Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: RCA DJ 14/26
MOHD HASAM Vs. MOHD YAMIN (BIRYANI WALA)
13.05.2026
Present: Ld. counsel for appellant.
Sh. Sumit Rana, Ld. counsel for respondent through VC.
IA no.3/26 (Respondent’s application u/O XLI Rule 3 CPC seeking
rejection of appeal)
1. Copy supplied.
2. Arguments heard. Record perused.
3. Matter is listed for orders on appeal. Respondent wants the appeal to
be rejected on the grounds that (a) appeal is not accompanied by an
opening sheet as prescribed by Rule 3A of Rules & Orders of Punjab
& Haryana High Court; (b) appeal is not accompanied by court fees
of Rs.3,000/- as paid before the trial court; (c) in the appeal, except
for praying for setting aside of impugned judgment, no other relief as
sought in the plaint has been prayed; (d) the
undertaking filed with
the appeal does not speak of the contents of the appeal being true and
correct and only speaks of contents of plaint being true and correct.
4. Each of the grounds taken in the application and argued before this
court are frivolous at best. It appears that only to delay the
adjudication of the appeal, respondent is coming up with
misconceived applications. A similar attempt was made on last date
when, without any ground, an application was moved by respondent
u/O XLI Rule 27 CPC. The same was dismissed on 05.05.2026 and
today another application has been moved.
-- 1 of 3 --
5. At the outset, I may note that orders in the present appeal have
already been reserved and during arguments on the appeal, none of
the contentions raised in the present application were ever raised.
6. Under Order XLI Rule 3(1) CPC, a memorandum of appeal, if not
drawn up in the manner prescribed in Rule 1 can be rejected or
returned to the appellant for amendment. The argument that appellant
has not filed an opening sheet with this appeal as claimed to have
been laid in Rule 3A of Rules and Orders of Punjab & Haryana High
Court, is not the form of memorandum of appeal as mentioned in
Rule 1 of Order XLI CPC. This means that the opening sheet being
referred to by the applicant/respondent is not provided to be forming
part of memorandum of appeal and therefore, its non-filing shall not
attract the rejection or return of appeal under Order XLI Rule 3 CPC.
7. Again, the contention that appellant has not paid proper court fees is
de hors the record as the court fees of Rs.3,000/- has been duly paid
on the present appeal.
8. Again, the argument with respect to appeal herein not praying for the
reliefs sought in the plaint is incorrect. First appeal is always
considered as a continuation of the suit. Appellant/plaintiff has
challenged the impugned judgment and decree and has prayed for its
setting aside. If the said judgment and decree is set aside, an
Appellate Court has all the powers to grant any relief which may be
borne out from the record. Even otherwise, this cannot be a ground
to reject the appeal u/O XLI Rule 3 CPC.
9. Again, the contention that the
undertaking filed with the appeal is
incorrect or defective cannot mean that the appeal is liable to be
-- 2 of 3 --
rejected u/O XLI Rule 3 CPC. The said provision read with Order
XLI Rule 1 CPC does not provide for any
undertaking to be filed
with the appeal - on non-filing of which, appeal is liable to be
rejected.
10.The application is nothing but a delaying tactic and is thus, dismissed
with cost of Rs.15,000/- to be paid by respondent to appellant.
11.To come up for orders at 4:00 PM.
AASHISH GUPTA
DJ-01/NE/KKD/DELHI
13.05.2026
At 4:15 PM
Present : None.
Judgment is under dictation.
Put up on 14.05.2026.
AASHISH GUPTA
DJ-01/NE/KKD/DELHI
13.05.2026
-- 3 of 3 --