DIVAS BASHYAL*
1. Introduction
Judgements can simply be understood as a final decision by a court backed by legal reasoning. Judgements are supposed to serve justice and are therefore required to be good in law. However, there can be instances where a court can be in error in their judgements and thus, a right to appeal has been provided to the parties in dispute who might be unsatisfied with the judgement. Right to appeal helps a party seek a “greater judgement” from a higher court, which can either affirm the decisions by the lower court, and/or make required changes and observations on it.[1] The higher court can also reverse the judgement provided by the lower court. Judgements and “greater judgements” work with a common intention i.e. to serve justice. However, to seek such “greater judgements” right to appeal must be used effectively.
The article addresses historical developments in the jurisprudence pertaining to the right to appeal, the legal confusions surrounding it and how such confusions have been corrected. The article also intends to make aware the legal practitioners, judges, judgement-debtors and judgement-creditors equally, as to the legal intricacies involving appeals, how to effectively use the right to appeal and, how to enjoy the fruits of a judgement by preventing any legal complication from coming in the way. The article puts reference to the latest judgement by the Supreme Court in the case of Gandib Kafle v High Court of Patan and Others, where these legal complexities, which have existed over a long span of time, have been clarified. The case has thoroughly dealt with the concepts of judgements and appeals. Further, the case has dealt with concepts like power of attorney and agents (waris), and how they can impact a party’s right to appeal.
2. Of Judgements
A judgement is a final decision (written and signed) provided by a judicial body with regards to the disputes between the parties, after applying its judicial mind to the evidences produced before the court by the parties in dispute. Judgements serve justice to the parties in dispute, help in interpretation of legal provisions, and also contribute to develop important jurisprudence and practice. A judgement cannot be delivered without application of mind to all the evidences and documents presented before the court.[2] A judgement should be based on evaluation of evidences[3] and hearing of the parties. Along with the evaluation of evidences, a judge is supposed to analyse and explain the legal basis of their judgements.[4] Further, a judgement must not be partial in nature and should address all the issues raised before the court.[5] It must also address the arguments raised by both the parties, as a judgement cannot be provided simply by addressing the arguments raised by only one of the parties. A judgement will lack the elements of “complete” and “just” judgement if any bench fails to provide such elements in their judgements. However, it should also be noted that a judgement can exist even before entering into the substantial issues of a case. For instance, if a case ends at the question of jurisdiction itself, such judgements are valid judgements even if there is no application of mind to the substantial disputes or the evidences.
A judgement can simply be said to be a series of reasons that lead to a conclusion. Reasons are in turn based on application of mind to the evidences produced before the court. Reasoning forms an important feature of a judgement. This can also be understood from the fact that if there is a conflict between the “reason-section” (raya khanda) and the “decision-section” (tapasil khanda) of a judgement, the reason-section of the judgement shall prevail.[6] The “decision-section” of a judgement can simply be understood as the section where the final conclusion of the judgement is summarized. The decision-section also directs the parties with regards to their post-judgement actions and also directs the process for enforcement of the judgement. The decision-section is therefore a procedural part of the judgement.[7] Parties and enforcing bodies are supposed to act in compliance with the judgement,[8] and the decision-section directs them to do so. This paragraph highlights the substantial importance of reasoning in a judgement and the procedural importance of the decision-section in a judgement.
2.1 Indian Case Laws on Judgements
A judgement must have clarity as to the conclusion reached. For instance, as decided in the case of Pramina Devi v State of Jharkhand, there should be a clarity as to the exact relief that has been provided. In the case of Surendra Singh and Others v State of UP, it was decided that, “small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be bluffed nor left to inference and conjecture nor can it be vague.” It was further decided that “ […] a judgment […] is the final decision of the court intimated to the parties and to the world at large by formal “pronouncement” or “delivery” in open court. It is a judicial act which must be performed in a judicial way.” The judgement further read,“it is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement[…]. It must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment [i.e. application of mind] which the court performs after the hearing. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the “judgment”.”
2.2 Indian Case Laws on Importance of Reasoning in a Judgement
A decision by a court does not merely arrive at conclusions, but also invites reasoning while arriving at conclusions. Section 354 (1) of the Code of Criminal Procedure, 1973 (India) enlists what a judgement must contain. More specifically, Section 354 (1) (b) provides that a judgement “shall contain the point or points for determination, the decision thereon and the reasons for the decision”. The Supreme Court of India in the case of Ajay Singh and Others v State of Chhattisgarh and Another, decided that “A judgment, as has been always understood, is the expression of an opinion after due consideration of the facts which deserve to be determined.” While highlighting the importance of reasoning in a judgement, the court referred to Justice Chandrachud, in the case of State of Punjab and Others v Jagdev Singh Talwandi, where he had decided that, “it is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement […] If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.” Justice Chandrachud, noted that the practice of “unreasoned judgements” is “is not desirable and does not achieve any useful purpose”. This article will highlight the practical implication of reasoning (and any lack of it) upon the right to appeal (in Nepalese context).
When it comes to the importance of reasoning in a judgement, one can refer to the case of Prem Kaur v State of Punjab and Others, as decided by the Supreme Court of India. In this case, the trial court acquitted a father and a son after deciding that it would be unimaginable to think that a father and a son would rape a woman together. The High Court of Punjab and Haryana, affirmed such decision by the trial court. The Supreme Court of India, criticizing the trial court and the high court, decided that the allegations should be analysed based on the evidences on record. The Supreme Court in this case, found that a sound reasoning had not been made. The court made reference to Section 354 of the Code of Criminal Procedure, 1973 and clarified that pronouncing a final decision without sound reasoning would be invalid in law.
The case of Yaqub Abdul Razak Menon v. State of Maharashtra, as decided by the Supreme Court of India also highlights the importance of reasoning in a judgement. The court decided as follows:
- Reasons which cannot be supported by evidence cannot be considered as reasons.
- To constitute legal apprehension of evidence, the judgement should be such that it shows that the court has applied its mind to the evidences.
- Reasons and its factual accuracy shows that the court has applied its mind.
- If the statement of reasons is hollow pretention of baseless claim of application of mind, a “judgement” is robbed of one of its essential elements and forfeits its claim to be termed as a “judgement”.
- Every portion of the judgement must show application of mind to the evidences on record.
- A true judgement alone allows a higher court to analyse the correctness of the decision and allows a party to feel that court has provided an even-handed judgement.
(This section has highlighted the important elements of judgements and how reasoning forms a quintessential part of it.)
