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Petitioners' Right To Appeal Upheld Despite Procedural Deficiency - The Judgment Upholds The Petitioners' Right To Appeal, Emphasizing That Substantive Rights Should Not Be Forfeited Due To Procedural Issues, Setting Aside The Impugned Order And Restoring The Appeal For Consideration On Its Merits

  12 October 2023       Share Bookmark

Court :
High Court Of Jammu & Kashmir And Ladakh
Brief :

Citation :
CM (M) 240/2023 CM (5873/2023)

Case title:

Ghulam Din Bhat and another v. Mst. Jana

Date of Order:

20th SEPTEMEBR 2023




PETITIONER - Ghulam Din Bhat and another


SUBJECT: The situation centres on a legal argument involving a "suit for injunction." In this kind of case, one party (the plaintiff) asks the court to issue a ruling prohibiting the defendant from doing something, frequently to safeguard their rights or interests. Although the passage does not go into detail about the particulars of the case, it focuses on the petitioners' appeal against a ruling regarding this injunction lawsuit and addresses procedural issues, particularly the late submission of a certified copy of the order they were appealing. Ultimately, the court overturned the contested order and directed the appellate court to evaluate the appeal's merits.



  1. Article 227: It deals with the supervisory jurisdiction of High Courts over subordinate courts and tribunals.


  1. Order 41: it addresses the form and presentation of appeals in civil cases.
  2. Section 96: It covers appeals from original decrees in civil cases.
  3. Order 43: This order deals with appeals from orders in civil cases.



The petitioners in the current case have requested that the court exercise its supervisory jurisdiction under Article 227 of the Constitution in order to resolve a legal dispute. In an appeal titled "Ghulam Din Bhat and another versus Mst. Jana," they are attempting to reverse a decision made by the court of Additional District Judge (Fast Track) Budgam. The main point of contention concerns the appeal's formalities, specifically the timely delivery of a certified copy of the challenged order. The court overturns the challenged order and instructs the appellate court to reexamine the appeal on the basis of its merits after discussing the nature of the right to appeal and highlighting that it is a substantive right.


ISSUES RAISED: Whether the dismissal of the appeal by the appellate court due to the late submission of a certified copy of the impugned order, when the right to appeal is considered a substantive right, constitutes a valid reason for denying the petitioners their right to appeal?


  1. The petitioner might have argued that since the right to appeal is a substantive right, it should not be denied solely on the basis of procedure.
  2. They argued that the relevant law or rules did not explicitly state a deadline for submitting the certified copy of the contested order.
  3. The petitioner emphasised that a decision on the merits of the case should take precedence because an appeal is viewed as a continuation of the initial lawsuit.
  4. The petitioner argued that the court ought to be forgiving in matters of procedure, particularly when the appeal was filed with the understanding that the certified copy would be provided later.
  5. They emphasised that the court should strive to avoid a failure of justice by rejecting the appeal on the basis of a technicality.
  6. The petitioner argued that dismissing the appeal without a fair hearing violates their fundamental right to have their case heard on its merits.
  7. They emphasised that the right to appeal is a statutory right and cannot be restricted unless specifically permitted by law, which was not the case in this instance.



  1. The respondent may claim that following the rules of procedure, such as timely submission of a certified copy, is necessary to uphold the fairness and effectiveness of the legal system.
  2. They might cite cases in which courts have affirmed the value of following rules of procedure in order to ensure a just and efficient legal system.
  3. The respondent might argue that the petitioner had enough time to submit the certified copy but did not do so on time, indicating negligence on their part.
  4. The respondent might contend that the court must have a certified copy of the contested order in order to evaluate the merits of the appeal, and that failure to do so justifies dismissal.
  5. They might contend that in order to preserve the structure and predictability of the legal system, the appeal must be rejected for procedural irregularities.
  6. The respondent might assert that it is the petitioner's duty to see that all required paperwork is filed legally and that failure to do so should have repercussions.
  7. They might contend that the petitioner's failure to comply with the requirements meant that the right to appeal was not an unqualified entitlement but rather a privilege.



  1. The judgement begins by noting that the petitioners have requested that the court exercise its supervisory authority pursuant to Article 227 of the Constitution.
  2. It states that the appellate court dismissed the petitioners' appeal primarily as a result of the certified copy of the contested order's tardy submission.
  3. The ruling focuses on the fact that the right to appeal is a substantive right and cannot be restricted based only on formalities.
  4. The court cites a definition of an appeal, emphasising that it is essentially a request for a decision made by a lower authority or court to be reconsidered.
  5. The judgement makes it clear that the right to appeal is not a fundamental or inalienable right but rather a legal right that can only be used when permitted by law.
  6. It emphasises the idea that an appeal is a continuation of the initial lawsuit and that the court's goal should be to resolve cases on their merits as a result.
  7. Order 41 of the Civil Procedure Code, which outlines the prerequisites for a valid appeal and specifies that a certified copy of the judgement or order being appealed against is required, is referenced in the judgement.
  8. The court points to the idea that procedural rules shouldn't take precedence over substantive rights and that the right to appeal shouldn't be illusory or nugatory.
  9. The judgement states that the appeal was denied justice in this case because it was denied on procedural grounds.
  10. As a result, the court vacates the contested order and effectively reverses the appellate court's judgement.
  11. The ruling instructs the appellate court to put the appeal back on the docket so that it can be decided on the merits.
  12. It states that until the appeal is decided, the initial interim order issued by the appellate court on September 19, 2022, will be in effect.
  13. In order to give all parties an equal opportunity to present their arguments, the judgement directs the appellate court to summon the respondent before the appeal is heard.


In conclusion, the court's decision in this case shows a dedication to upholding the appeals right's sanctity as a fundamental legal entitlement. It emphasises that this right shouldn't be lost just because of inadequacies in the legal process. The court emphasised that an appeal is a continuation of the initial lawsuit and that it is primarily intended to give parties the opportunity to have their rights and claims evaluated fairly.

The ruling emphasises that while procedural laws are important, they shouldn't take precedence over the core idea of justice. It can be unfair to dismiss an appeal for procedural reasons without considering its substantive merits, which is what the court aimed to avoid in this instance. The contested order was thus overturned, the appeal was reinstated, and the appellate court was instructed to call the respondent in order to thoroughly review the case's merits. This judgement demonstrates the court's dedication to upholding the importance of procedural rules within the bounds of the law while ensuring that justice and fairness are given top priority in the legal process.




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