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State of Rajasthan v/s M/s. Jaipur Hosiery Mills (Pvt.) Limited

    Civil Second Appeal No. 47 of 1983

    Decided On, 07 March 1996

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE ARUN MADAN

    For the Appellant: N.C. Goyal, Advocate. For the Respondent: M.C. Surana, Advocate.



Judgment Text

1. This second appeal has been preferred by the appellants against the judgment and decree dated 12th January, 1982 passed by Additional Distt. Judge No. 2, Jaipur City, Jaipur, in Civil Appeal No. 211 of 1977 whereby he partially confirmed the decree dated 3-5-1977 passed by Additional Civil Judge, Jaipur City, Jaipur in Civil Suit No. 46/1976 for declaration, injunction and damages.

2. Facts giving rise to the filing of this appeal, briefly stated, are that plaintiff-respondent No. 1 M/s. Jaipur Hosiery Mills Pvt. Ltd. was assessed to Sales Tax by the Commercial Tax Officer, Special Circle-II, Jaipur (for short C.T.O.). The assessment orders for the years 1963-64 to 1967-68 were passed on 5-9-1972 vide Exs. 41 to 45 on the record. The respondent did not challenge the assessment orders passed by the C.T.O. in appeal or revision nor it took any appropriate proceedings within the Rajasthan Sales Tax Act but instead filed a regular suit in the Court of Civil Judge, Jaipur, City, Jaipur challenging the legality of the assessments orders on various grounds. The grievance of the respondent was that the assessment orders have been passed in violation of provisions of Sales Tax Act and in defiance of stay order passed by a higher tax Authority. The respondent also alleged that since he was not a hosier, the order of C.T.O. to the effect that he was a hosier, was illegal and further no assessment proceedings could be initiated and finalised against the respondent. The total tax liability of the respondent as revealed from the assessment orders which were challenged in the suit before learned Civil Judge, was Rs. 1,28,537/- which the respondent alleged as void and illegal and sought stay of the recovery from the Civil Court. The respondent claimed a sum of Rs. 5000/- on account of damages.

3. The above suit was contested before the trial Court by the appellant State defendant mainly on the ground that the assessment orders were passed in a perfect legal manner and in bona fide exercise of the powers under the Rajasthan Sales Tax Act by the Assessing Authority. The State of Rajasthan disputed the jurisdiction of the Civil Court to entertain the aforesaid suit as the Rajasthan Sales Tax Act provides a complete machinery for, determination of all the questions relating to the liability, assessment etc. and Section 19 of the Rajasthan Sales Tax Act, for short the "Act") specifically bars the jurisdiction of Civil Court to entertain such suits. The suit was also contested on the ground that no notice under Section 80, Civil Procedure Code was served on the appellants prior to the filing of the suit and hence the relief of declaration against the assessment orders was not tenable for want of valid notice.

4. On the pleadings of the parties, learned trial Court framed the following issues :-

1. Whether the plaintiff is not hosier and its main business on and after 1961, has been to manufacture knitted cloth and tailor knitted cloth into garments like Baniyan, Sweaters, Shirts and Jersees etc. ? P.

2. Whether the plaintiff is not liable for Sales Tax in dispute because of exemption certificate dated 12-11-1962 and its subsequent renewals from 1963 to 1968 ? P.

3. Whether the plaintiff is not liable to pay the Sales Tax in dispute under the provision of Section 12 of the Rajasthan Sales Tax Act ? P.

4. Whether the assessment orders dated 59-1975 are nullity and inoperative in law ? P.

5. Whether the orders dated 5-9-1972 are mala fide on the part of defendant No. 2 and what is its effect on the suit ? P.

6. Whether the tax imposed on the plaintiff in pursuance of the orders dated 28-10-1970 or 5-9-

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1972 is in violation of Article 276 of the Constitution of India ? P.

7. Whether the plaintiff is entitled to the damages as claimed in the suit ? P.

8. Whether the notice given by the plaintiff under Section 80, Civil Procedure Code is invalid in eye of law ? P.

9. Whether this Court has got no jurisdiction to prohibit the defendants from effecting the recovery or demand by virtue of assessment order? D.