3. Of Appeals
It is well accepted that judgements are supposed to include sound reasoning and analysis, and are supposed to serve justice. Nevertheless, sometimes, courts can be in error in delivering a judgement, in their analysis of a laws or evidences, in the procedural steps, etc. It is for such reason that a safeguard has been provided in the form of a right to appeal. The right to appeal is an important right for a judgement debtor. For instance, during the initial stages of the COVID-19 pandemic, the Supreme Court had, based on Article 20 (9) (Right to Fair Trial), Article 35 (Right to Health), Article 46 (Right to Constitutional Remedies under Article 133 or 144), Article 126 (Courts to Exercise Powers Relating to Justice), Article 128 (3) (Power of the Supreme Court to Supervise and give Necessary Directives), Article 133 (2) (Extraordinary Powers of the Supreme Court), Article 133 (3) (Power to Issue Writs) of the Constitution of Nepal, decided that during the period of the lockdown, the period of limitation to bring suits and appeals should be extended as seen to be appropriate, highlighting the importance of such a right.
In a judgement, a court is to mention the time period for appeal (myad dinu) in accordance with the respective applicable law.[9] Such a duty on the court cannot be said to be optional. However, even if a court fails to mention and notify a time period for appeal, the right to appeal still exists, as time period for appeal has been provided by the law itself.[10] Interestingly, there have been some instances where a lower court had tried to bar a party from appealing to a higher court. Such curtailment of a party’s right is not allowed, and goes against the principle of natural justice. A court can only direct a party to appeal and cannot bar them from appeal.
When an application for appeal is received, judicial mind should be applied to such applications.[11] When an application for appeal is denied the reasons for such denial (of an important right) must also be disclosed. Right to appeal cannot be disturbed because of the court’s mistakes. Such application cannot be rejected without reasonable grounds. This highlights that the courts have recognised the importance of the right to appeal. However, it should be noted that, the right is provided and managed by the law, and is a legal right rather than a fundamental right. While the importance of the right to appeal has been recognised in such a manner, Nepalese courts have historically failed to establish a reasonable jurisprudence with regards to appeal. (This has been discussed throughout the article.)
A court cannot overturn its own judgement even in case of a serious error[12] (except in cases of revision) and it is for this reason that appeal is important to do complete and correct justice. A judgement that is substantially erroneous in law, and goes against the basic principles of justice, accepted procedure, principles and customs, are liable to be quashed. However, a court cannot overturn its own judgement.[13] It can merely correct any clerical error in the judgement.[14] Judgements are supposed to serve justice. It is for this reason that a court can correct the clerical errors in its own judgement, and such corrections form an important part of the judgement. However, as already mentioned, corrections can only be made of clerical errors and not of substantial errors.[15] Only a higher court can apply its mind to a substantially erroneous judgement and correct it, for which an appeal needs to be filed. Therefore, “greater judgements” hold large importance. Appeal is a special, effective and frequently-used right undertaken to do right a wrong.[16] The provision for appeal has been provided so that a party can approach a higher court to seek its opinion as to the correctness of any judgement provided by a lower court.
Right to appeal, like any other legal right, must not be slept over negligently. Even if a judgement is not good in law, a person who sleeps over such a right cannot be helped by the courts. It is so because once a person fails to appeal the judgement to a higher court, it is assumed that the person is satisfied with the judgement, and has accepted the judgement by the lower court.[17] Further, if an agent (waris) of the party fails to file an appeal within the period of limitation, the consequences of such action falls on the shoulders of the principal themselves. However, in the case of Gandib Kafle (as has been discussed below), it has been clarified that the principal can however sue the agent for the loss caused by their failure to appeal. Therefore, upon failure to appeal, even the judgements that are bad in law, can be executed.[18] It is for this reason that a judgement debtor should be aware of their right to appeal and its importance.
However, where there are multiple judgement debtors and one of the judgement debtors appeals to a higher court, which reverses the decision of the lower court, such decision gets reversed in favour of other judgement debtors as well (depending on the circumstances of the case, taking into consideration the types of legal wrongs of the individual judgement debtors and its similarity with the wrong committed by the appealing-judgement-debtor), despite such judgement debtor not exercising their right to appeal.
(This section has highlighted the importance of right to appeal. It has highlighted how a decision that is bad in law can be executed if a party fails to exercise their right to appeal, within the period of limitation.)
4. Of Limitation Period and Finality of Judgements
The doctrine of limitation forms an important concept to realise effective and efficient justice.[19] The law has provided certain time period within which parties should file their suits and appeals. This article shall only deal with the limitation period with regards to appeals. Once an appeal is filed, there remains a possibility that a judgement by the lower court is overturned or changed. Therefore, if appeal is allowed, discarding any period of limitation, there would arise a risk where any judgement can be overturned at anytime. If any judgement can be overturned at anytime, there would be an uncertainty in justice, and it is for such reason that the period of limitation has been introduced. Uncertainty in judgements would create legal and social complexities and complexities in enforcement and effective realisation of the judgement, which can hamper the right of a judgement creditor. Finality of judgement is required to end such uncertainty, and period of limitation complies with such a requirement.[20] If the court is allowed to apply its mind to the evidences even after the period of limitation has passed, the provision establishing such period of limitation would be obsolete.[21]
When a judgement has not been appealed (within the limitation period) and has also not been quashed, such a judgement is considered as final and any subsequent decision to nullify the judgement is also prohibited, as under the doctrine of finality of judgement.[22] Raising the same question before the courts time and again would create unfavourable situations, which is prevented by the principle of finality of judgement.[23] Interestingly, one judgement notes that when a person approaches a court with an application for appeal, after the limitation period has passed, the person is said to have approached the court with unclean hands.[24]
According to Section 18 of the Administration of Justice Act, 2073 B.S., the decision/judgment of the courts are considered to be final unless there is a provision for appeal available under the statutory law and such appeal is made. This line of thought can also be seen in the decision of Supreme Court in the case of Kismat Bahadur Shrestha v Ukhada Tribunal, Bhairahawa while dealing withthe principle of finality of judgment. Approaching the court late, but within the prescribed time period, is not a ground to deny an application for appeal, as it would be within the limitation period. However, after the limitation period has passed, and an appeal is not made within such period, the judgement becomes final and the person is said to have slept over their right to appeal. A final judgement on a subject matter by a court is so concrete in law that it cannot be affected by any subsequent decisions made by any branch of the government, on the same subject matter.[25] Here, it would be pertinent to note that even subsequent amendments that extend the period of limitation would not help the judgement debtor if the period of limitation (before the amendment) has been slept over.[26] Such practices are prevalent to prevent any weakness in the principle of finality of judgement.
