that the appeal remained incompetent, and the order of the Court merely stated the obvious that the appeal would stand dismissed as incompetent, even though the word non-prosecution was used. Hence, it is impermissible to restore an incompetent appeal. 11. It is undisputed that two other appeals, RSA No. 365 of 2006, were also filed by the appellants/applicants against the same judgment and decree, which were taken up for hearing by the Court. An objection was raised by the respondent that the appeal is not maintainable in view of the dismissal of the present appeal, and the Court framed a substantial question of law on 15.10.2024. When the appeal was taken up for final hearing on 10.03.2026, a submission was made on behalf of the appellant that the dismissal of the present appeal will not have any effect on the other appeal because one of the plaintiff's/defendants can obtain the reversal of the whole decree as per Order 41 Rule 4 of the CPC. This Court negated 7 the submission and held that the dismissal of the present appeal would have the effect of confirming the decree and would constitute res judicata. Hence, the Court dismissed the other appeals preferred by the applicants/appellants. Thereafter, the appellants/applicants filed an appeal before the Hon'ble Supreme Court of India, and when the applicants/appellants were confronted with the finding of this Court, the Special Leave to Appeal was withdrawn with liberty to take steps for the restoration of the appeal dismissed in default. 12. Therefore, it is apparent that the applicants/appellants were aware of the fact that the present appeal stood dismissed. The applicants/appellants were also aware of the fact that the Court had framed a substantial question of law regarding the dismissal of the present appeal in the year 2024. However, the applicants/appellants failed to take any steps for the restoration of the appeal, and they awaited the decision of the RSA No. 366 of 2006 preferred by them. They challenged the judgment and decree of this Court before the Hon’ble Supreme Court of India, and when they were unsuccessful before the Hon'ble Supreme Court of India, they filed the present application. This conduct does not show any bona fide intention but an attempt to wait for the outcome of another appeal and, after being unsuccessful, 8 to revive the present appeal, which was dismissed-in- default in the year 2008. 13. It was submitted that applicant no. 1 was a minor and he was born in the year 1994. This plea will not help the applicants because applicant no. 1 had attained majority in the year 2012 and could have taken steps immediately after attaining the majority to get the appeal restored. However, he failed to do so and continued to prosecute the RSA No. 366 of 2006, contending that the dismissal of the present appeal will not affect RSA No. 366 of 2006. Therefore, he cannot take advantage of his minority. 14. The judgment in Prakash Chander Manchanda (supra) deals with Order 17, which is not involved in the present matter. Hence, the cited judgment does not apply to the present case. 15. The application has not mentioned any reason for the condonation of delay except that applicant no. 1 is a minor and applicant no. 2 is a rustic old lady. These are no considerations because the applicants were duly represented by Senior Advocates before this Court, and it is not the case of the applicants that competent legal advice was not provided to them. 9 16. Therefore, the application does not constitute any cause, much less a sufficient cause for the condonation of delay. Hence, the delay in filing the application for restoration cannot be condoned. 17. Consequently, the present application fails and is dismissed. Cr. MP No. 21609 of 2026 18. Since the application for condonation of delay has been dismissed, the present application for restoration/recalling of order dated 22.12.2008, vide which RSA No. 368 of 2006 has been dismissed for want of prosecution, is dismissed as barred by limitation. (Rakesh Kainthla) Judge 11th September, 2026 (Nikita)