10. Whether the suit is beyond limitation ? D.

11. Whether the suit is not maintainable against the defendants No. 2 ? D.

12. Whether the Court fees paid is insufficient ? D.

13. Whether the suit is barred under the provisions of the Rajasthan Sales Tax Act and Rules made thereunder and in view of para No. 5 of the Addl. pleas of the written statement ? D.

14. Whether the defendant No. 2 is entitled to a special cost amounting to Rs. 5000/ - ? P.

15. Relief? -.

5. Learned trial Court after recording the evidence of the parties and perusing the documentary evidence decreed the suit. of the plaintiff. Learned trial Judge, however, declined the relief of damages as claimed by the plaintiff. Aggrieved by the judgment and decree passed by the trial Court, the State of Rajasthan preferred an appeal before learned District Judge, Jaipur City, Jaipur which came to be heard and finally decided by Addl. District Judge No. 2, Jaipur City, Jaipur vide order dated 12-1-1982 which is impugned in this second appeal. The first appellate Court confirmed the findings of the Civil Judge, on all the issues by recording a specific finding to the effect that the appellants were not entitled to effect the recovery of Sales Tax vide assessment orders passed by the C.T.O. for the period 1963-64 to 1967-68, since hosiery products of the respondent were exempted from taxation under the Act and, therefore, the appellant was not entitled to effect the recovery of tax against the said items. However, learned first appellate Court declined the relief of recovery of damages which the respondent had claimed against the appellant. Aggrieved by the order of first appellate Court dated 12-1-1982 the appellants, State of Rajasthan and others have preferred this second appeal before this Court. The appeal was admitted for hearing on 22-7-1985 and the following substantial questions were framed :-

1. Whether a suit to question the assessments made under the Rajasthan Sales Tax Act, 1954 and the rules framed thereunder of plaintiff-respondent in respect of accounting years 1963-64 to 1967-68 was competent despite express bar to such proceedings contained in Section 19 of the Act and the existence or adequate remedy provided in the Act in the form of appeal (Section 13), revision (Section 14(2) special appeal (Section 14(4-A) and reference (Section 15) and whether the Civil Court had jurisdiction to entertain such suit ?

2. Whether Section 12 of the Act applies in a case where the appellate authority (Deputy Commissioner Appeals) sets aside the assessment made under Section 10 and remands the case to the assessing authority to pass a fresh order after considering the matter in the light of the observations of the Supreme Court ?

3. Whether the demand notices mistakenly issued without passing a fresh assessment order in the remanded proceedings and such notices also being unaccompanied by assessment order as required by Rule 31, and which had beep issued as per the demand created by the original assessment orders set aside by the appellant authority (Dy. Commissioner, Appeals) had the effect of debarring the assessing authority from finalising the remand proceedings and from passing assessment orders afresh as directed by the appellate authority ?

4. Whether the exemption certificate the obtaining of which was only a condition for availing exemption under notification dated 26th March, 1962 which excluded 'hosiery produce' and hats of all kinds from its ambit and which did not specify different varieties of garments hosiery or otherwise had the effect of granting exemption to banians, chaddies etc, manufactured by the plaintiff-respondent even though they were not covered by the notification merely on the ground that the plaintiff-appellant had sought exemption to garments the value of which does not exceed Rs. 4/- in single piece and had mentioned different varieties of garments-banians, chaddies etc. in this application ?

5. Whether banians and chaddies etc. manufactured by the plaintiff-respondent have knitted fabrics or hosiery cloth are hosiery products within the meaning of notification No. F. 5 (99) B and T / 60 (fated 26th March, 1962 ?

During the pendency of the appeal in this Court cross-objections were filed by respondent No. 1 on 3-5-1983 and the same being within limitation were allowed to be taken on record vide order, dated 20-5-1983 of this Court. In pursuance of direction of this Court the parties have also filed their written submissions.