(This section has highlighted the importance of period of limitation to defeat any uncertainty in judgements and their enforcement. This section argues why the right to appeal should be subject to some limitations.)
5. When does the Limitation Period get Triggered?
The discussion above highlights how appeal and limitation period on it helps to realise justice. However, there has arisen a question in the Nepalese legal sector, which the law and the judiciary have frequently failed to answer correctly — “when does the limitation period get triggered?”
It was once decided that it is only from the date of final decision (antim nirnaya) that the period of limitation begins. However, such jurisprudence, which was largely in practice before, is erroneous. The conclusion that the limitation period begins from the date of the final decision might have arrived from the language used in the older provisions on appeal. (The old provision on appeal as under the Muluki Ain, 2020 has been discussed below. See, 6.4.1.4 of the article). The case of Gandib Kafle has clarified what the correct practice on appeal and limitation period should be.
It should be noted that the date of triggering of the limitation period should not be determined negligently as it would have an effect on an important right, that is the right to appeal. Therefore, the date of triggering of the limitation period should be determined taking into account the procedural stages (in the lower court) and their dates (so as to precisely calculate the limitation period), and taking into account the right of the person to appeal. Taking into account the right of the person to appeal, it would be reasonable to conclude that the limitation period for appeal should begin only after the judgement debtor has obtained knowledge of the judgement and its elements in such a manner that enables them to make an appeal effectively. (This matter has been further discussed below. See, Part 6.4.1. of the article.)
6. The case of Gandib Kafle and its Analysis
This section shall highlight the facts, the issues and the decisions reached by the Supreme Court in the case of Gandib Kafle. Then, the decisions shall be analysed simultaneously with the jurisprudence that has developed in Nepal pertaining to the issues which were before the Supreme Court in the said case.
6.1 Facts of the Case
The case concerned an issue of dishonour of cheque by the applicant. The applicant had filed a writ petition of habeas corpus under Article 46 and 133 (2) of the Constitution of Nepal, 2072. In this case, an application for appeal by the judgement debtor (Gandib Kafle) had been rejected by the joint-registrar of the Supreme Court on the ground that the limitation period had passed. The writ was filed against the act of execution of the judgement by the lower court while the application for appeal was still pending. In this course, the Supreme Court has clarified the issues surrounding the right to appeal. Here, it would be important to understand the timeline of the case, which has been mentioned below.
2076/06/05: Final decisions were pronounced by the Patan High Court. No final copy of the judgement was made or submitted to the accused or his lawyer on this date itself. The High Court decided a punishment of 10-year imprisonment and compensation of Rs. 31,71,800.
2076/07/05: The Patan High Court verified the full and final copy of the judgement.
2077/07/18: The lawyer of the applicant had, before the Patan High Court, signed and verified that they had taken a copy of the judgement.
2077/08/03: The applicant filed an application for appeal. The joint-registrar of the Supreme Court of Nepal rejected the application for appeal as filed by the applicant based on Section 128 of the National Civil Procedural Code, 2074 B.S. stating that the limitation period of 1 year as laid down in Section 134 (4) had passed. The joint-registrar decided that the limitation period was triggered on 2076/07/05 itself, as the lawyer was present during the proceedings in the court and on the date of verification of the judgement as well.
2077/08/14: The applicant filed an application before the Supreme Court of Nepal, as under Rule 10 of the Supreme Court Regulations, 2074 B.S., against the decision of rejection of the application for appeal given by the joint-registrar of the Supreme Court.
2078/12/08: The applicant, who had (allegedly) absconded imprisonment, was found and arrested, and presented before the Ramechhap District Court. Here, execution of the judgement as provided by the Patan High Court was done.
2078/12/09: The district court sent the applicant for imprisonment for 10 years, as was directed by the High Court of Patan.
6.2 Issues before the Court
- Is the decision pronounced on the date of final decision in a proceeding, a judgement?
- If an agent to the principal (party to the case) has signed the opinion-book (raya kitab) verifying that they have heard the final decisions, does it amount to knowledge of the judgement on the part of the principal such that it triggers the limitation period?
- When does the limitation period for appeal get triggered as under Section 134 of the National Criminal Procedural Code (CrPC)?
- Was the imprisonment of the applicant against the process established in law?
6.3 Clarification to the Appellate Mechanism in Gandib Kafle
Here, it would be pertinent to mention that, generally, appeal is allowed only once.[27] Two stages of appeal can only be allowed where, during the first appeal, there has been a substantial change from the original judgement[28], where the punishment (as provided by the High Court) is for imprisonment for more than 10 years,[29] or where the High Court has reversed, partially or fully, the judgements by the lower court which had provided imprisonment for more than 3 years, compensation worth more than Rs. 5 lakhs, or where the dispute was worth more than Rs. 25 Lakhs.[30] However, in Gandib Kafle, the first appeal itself was made to the Supreme Court. This is because in cases involving dishonour of cheque, the first jurisdiction lies with the High Court, and thus, the first appeal reached to the Supreme Court.[31]
6.4 Analysis of the Gandib Kafle case
Throughout this part, an analysis has been done of the current laws and the old Muluki Ain, 2020 B.S. and case laws based on the old Muluki Ain and the new procedural laws. (Therefore, any mix-up of the old and the new jurisprudence should be avoided by the reader.)
6.4.1 “Decisions” and “Judgements”
Section 134, CrPC deals with appeals and limitation period on it. The provision triggers the limitation period from the date of receipt of copy of the judgement or from one year from the date of the judgement itself, depending on the circumstances. It is for this reason that it is important to clear the confusion between a “judgement” (faisala) and a “final decision” (antim nirnaya). So as to differentiate between these terms, reference can be made to Section 131 of the CrPC, which deals with judgements and final decisions. These provisions have been summarised below.
6.4.1.1 Section 134, National Criminal Procedural Code, 2074 (CrPC)
Section 134 deals with appeals in criminal cases. Section 134 (1) provides that the time period for appeal starts from the day that the party becomes aware of the judgement. In case the Nepalese Government is involved, the period is for 70 days and in case it is not involved, the period for appeal is for 30 days, starting from the date that the party becomes aware of the judgement. A party can gain awareness of a judgement, once a copy of the judgement has been received by them. However, there are other methods through which a party can gain, or can be assumed to have gained knowledge of the judgement.
Section 134 (3) provides that if a lawyer or a legal representative (agent) (waris) is present before the court during the proceedings and the judgement is provided on the same day, it will be assumed that the party has acquired knowledge of the judgement on the same day. However, it should also be proved that the lawyer has submitted the copy of the judgement to the party so as to trigger the limitation period via this provision. Thus, in such cases, the limitation period gets triggered on the same date as the date of final decision, as the party has acquired the knowledge of the judgement.
Section 134 (4) provides that once a judgement has been written, it is automatically assumed that the party is aware of the judgement after one year from the date of the judgement (i.e. date of writing of the judgement). And thus, the limitation period gets triggered after one year automatically, even if the party has not received a copy of the judgement. This means that one year from the date of the judgement, it is presumed that the party has gained knowledge of the judgement. From that date, an appeal has to be filed within 30 or 70 days, according to the nature of the case, as discussed in Section 134 (1).
6.4.1.2 Section 131, National Criminal Procedural Code, 2074 (CrPC)
Section 131 (1) provides that from the date of completion of taking of evidences, the court should provide a judgement within 30 days from such completion. As per Section 131 (2), if a judgement cannot be provided within such time period, the court should make aware the appellate court of the reasons for such delay. (This provision also highlights the fact that the date of the judgement forms an important event from which the limitation period can be calculated. It is for this reason that the appellate court should be made aware of the delay.)
Section 131 (4) provides that when a complete written judgement has not been prepared by a judge, the judge can only pronounce the final decisions reached by them. This highlights the difference between a judgement and a final decision. A judgement is written and includes complete reasoning that helped the court to come to a conclusion. However, a final decision is simply a summary of the conclusions reached by the court.
Section 134 provides that the limitation period gets triggered once the person gains knowledge about the judgement. Therefore, putting reference to Section 131, the Supreme Court in the case of Gandib Kafle decided that, there is a difference between a judgement and a final decision, and that the limitation period gets triggered once the person gains knowledge of the judgement. Knowledge of the final decision is not enough to trigger the limitation period. Only after the party receives a copy of the judgement, can a party seek legal advice and effectively make an appeal, as the judgement contains reasoning and conclusions in the case. Therefore, the limitation period would trigger from the date of the judgement. Triggering the limitation period on the date of final decision would also violate the party’s right to appeal, which a court cannot do. A party cannot effectively make an appeal just by having knowledge of the decision, as a decision contains a mere summary of the conclusions in the case.
Section 131 (5) provides that where a judgement has not been prepared and only the final decision has been pronounced by the judge, the judge is duty bound to record a summary of the decision in the opinion book (raya kitab) and verify such record in the opinion book. The parties (or their representatives) in the case, also sign and verify that they have heard the pronouncement of the decision. Therefore, a party’s signing of the opinion book, verifying that the final decision has been heard, does not mean that the party is aware of the judgement itself, since the judgement has not yet come into existence. Such observation was made in the case of Gandib Kafle as well.
6.4.1.3 Decision by the Supreme Court in Gandib Kafle
The Supreme Court in the case of Gandib Kafle analysed Sections 131 and 134, in the manner depicted above, and differentiated between judgements and final decisions. It was decided that the limitation period does not get triggered from the date of the final decision but gets triggered from the date of the judgement. The court noted that it is important to determine if merely a final decision has been pronounced or if a judgement has been made on a specific date. Final decisions cannot take place of a judgement and a mere summary cannot trigger the limitation period, as it cannot effectively establish a basis for a party to seek appeal or legal advice. Merely a party’s presence (on the date of pronouncement of the final decisions) and the fact that the lawyer has presented their argument on behalf of the party, is not enough to trigger the limitation period. Further, merely signing the opinion book by the party or their agent, accepting that the final decisions have been heard, does not trigger the limitation period. The court clarified that for the limitation period to get triggered from the date of the final decision itself, it is important that a copy of the judgement be provided to the party on the same day itself. The applicant cited the case of Rubina Singh Dangol v The Government of Nepal and Others, where it was laid down that if a copy of the judgement has not been provided to a party (on the same date as the date of the final decision), it cannot be said that the party is known about the judgement from the date of pronouncement of the final decisions. The Supreme Court agreed with the applicant’s argument.
However, the Supreme Court further observed that even if a copy of a judgement is provided to the party or their representatives, on the same day of the final decision, it cannot be said that the limitation period gets triggered. So as to trigger the limitation period as provided in 134 (3), it also becomes important for a court to mention that the party or their representatives have been provided with the copy of the judgement and have been notified about the limitation period (myad dinu). However, as already mentioned above (see, Part 3 of this article), a court’s failure to notify the party of the limitation period, does not impact the appeal mechanism as it is already an established mechanism in law. The Supreme Court in Gandib Kafle has missed this important clarification. Further, while the court has stated that a judgement (which is delivered on the same date as of the final decision) should state that a copy has been provided to the parties, such recommendation is not seen in practice.
The court has acknowledged that Section 131 (5) and Section 134 (3) can be mistakenly read to mean that the presence of a lawyer, the party or the agent, during the final decision triggers the limitation period. However, these provisions cannot be read in such a manner that it creates a conflict with other provisions. It is a well established jurisprudence that provisions should be read and interpreted harmoniously and not in a conflicting manner. Therefore, Sections 131 (4) and (5) cannot be read to be in conflict with Sections 134 (1), (3) and (4). The Supreme Court decided that provisions cannot always be read literally and should be read in such a manner that takes into account the party’s interest in justice and practical issues of law. It observed that the procedures in a legal suit forms a chain which impacts the other stages of the suit. Therefore, it becomes important to prevent any interpretation that breaks or weakens any part of the chain, as it can defeat the entire justice system.
(The difference between decisions and judgements should be kept in mind throughout the reading of this article.)
6.4.1.4 Additional Analysis
No. 193 and No. 197 of Part-2, Chapter-1 titled “Adalatiya Bandobasta”(literally translated into “Court Management”) of the former Muluki Ain, 2020 dealt with appeals. As under these provisions, the limitation period got triggered on the following dates, whichever was earlier[32]:
- When the party signs in the opinion book verifying that the final decision has been heard.
- When a notification is given regarding the limitation period for appeal (myad dinu).
- When the party receives a copy of the judgement.
- When the party pays the compensation amount (to the state).
There were multiple dates from which the limitation period could get triggered. Late Justice Bharatraj Upreti had suggested that it is important to mention the correct date of oral delivery of final decisions and the date of signing of the judgement.[33] Such dates formed an important element to determine if the party has approached the court within the prescribed limitation period. However, the date of triggering of the limitation period under the Muluki Ain, 2020 was not based on sound reasons.