6. During the course of hearing Shri M. C. Surana, learned counsel for respondent No. 1 has vehemently contended at the bar that the appeal is not maintainable as it is not accompanied by the certified copy of the judgment and decree of Civil Judge, Jaipur City, Jaipur which is mandatory requirement under Order 41, Rule 1, Civil Procedure Code read with Rule 132(c) of the Rajasthan High Court Rules, 1952. It will be pertinent to refer to the provisions of Order 41, Rule 1, C.P.C which stipulate as under:--

"Order 41, Rule 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 decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded :

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."

7. A plain reading of the said provisions makes it abundantly clear that in case of appeals from decrees passed by the Court at the first instance memorandum of appeal shall be accompanied by a certified copy of the decree accept in cases falling within the proviso to sub-rule (1) inserted by amendment of Civil Procedure Code of the year 1976, the Court cannot dispense with the laid provision since the compliance of the Rule is imperative. Thus, under the said rule a party cannot seek exemption or waiver of rule by alleging that since a copy of the judgment appealed against has been filed the filing of the certified copy may be dispensed with. The matter was concluded by the decision of the Apex Court in the matter of Jagatdheesh v. Jawaharlal, (1961) 2 SCR 918 wherein the Apex Court held that it is imperative that a copy of the decree should be filed with the memorandum of appeal and that the appellant is entitled to deduction of time taken up in obtaining the certified copy of the decree where he has applied for it but the same has not been furnished by the office because it has not been drawn up and in such situation the appeal would not be held to be incompetent. In appropriate cases the Court has also the power to dispense with the production of the certified copy of the judgment and where it has not been dispensed with, its production is mandatory.

8. The provision of Rule 132 of the Rajasthan High Court Rules, 1952 is relevant to be referred to in this context :-

"Rule 132 : Every memorandum of appeal or application for revision shall be accompanied by :-

(a) a copy of the decree or formal order against which the appeal or application is directed;

(b) a copy of the judgment upon which such decree or formal order is founded;

(c) a copy of the judgment of the Court of first instance where the appeal or application is directed against an appellate decree or order;

(d) in the case of a memorandum of appeal which is filed after the expiry of the period of limitation, an application supported by an affidavit for extension of the period of limitation under Section 5 of the Indian Limitation Act, 1908:

Provided that if the copies of the judgments referred to above are hand-written, they shall further be accompanied by uncertified typed copies.

Provided that the Court may for sufficient cause shown dispense with a copy of the formal order under clause (a) or a copy of the judgment under clause (b) or (c)".

9. From the perusal of the above rule it is apparent that the Court has inherent powers to dispense with the copy of the formal order under clause (a) or a copy of the judgment under clause (b) or (c) if the proper application is made by the aggrieved party explaining the sufficient cause for not filing the certified copy of the decree or order but where no such application is moved the Court is not obliged to dispense with the filing of the certified copy of the decree or order and in absence of sufficient cause explained by the appellant in this regard.

10. The contentions which were advanced by Shri Surana at the bar are twofold :-

(a) that the appeal is barred by limitation and the delay of 47 days has not been explained by the appellant, and

(b) that the appeal was filed by an incompetent person who was not authorised to present the appeal as on the date when it was filed in this Court i.e., 6-11-1982.