After studying the decision in Gandib Kafle, it should be concluded that such practice (of determining the limitation periods based on various dates (whichever was earlier)) as under the old Muluki Ain was erroneous and harmed an individual’s right to appeal. The limitation period for appeal should not be triggered from any date, and should be triggered from such a date when a party gains knowledge of the judgement in such a manner that enables them to effectively make an appeal.
As under the old Muluki Ain, 2020 B.S., in case a party (or their agent) has signed in the opinion-book of the court, verifying that the decision has been heard, the limitation period for appeal got triggered from that date of signing.[34] However, the Supreme Court in a decision, had calculated the limitation period from the date of copying of the judgement. However, the judgement was not based on the Muluki Ain, 2020 B.S., but was based on Rule 26 of the District Court Regulations, 2034 B.S., which triggered the limitation period from the date of taking of the copy of the judgement. In the case of Ram Chandra Thapaliya v Home Ministry (His Majesty’s Government) and Others, the court decided that the limitation period got triggered from the date of taking of copy of the judgement. However, in this case, the limitation period got triggered from the date of taking of the copy of the judgement as the applicant was not provided with a notification of the decision of imprisonment. If such notice of imprisonment had been provided, the time period would have started from such date of serving notification of imprisonment. In this case, the court had dealt with Police Regulation, 2033, which provided that the limitation period would trigger from the date of notice of imprisonment. These judgements did not deal with the appeal provisions under the Muluki Ain, 2020 B.S.
The Supreme Court had also observed that the question as to whether there has been a judgement or an order by the lower court is an important question while determining the right to appeal. The Supreme Court at this instance correctly decided that an appeal cannot be made from an order by the lower court and that since a judgement was provided by the lower court (in that case), an appeal can be made. However, this judgement did not state that the limitation period gets triggered from the date of gaining of knowledge of the judgement. Further, the court was not required to differentiate between a judgement and a decision and was only required to differentiate between an order and a judgement. Additionally, the judgement was not based on the Muluki Ain, 2020 B.S. Therefore, the erroneous jurisprudence provided in No. 193 (and other provisions of appeal under various acts) were not corrected by the judiciary.
In one of the cases, it was decided that if a judgement debtor has paid their compensation (to the state), the period of limitation commences from that time period itself (even if a copy of the judgement has not been received) as the judgement debtor could be certainly said to be aware of the judgement once they had complied with it.[35] However, after understanding the reasoning in Gandib Kafle, which highlights the importance of taking of a copy of the judgement, such jurisprudence of triggering the limitation period even before the taking of a copy of the judgement can be said to be flawed. It should be noted that receipt of a copy of the judgement is important to effectively file an appeal, and therefore, payment of fine (based on pronouncement of final decisions) does not signify that the party is aware of the judgement. Neither does it signify that the party is satisfied with the judgement or that they have no interest in appeal. Further, it should be noted that so as to make an appeal, the compensation (towards the state) as decided by the lower court should be paid first.[36] The term “compensation” as used in this paragraph means “compensation towards the state” and not “compensation towards the opponent party”. If compensation is paid towards the opponent party (in civil cases), it is assumed that the party (judgement debtor) is satisfied with the judgement and has given up their right to appeal.
While the practice by the Supreme Court (when it came to appeal) was erroneous in law, the Supreme Court had however, correctly observed that whether the judgement debtor is aware of the judgement or not, depends on the facts and circumstances surrounding the case, and is not determined according to the convenience of the party.[37] A period of limitation is specified in the law and should not be interpreted to favour one party, as it can hamper the right of the other party. Such jurisprudence is correct and is still a sound law.
In a judgement, it was observed by the court that hearing the pronouncement of a final decision, or receipt of notice for appeal, amounts to a complete knowledge of the case on the part of the party, just like in the case of receipt of a full judgement (purna paath) by that party, thus triggering the limitation period from the date of pronouncement of the final decision. This judgement is erroneous in law. (However, the court had used the term “hearing of the judgement” instead of the term “hearing of the final decisions”.) Here, it would be pertinent to note that in many judgements we can find that the courts have erroneously used the term “decision” and “judgement” interchangeably.
As under the old Muluki Ain 2020 B.S., in case of absence of a party during the pronouncement of a final decision, the period of limitation for appeal began from the time when the person is delivered a notice (myad dinu) regarding the time period and place of appeal.[38] The same practice can be observed in today’s practice as well. The court can send a notice notifying the party about the limitation period and this triggers the limitation period. Such a practice is a sound practice in law. It is so because, once a notice regarding an appeal has been given, the party themselves should get access to the full text of the judgement and enable themselves to make an effective appeal. Notification for appeal is sent only after the judgement has come into existence, as the courts will have an obligation to provide the person with a copy of the judgement, once they appear to the court to receive a copy of the judgement, after receiving a notification for appeal. However, as already dealt in Part 3 of this article, a failure of a court to notify about the appeal (myad dinu) does not impact the limitation period as provided by the law.
6.4.1.5. More on “Judgements” and “Decisions”: Reference to Indian Case Laws
The Supreme Court of India, in Ajay Singh and Others v State of Chhattisgarh and Another decided that, “without pronouncement of a judgment in the open court, signed and dated, it is difficult to treat it as a judgment […]. […] If the judgment is not complete and signed, it cannot be a judgment in terms of Section 353 CrPC. It is unimaginable that a judgment is pronounced without there being a judgment. It is gross illegality.”
Section 353 of the Code of Criminal Procedure, 1973 (India) discusses the process of pronouncement of a judgement. The provision provides that a judgement can be pronounced in three ways.
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.
The case of Jitender Alias Kalle v State (Delhi High Court) has clarified the language of Section 353. It was decided that “reading out” as provided in clauses (a) and (b) can only be done of a judgment that is already written. However, “delivery of a judgement” relates to a verbal delivery and does not mean announcement of a written judgement, else, Section 353 (2) would be redundant. As under Section 353 (2), when a judgement is “delivered”, the presiding officer (judge) is supposed to record the delivery in short hand and sign the transcript on every page. However, such short-hand cannot trigger the limitation period, as Section 12 (2) of the Limitation Act, 1963 (India) provides that the limitation period for appeal only begins once the party has received a copy of the judgement or orders.
In the Nepalese practice as well, a verbal delivery of a final decision and recording of its summary in short-hand by the presiding judge, can be observed. While in Indian practice, it is said to be a “delivery of a judgement”, the judgement in Gandib Kafle has used the term “summary of the decision” instead of terming it as a “judgement”. However, it should be noted that in some cases of urgency such summary can be executed (as if it is a judgment), as the decision reached by the court has already been provided in the summary.
In the case of Surendra Singh and Others v State of UP, as decided by the Supreme Court of India, a judge who had heard the case had dictated and signed the dictation. However, the judgement was not pronounced by him as he passed away (on 24th December, 1952) before the pronouncement of the judgement (on 5th January, 1953). The other judge of the division bench (at the High Court) had signed and pronounced the judgement on 5th January, 1953. The question before the Supreme Court was whether a valid judgement has been pronounced. Here, the Supreme Court decided that between the dictation and pronouncement of the judgement any judge has the right to change their mind. The Supreme Court decided that “There is a sort of locus paniteniea, and indeed last minute alterations sometimes do occur. Therefore, however, much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who “delivers” the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind.” Therefore, judgement is a final draft of the final decision reached by a court (signed and dated), without leaving any scope for the judge to change their mind. If there is scope for a judge to change their mind, then there has only been made a decision and not a judgement.
In Nepalese context, it is true that a judgement is the final-most draft of the decision reached by the court. However, a Nepalese judge, unlike as observed in Surendra Singh, does not have a right to change their mind till the very last moment. A judge cannot change their mind after recording a summary of the judgement in the opinion book. An opinion book, maintained by a court, is the source of a judgement. An opinion book is a book where summary of a judgement is written after the judge hears the parties in dispute. Full text of the judgement is prepared by taking the opinion book into reference. Once an opinion of a judge has been recorded in the opinion book, the full text of the judgement cannot go against such record in the opinion book.[39]
The Indian case laws brings more clarity as to the difference between a judgement and a decision. However, it should be noted, as discussed in this part of the article itself, that there remains some difference in the Indian and the Nepalese practice.
6.4.2 Caution
Now we know that the limitation period for appeal starts from the date of knowledge of the judgement, which can take place either by taking of a copy of the judgement or such knowledge is deemed on the part of the judgement debtor automatically after 1 year of the judgement in criminal cases, and 6 months in case of civil cases.[40]
However, the court should remain cautious to the practice of judgement debtors who can argue that they received a copy of the judgement (and knowledge as to the judgement thereof) only after the period of limitation had passed or after the actual knowing of the judgement, so as to extend the limitation period for appeal.[41] It cannot be said that the limitation period gets triggered only if the party receives a copy of the judgement. If such a rule was a strict requirement to trigger the limitation period, a party can misuse such interpretation and internationally refrain from taking a copy of the judgement, thus preventing the limitation period from getting triggered.[42] Such practice can impact the execution of a judgement (as appeal prevents execution of a judgement given by the lower court), and can invite uncertainty as well (as a decision can be reversed at anytime). (See, Part 4 of the article.)
The Supreme Court in Gadib Kafle was also cautious of such misuse. It is for such reason that Section 134 (4) has been included, which provides that after 1 year from the date of the judgement, it is automatically assumed that the person is aware of the judgement (even if a copy of judgement has not been received by the party) and the limitation period as provided in 134 (1) starts from such date (i.e. the date after 1 year of the judgement).
Judgement debtors themselves should be aware about their period of limitation to bring suits and appeals.[43] Once a person has filed a suit, they themselves should be curious enough to receive the copy of the judgement and therefore, the period of 1 year (after which knowledge of the judgement is presumed) as has been provided in Section 134 (4), is reasonable in law. Further, judgements are public documents which a party can access easily. Therefore, so as to prevent any misuse, provision like Section 134 (4) is important, which automatically assumes knowledge on the part of the judgement debtor after 1 year. (With regards to civil cases, see Part 6.4.6 of the article).
In the case of Gandib Kafle, the joint-registrar had erroneously interpreted Section 134 (4) to mean that the appeal should have been brought within 1 year of the judgement. The provision, however, clearly reads that knowledge of the judgement will be assumed after 1 year of the judgement and an appeal should be filed within 30 to 70 days (depending on the nature of the case) from that date of assumption of knowledge of the judgement.
In the case of Chali Lamini v Asta Bahadur Tamang and Others, it was decided that just because an application to receive a copy of the judgement has been provided, it cannot be said that the person has knowledge of the judgement. Such knowledge on the part of the party can only be assumed if the copy of the judgement has been provided. In a latter case of Siyaram Mahato v Pavitra Narayan Mahato, it was argued that knowledge of the judgement can only arise after a copy of the judgement has been provided and not when the application requesting for a copy is made, citing the case of Chali Lamini. However, the Supreme Court decided that the facts in these cases were different. In Siyaram, the party hid the fact that an application requesting for a copy of the judgement had already been made. Later, the party received the copy of the judgement via another application and argued that the limitation period began from that date of receipt of the judgement (received via the second application). However, the Supreme Court decided that the limitation period got triggered from the first date of application itself (where he had received a copy of the judgement as well). This case highlights what the judgement in Gandib Kafle has cautioned about – a party arguing that they received knowledge of the judgement on a latter date, with the intent to extend the limitation period. A court should remain cautious to such practices.
6.4.3. Of Agents (Waris)
It is not always possible for a party to attend a court proceeding themselves. Therefore, they can appoint someone as an agent (waris) to represent them in the case. Such an agent can be the lawyer as well. When a suit is being filed, the contract establishing a principal-agent relationship (warisnama) should be submitted as well, if an agent is to be hired.[44] Needless to say, a legally incompetent agent cannot make any representation on behalf of the principal. Further, the principal-agent relationship must be valid.[45] Keeping an agent in a case is equivalent to the party themselves being present before the court. An agent’s act is equivalent to an act undertaken by the party. An agent’s loss or a win in the case is equivalent to a principal’s loss or a win.
In civil cases, the parties cannot be compelled to appear before the court themselves. They cannot be barred from appointing an agent to appear on their behalf.[46] The right to keep an agent can however be curtailed if there is a reasonable ground to do so, even in civil cases.[47] If any such bar is put upon the parties, they should seek legal remedy, failing which, and in case of absence of the parties in the proceedings, the parties cannot later claim that they were not heard.[48]
In criminal cases, an agent can be kept only if the court allows the party to do so.[49] Therefore, in civil cases, keeping an agent on the behalf of the party is a matter of right, while as in criminal cases, it is a matter of discretion on the court. Therefore, even after a security has been provided to the court (for bail), it is the court’s discretion whether to allow the person to send an agent on their behalf.[50] In criminal cases, since the person is, generally, already in custody and thus, available to come to the court, such agency is not allowed. This can be understood from a case where it was decided that if a person is punished (imprisoned) for a criminal wrong, the person is not allowed to keep an agent.[51] Nevertheless, if the person is not in custody, the person can apply to the court to allow an agent to appear on their behalf.[52] Further, a judgement debtor, who has been directed to imprisonment, when goes for an appeal, can put a request before the high court to allow to keep an agent on their behalf, as they are not yet imprisoned.