11. As regards the first contention it was contended by Shri Surana that the appeal was presented in this Court on 7-7-1982. It was only accompanied by the decree and judgment of the first appellate Court, i.e., Addl. District Judge No. 2, Jaipur City, Jaipur and the certified copy of the judgment and decree shows that it was obtained on 19-4-1982. The record of the case shows that an objection was raised by the registry of this Court that the appeal is not accompanied by the judgment of the Court of first instance, i.e., the Civil Judge, Jaipur City, Jaipur. The appeal remained in defects from July, 1982 to 4th February, 1983 when the copy of the judgment Court of first instance was produced on the record of this Court A perusal of the certified copy of the judgment and decree of the Civil Judge, Jaipur City, Jaipur reveals that though the copy was ready on 7-12-1982 and its delivery was obtained from the copying department on 8-12-1982, Certified copy of the said judgment and decree war not produced on the record of the case before 4th February, 1983. This fact is borne out from the record that the certified copy of the decree of the Court of first instance, i.e., Civil Judge, Jaipur City, Jaipur was produced on the record of this Court by the appellant after 58 days later after obtaining the same from the copying department. The appellant filed the appeal on 7-7-1982 after obtaining the copy of the judgment and decree of the first appellate Court on 19-4-1982, i.e., after 79 days of obtaining certified copy of the judgment and decree of the first appellate Court but the certified copy of the judgment of the Court of first instance, i.e., Civil Judge, Jaipur City Jaipur was produced by the appellant belatedly on 4-2-1983 notwithstanding the fact that he had obtained the same earlier on 8-121982, i.e., they took 58 days time in filing the same before this Court. In this regard I am of the opinion that copy of the judgment of the Court of first instance had been filed by the appellant alongwith certified copy of the judgment of the first appellate Court notwithstanding the expiry of 79 days and obtaining the judgment and decree of the first appellate Court, then the appeal would have been within time since limitation for filing second appeal is 90 days, but the appellant took 79 days + 58 days = 137 days - 90 days = 47 days and this delay of 47 days has neither been explained by the appellant by not filing an application under Section 5 of the Limitation Act nor the delay has been explained from the affidavit dated 10-10-1983 of the C.T.O. (Litigation), Jaipur which has been filed alongwith memorandum of appeal. A perusal of the said affidavit filed by Shri Madan Lal Natani, C.T.O. (Litigation) Headquarters, Jaipur reveals that the filing of this appeal was sanctioned by the Law Department on 27-11983; whereas the appeal was filed much earlier prior to obtaining the sanction on 611-1982. This evidently means that as on the date when the appeal was presented to this Court, i.e., 6-11-1982 the appeal was not filed by a competent person since no sanction from the Law Department had been obtained on the said date and the sanction from the Law Deptt. was obtained subsequently on 27-11983 cannot be retrospectively reckoned to the benefits of the appellants. From para 5 of the said affidavit it is clear that the judgment of the first appellate Court was filed alongwith the memo of appeal and the certified copy of the order of Civil Judge was filed on receipt of the copy from the Court, i.e., after the delay of 58 days as referred to above. Thus, in my considered opinion the appeal is barred by limitation of 47 days which has not been explained on the record. The contentions of Shri Surana, learned counsel for the respondent have sufficient force in this regard.

12. The reason why Shri Surana, learned counsel for the respondent was called upon to argue the matter at the first instance was in view of the preliminary objections raised by the respondent regarding maintainability of this appeal as the same is barred by limitation. Hence instead of going into the question of merits of the appeal at the first instance, this Court deemed it proper to hear the learned counsel for the respondent regarding maintainability of this appeal on the question of limitation. Perusal of the record further reveals that from July, 1982 to 4th February, 1983 the appeal remained in defects for which no explanation has been furnished by the learned counsel for the appellants. With regard to the first preliminary objection of the respondent on the question of limitation for filing second appeal the position has been stated as under :-

1. Date of judgment and decree of the first appellate Court - 12-1-1982.

2. Date of application filed by the State for obtaining the copy of the judgment and decree - 13-1-1982.

3. Date on which certified copy of the judgment and decree was received by the State - 19-4-1982.

4. Date of filing of memorandum of appeal in the High Court - 7-7-1982. Memorandum of appeal was filed in this Court after 79 days, i.e., after obtaining certified copy of the judgment and decree of the first appellate Court.

5. Date on which certified copy of the judgment of the Court of first instance, i.e., Civil Judge was ready for delivery to the State -7-12-1982.

6. Date on which the copy of the judgment of the Civil Judge was filed in this Court -4-2-1983.

Total time of 58 days was taken in filing the copy of the judgment of the Court of first instance after obtaining the same from the copying department by the State = 58 days as against the limitation of 90 days for filing the second appeal in the High Court as required by Article 116 of the Limitation Act. The appellant took 79 days in presenting the memorandum of appeal plus 58 days in filing the certified copy of the judgment of the civil Judge, in all 137 days were taken in filing the second appeal in this Court. If the limitation of 90 days is deducted from 137 days, then the appeal is obviously barred by 47 days which has neither been explained nor any application under Section 5 of the Limitation Act has been moved in this Court and in absence of sufficient cause in not explaining the delay by the State, there is no justification for condoning inordinate delay of the appellants by this Court.

13. In support of his contentions advanced at the bar, learned counsel for the respondent has placed reliance upon the following judgments :

Firm Mohanlal Ramchandra v. Union of India, 1971 Raj LW 445 ; The State of Rajasthan v. Chander Singh, 1972 Raj LW 47 ; New India Insurance Co. Ltd. v. Smt. Keshar, AIR 1996 Rajasthan 28; The State of Rajasthan v. Chiranji Lal Agarwal, 1970 Raj LW 111 and Labhmal v. Lalchand .

In the matter of Firm Mohanlal Ramchandra v. Union of India (supra) the question which had arisen for consideration of learned Division Bench of this Court was regarding authority of the Asstt. Government Advocate to present the memorandum of appeal when he was not duly authorised by the department to do so with reference to interpretation of the provisions of Order 3, Rule 4(1) and (6) read with Order 27, Rule 8, Civil Procedure Code in relation to any suit by or against the Central Government. A special appeal was preferred by the appellant against the judgment of learned single Judge of this Court in second appeal dismissing its suit for recovery of compensation which was decreed by the trial Court and the first appellate Court. Preliminary objection was taken on behalf of the plaintiff-appellant that the appeal was incompetent as the memorandum of appeal had been presented by Shri Raj Narain who had not been duly authorised to act on behalf of Union of India. This preliminary objection was over-ruled by the learned single Judge. The first contention on behalf of the appellant before this Court was that the preliminary objection was erroneously rejected by the learned single Judge. Reliance was placed on the provisions of Order 27, Rules 1, 2 and 8, Civil Procedure Code which provide as under :--

"Order 27, Rule 1-In any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.

2-Persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.

8-(1) Where the Government undertakes the defence of a suit against a public officer, the Government pleader upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties;

Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree".

With reference to the above provisions in the context of the person duly authorised to sign and present the memorandum of appeal, it was held by this Court that it is not disputed that presenting a memorandum of appeal amounts to acting for the party on behalf of whom the memorandum of appeal was presented. Order 3, Civil Procedure Code deals with recognised agents and pleaders. Rule 1 of this Order lays down that any appearance, application or act in any Court require to be done by a party may be done by the party in person or by his recognised agent or by a pleader. Rule 2 of this Order lays down interalia that recognised agents of parties are persons holding powers-of-attorney authorising them to make and do such appearances, applications and acts on behalf of such parties. The relevant part of Rule 4 Order 3 runs as follows:-

(1) No pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party unless he has filed in Court a memorandum of appearance signed by himself and stating -

(a) the names of the parties to the suit

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorised to appear :

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

(6) No Government pleader within the meaning of Order 27, Rule 8-B shall be required to present any document empowering him to act, but such pleader shall file a memorandum of appearance signed by himself and stating the particulars mentioned in sub-rule (5)".

It was consequently held by this Court that since a Government Advocate cannot act without a general or special authority in writing empowering him to do so and since he is not exempted from the requirements of subrule (1) of Order 3, Civil Procedure Code the then Addl. Advocate General of Rajasthan High Court had no authority to present the memorandum of second appeal in this Court, the second appeal was therefore, incompetent and was consequently dismissed.

In the matter of State of Rajasthan v. Chander Singh (AIR 1971 Rajasthan 299) (supra) the question which had arisen for consideration of this Court was with reference to the competency of the Government Advocate to present the second appeal on behalf of the State. It is with reference to the provisions of Order 27, Rule 8, Civil Procedure Code. The same view was reiterated and re-affirmed by this Court with reference to the competency of the Government Advocate to present the memorandum of appeal in absence of any authority or sanction in writing to present the second appeal in this Court. The second appeal was dismissed by this Court as having not been presented by a competent person.