Where a party is not allowed by the court to get themselves an agent, and the party fails to be present before the court themselves, the party’s lawyer cannot represent the client’s case, as under Section 22 of the Nepal Bar Council Act, 2050 B.S., as there is no presence of a party (or an agent) to whom the court can provide legal remedy to.[53] Further, as under Section 22 (1), a lawyer is only allowed to present their client’s case before a court. Section 22 (1) does not provide the lawyer with the right to act as an agent. Such provision cannot be interpreted widely to defeat the law established under no. 65 and no. 66 of Part-2, Chapter-1 titled “Adalatiya Bandobasta”(literally translated into “Court Management”) of the former Muluki Ain, 2020 (which dealt with hiring of agents on behalf of a party) to mean that even in absence of the party (after the court denies their request to hire an agent), a lawyer can act as an agent to the party.[54] Currently, the provision dealing with agents has been provided in Section 144 of the National Civil Procedural Code, 2074. A lawyer cannot be considered to act as an agent (waris) without being hired in the manner provided in this provision by extending the scope of Section 22 (1) of the Nepal Bar Council Act, 2050 B.S. In other words, Section 22 (1) of the Nepal Bar Council Act, 2050 B.S. cannot defeat the requirement to hire an agent in compliance with Section 144 of the National Civil Procedural Code, 2074 or no. 65 of Adalatiya Bandobasta of the Muluki Ain, 2020.
6.4.3.1. An Agent’s hearing of a Final Decision
Currently, a contract establishing the principal-agent relationship (warisnama) only survives till the date of the judgement. After such period, the relationship ends automatically. Once a principal-agent relationship comes to an end, the agent cannot act on behalf of the principal. Further, even during the existence of the contract, any act that is barred by the contract, cannot be performed by the agent.
Unlike in the current practice, where the principal-agent relationship comes to an end with the judgement, under no. 65 (3) of Part-2, Chapter-1 titled “Adalatiya Bandobasta”(literally translated into “Court Management”) of the former Muluki Ain(National Code), it was provided that an agent could represent a principal at all stages of the suit but a principal themselves had to come and know about the win or loss in the case, which an agent was prohibited to do. Therefore, the principal-agent relationship ended earlier than at the date of the judgement (as win or loss can be determined at the stage of final decision itself).
The case of Nirmal Kumar Basnet v Appelate Court Patan and Others provided that once an agent hears the final decision and signs in the opinion book of the court, the limitation period for appeal for that judgement is said to have been triggered from that date of signing itself, as no. 65 and no. 193 were interpreted in such a manner that singing of the opinion book by an agent was construed to mean signing of the opinion book on the part of the principal, which triggered the limitation period.[55]
However, the Supreme Court had, prior to this judgement, previously provided a judgement in the case of Nepal Telecommunications v High Court of Rajbiraj,[56] where it had been decided that even if an agent signs in the opinion book agreeing that they have heard the judgement, the period of limitation for appeal does not get triggered. The court reasoned that under no. 65 (3), the party themselves had to come and know of the decision of the case. Therefore, an agent’s signing of the opinion-book was said not to be on behalf of the party. Here, the court has focused on a part of no. 65 (3), which stated that the party themselves should be present and know about their win or loss in the case. Nevertheless, the practice and the latter jurisprudence shows that an agent’s signing of the opinion book, verifying that the decision has been heard, triggered the limitation period for the party, as under the Muluki Ain, 2020 B.S.
In the case of Puti Sherpa, it was decided that, hearing of final decisions is an important aspect of a case and it is for such reason that an agent should be allowed to hear the final decisions of a case on behalf of the party. The court decided that no. 65 (3) provided that the principal-agent relationship survives till the case it disposed off. A case is disposed off, when a decision has been made and hearing of the decision is an important and inseparable aspect of it. A decision cannot be said to be concluded unless the decision is heard. An agent, generally, verifies in the opinion book that the final decision has been heard by them, immediately after the decision or on the date of the said decision. Such hearing of the decision was decided to be binding on the principal.[57] Here, the court has focused on the part of no. 65, which provided that an agent’s loss or a win is a principal’s loss or a win, rather than focusing on the part where it has been stated that the principal themselves should appear and know about the result of the case. In the same case, it was decided that such hearing of the final decision by an agent is also important to trigger the limitation period for appeal (as was the prevailing practice then[58]). However, in the same judgement itself, the court has ironically (not consciously) highlighted the reason why such document accepting hearing of final decision by an agent should not trigger the limitation period. The judgement states that the opinion book only states the result of a suit. Summary of the reasons leading to such decision might also be included but all the reasons are not disclosed (as disclosed in the copy of the judgement itself) in the opinion book. The same has been mentioned in the National Civil Procedural Code, 2074 B.S. as well.[59] A full disclosure of the reasons and legal analysis is required to enable a judgement-debtor to effectively make an appeal. Such enablement cannot be made by a document where mere result of the dispute and summary of reasons are disclosed. Therefore, a copy of the judgement, where full disclosure has been made, when received by the party, should trigger the limitation period, as has already been discussed above as well (see, part 6.4.1.3. of this article).
The case of Puti Sherpa has distinguished further between the case of Mundrikadevi and the case of Nirmal Kumar Basnet. In the case of Mundrikadevi, it had been decided that once a final decision has been heard, the principal-agent relationship comes to an end and the agent’s receipt of a copy of the judgement (after the relationship has ended) does not trigger the limitation period for the principal. The agent’s taking of a copy of judgement cannot be equated to mean that the principal has taken a copy of the judgement. The court in Puti Sherpa correctly stated that an agent cannot go beyond the scope of the principal-agent relationship, which, as under no. 65 only survives till the time of the final decision. (An agent’s taking of a copy of the judgement has been further discussed below. See, part 6.4.3.2.)