In the matter of Labhmal v. Lalchand (AIR 1972 Rajasthan 123) (supra) the question which has arisen for consideration of this Court was as to whether a memorandum of appeal which is not accompanied by a copy of the decree passed by the Court of first instance as required by Order 47, Rule 1, Civil Procedure Code can be deemed to be a valid presentation? and whether in absence of the copy of the decree, the filing of an appeal would be incomplete, defective and incompetent? It was held by this Court that the statutory requirement of Order 41, Rule 1, Civil Procedure Code which stipulate that 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 and is mandatory and that the memorandum of appeal has to be accompanied by a copy of the decree appealed from unless dispensed with by the Court concerned. It was further held that requirements of Rule 132 of the Rajasthan High Court Rules, 1952 read with Order 41, Rule 1, Civil Procedure Code are absolutely clear and mandatory. It was further held that Order 41 empowers the appellate Court to dispense with the filing of the copy of the judgment in appropriate cases but there is no jurisdiction in the appellate Court to dispense with the filing of the copy of the decree. In the eye the appeal is not so much against the judgment as against the decree. Therefore, there is no doubt that the copy of the decree should be filed along with the memorandum of appeal and in absence of the decree, the filing of the appeal would be incomplete, defective and incompetent. The appeal was consequently dismissed by this Court since it did not specify the requirements of Order 41, Rule 1, Civil Procedure Code and Rule 132 of the Rajasthan High Court Rules.

In the matter of State of Rajasthan v. Chiranji Lal Agrawal (1970 Raj LW 111) (supra) with reference to competency of the Government Advocate to present the appeal, it was held by this Court that the provisions of Order 27, Rule 8, Civil Procedure Code being in derogation of the ordinary law should be limited to the purposes expressly or impliedly indicated and cannot be extended beyond those purposes. This provision only enables the Govt. pleader to appear and defend public officers but this provision cannot enable the State to file an appeal on behalf of the public officer. It was further held by this Court that the State is not entitled to contend that the decree havinig been varied, it. is entitled to obtain certificate as a matter of right having regard to the valuation of the dispute for showing that the appeal involves some substantial question of law and the second appeal was consequently dismissed.

14. The above view has been affirmed in one of the latest judgments of this Court in the matter of New India Insurance Co., Ltd. v. Smt. Keshar (AIR 1996 Rajasthan 28) (supra) wherein an appeal was filed by the Insurance Company with delay of 16 days and the appeal was not accompanied by an application for condonation of delay under Section 5 of the Limitation Act. The Insurance Company had pleaded that the delay had occurred on account of administrative exigencies and that the same may be condoned. Rejecting the contention of the Ignorance Company, it was held by this Court that since there was gross negligence on the part of the Insurance Company for not filing the" appeal in time and for condoning the delay, no cause 'muchless sufficient cause had been shown and, therefore, for the lethargy and fault of the Insurance Company the claimant should not be made to suffer. It was further held that if the delay is to be condoned mechanically on the ground of administrative exigencies, then in almost all the case the Court has to condone the delay which is never the intention of the Apex Court while laying down the law for condoning the delay on the ground of administrative exigencies as referred to in its judgment reported in AIR 1987 Supreme Court 1153 and (1994) 6 JT (SC) 372. The appeals were accordingly dismissed.

15. The above contentions of the respondent were controverted by Shri Goyal, learned counsel for the appellants; on the ground that the limitation which is required for filing the second appeal in this Court is 90 days as against which the second appeal was presented in this Court by the appellant within 79 days and if additional period of 58 days in not reckoned then the appeal is within time. Shri Goyal was, however, not been able to explain as to how and why the requirements of Order 41, Rule 1, Civil Procedure Code which mandates that every appeal shall be accompanied by a copy of the decree passed by the court of first instance should be dispensed with in this case particularly when the appeal was not accompanied by a copy of the decree of the court of first instance, i.e., Civil Judge, Jaipur City, Jaipur.

16. With regard to the second contention of the learned counsel for the appellant that the appeal was not filed by a competent person, since the learned Govt. Advocate who presented the appeal did not have the express authorisation in writing as on the date of presentation of the appeal, it was contended by Shri Goyal that the sanction ,was obtained by the Law Department on 27th December, 1983; whereas this appeal was filed in this Court on 6-11-1982. The question which arises for consideration of this Court is as to whether the sanction which was obtained by the State from the Law Department subsequent to the filing of this appeal on 27-12-1983 can be retrospectively applied to cure the defect which was in existence as on the date of presentation of this appeal as on 6-11-1982. I am of the opinion that since there was no sanction with the learned counsel for the State when this appeal was presented, a retrospective sanction which was obtained subsequently cannot cure the defect which was in existence as on 6-11-1982, i.e., the date of presentation of this appeal. I am further of the opinion that learned standing counsel for the appellant-State had no authority to act or appear on, behalf of the State and, therefore, the appeal shall be deemed to have been filed by an incompetent person. I am fortified in my opinion from the statutory requirements as envisaged by Order 3, Rule 1, Civil Procedure Code which stipulates that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf is a mandatory requirement of the statute. I am further of the opinion that in absence of express authorisation in writing from the Law Department, learned standing counsel had no authority to act or appear on behalf of the State-appellant. The manner in which the affidavit stands sworn by Shri Madanlal Nathani, C.T.O. (Litigation) Headquarters, Jaipur shows sense of great irresponsibility on the part of the said officer in swearing upon the said affidavit. This fact has been borne out from paras 2 and 4 of the said affidavit.

17. I am of the considered opinion in this regard that the 'State' which is supposed to be the guardian of its citizens and should safeguard their rights and interests should be more vigilant in exercise of its duties as compared to its citizens. In this case the conduct of the State functionaries representing the Sales Tax Department has been such that it deserves reprimand from this Court for the reason that the then C.T.O. (Litigation) Headquarters, Jaipur has been most callous in discharge of his official duties in not pursuing the appeal with his counsel diligently which fact is apparent from his sworn affidavit filed in support of this second appeal wherein he has deposed in paras 4 and 5 as under :-

"4-That the above letter was sent to Shri Section L. Joshi, Advocate. It appears due to some communication gap it did not reach him and could not be produced in time.

5-That the judgment of the first appellate Court A.D.J. No. 2, Jaipur City, Jaipur was filed along with appeal memo and the certified copy of the First Court's judgment was filed on receipt of copy from the Court".

18. This apparently reveals the deliberate lapse on the part of the then C.T.O. in not pursuing the matter diligently for which necessary departmental action may be taken against the delinquent as the authority may deem fit and proper for having caused substantial revenue loss to the State. I am further of the opinion that the term 'communication gap' as (stated by the C.T.O. in his affidavit is a misnomer since the question of communication gap between the department and the counsel would not have arisen if the C.T.O. had been vigilant enough to have got the appeal filed in this Court within time after having completed all the necessary formalities prior to the filing of his appeal; which has not been done. The question of communication gap would arise only in those cases where the departmental representatives are entrusted with particular responsibility by the department and do not discharge the same sincerely and diligently as has happened in this case. My view is based on the famous maxim "where there is will, there is way". Hence the duty coupled with sincerety, intention and ability to perform the same within time is the dire need of the hour and there should be no lapse on the part of the officers entrusted with the responsibility in not performing the same and in case they fail to discharge their duties sincerely they should be held accountable for the lapses on their part.

19. In view of the above discussion I am of the opinion that since the appeal suffers from inordinate delay and laches and the delay of 47 days' has not been explained by the learned counsel for the appellant nor any satisfactory explanation has been furnished by the learned counsel in this regard, the question of merit need not be gone into by this Court and the appeal is not maintainable and deserves to be dismissed by this Court. I am further of the opinion that the appeal was also not presented by a competent or a duly authorised person and the retrospective sanction which was obtained much later to the filing of this appeal, cannot cure the defect which was inherent in this appeal as on the date of its presentation and that cannot be construed to the advantage of the appellant.

20. In the result, this appeal is dismissed with no order as to costs. The judgment and decree of the Courts below are affirmed.
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