In the case of Nirmal Kumar Basnet on the other hand, it was decided that an agent’s hearing of a final decision, is equivalent to a principal’s hearing of a final decision. The court in Puti Sherpa, decided that these two judgements are not in conflict as the facts are different. The court is correct in coming to this conclusion. Mundrikadevi deals with taking of a copy of the judgement, while Nirmal Kumar Basnet deals with hearing of the final decision of the court. The court decided that an agent can hear a final decision and sign the opinion-book on the behalf of the principal but an agent cannot take a copy of a judgement on behalf of a principal as the principal-agent relationship would have already ended. Therefore, an agent’s taking of a copy of the judgement did not trigger the limitation period but their signing of the opinion book verifying that a judgement has been heard, did.
Similarly, the limitation period does not get triggered if the court has directed the agent to appeal after the relationship has ended. The court in Puti Sherpa made a legally correct analysis of the two judgements. However, the court is incorrect in concluding that the limitation period gets triggered after the agent hears the final decision (as a judgement has not yet been provided.) The Supreme Court was again unable to correct the legal shortcoming under the Muluki Ain, 2020 B.S. with regards to the triggering of the limitation period.
In case of an agent signing the opinion book verifying that the agent has heard the final decision, the limitation period should not get triggered despite the principal-agent relationship existing at that time, because, the opinion book does not contain complete reasons that helped in reaching to the conclusion. Such incomplete document cannot enable a judgement-debtor to effectively make an appeal. In case of an agent receiving a copy of the judgement, the limitation period is not triggered, as such receipt of the judgement is done after the principal-agent relationship would have already ended (except in circumstances where the principal-agent relationship allows for continuance of such relationship even after the judgement has been delivered. For example, in case of existence of adhikrit warisnama between the principal and the agent.) (See, Part 6.4.3.2 of this article where adhikrit warisnama has been discussed).
While the case of Puti Sharma shows (the prior jurisprudence) that an agent’s signing of the opinion book, verifying that a judgement has been heard, triggers the limitation period. The author disagrees with the interpretation of no. 65 (3) as was done by the court in this case. The court only focused on the fact that the decision and hearing of a decision is an important aspect of a case. The court focused on how an agent’s win or loss is a principal’s win or a loss, and thus such win or loss should be communicated to the agent on behalf of the principal. The author agrees with the case of Nepal Telecommunications v High Court of Rajbiraj, where the court focused on the part of no. 65 (3), which provided that the principal themselves should come and know about the result of the case. Therefore, the principal (as under no. 65 (3)) intends to know about the win or loss himself and not through the agent. Win or loss in a case can be known at the stage of final decision itself and thus, in my opinion, the principal-agent relationship should end at the stage immediately before the pronouncement of the final decision. Therefore, signing of the opinion book by the agent verifying that the decision has been heard, should not be in a representative capacity to the principal, as the principal-agent relationship would have already ended. Under such interpretation, even if a principal could have absconded such hearing of the result, the court could have sent a notice to the principal about the limitation period, which could have prevented any “late appeals”, as the notice would have triggered the limitation period. (See, part 6.4.1.4 of the article). However, under the old Muluki Ain, 2020 B.S., the judgement in Nepal Telecommunications v High Court of Rajbiraj was not followed and the judgement in Puti Sherpa was followed.
The Supreme Court in Gandib Kafle (dealing with the current jurisprudence) decided that the limitation period does not get triggered simply because the party or their lawyer was present during the arguments. It also does not get triggered simply because the party or their agents had signed the opinion book, as only a summary is provided in the opinion book, which does not effectively allow a party to make an appeal. The Supreme Court also noted the practice where a principal can file for an appeal even after the time period for appeal had been passed by the agent, stating that such right to appeal was not provided to the agent. Therefore, while in the past, the agent’s signing of the opinion book triggered the limitation period, currently, it does not.
6.4.3.2. An Agent’s Receipt of Copy of Judgements
An agent can only represent the principal while the principal-agent relationship is in existence. Currently, such relationships, generally, cease to exist when a judgement is provided. Once the judgement has been provided, a new agent-principal relationship is required at the stage of appeal as the earlier principal-agent relationship ceases to exist.[60] Once a case has been disposed off, an agent cannot be provided with the copy of the judgement (in representative capacity to the principal).[61] An agent’s taking of a copy of a judgement does not trigger the limitation period.[62] For an agent to take a copy of the judgement on behalf of the principal, the principal must authorise such an action,[63] or the judgement should have been provided on the same date of final decision.[64]
However, there exists a special type of a court-approved contract establishing a principle-agent relationship (known as adhikrit warisnama[65]). In such cases, since the principle-agent relationship can exist even after the date of the judgement, the agent’s taking of a copy of the judgement amounts to the principal’s taking of a copy of the judgement. In such cases, an agent’s taking of a copy of the judgement also extends to mean knowledge on the part of the principal.
6.4.4. Power of Attorney (Wakalatnama)
6.4.4.1. Decision in Gandib Kafle
The Supreme Court in Gadib Kafle noted that the relationship between a lawyer and a client is contractual in nature, citing the case of Gaurishankar Shah.[66] Such contract ends with the judgement. Therefore, even if a lawyer receives a copy of the judgement, it does not mean that the judgement is received in a representative capacity to the client.
6.4.4.2. Additional Analysis
A lawyer cannot represent their client’s case without receiving a valid power of attorney from the client. So as to represent a principal, as an agent, a contract establishing a principal-agent relationship is a must.[67] Power of attorney ends when a judgement is delivered and thus, a lawyer’s obligation towards their client ends when the power of attorney ends. A lawyer cannot go beyond the power of attorney provided to them. Since the power of attorney does not survive after a judgement has been delivered, a mere receipt of copy of judgement by a lawyer does not mean that the client is aware as to the judgement and its elements. Therefore, it cannot be said that the period of limitation with regards to appeal starts from the date of the lawyer’s knowledge of the judgement when the principal-agent relationship between the lawyer and the client has already ended. The limitation period only starts when the client themselves is aware of such judgement. Even if a lawyer makes a communication of the judgement to their client, such a communication does not establish knowledge on the part of the client, since the power of attorney (principal-agent) relationship would have already ended. However, if the judgement is provided to a lawyer on the same date of the final decision, the limitation period gets triggered.[68]
It is true that once the power of attorney (wakalatnama) ends, the lawyer cannot take a copy of a judgement on behalf of their client. Since judgements are public documents, a lawyer can receive a copy of the judgement for themselves, but not on behalf of the client. However, if the lawyer is provided with an adhikrit warisnama, the lawyer’s taking of the copy of the judgement triggers the limitation period for the party (as discussed above in the case of an agent’s taking of a copy of a judgement on behalf of a party. See, part 6.4.3.2. of the article.) Here, it should be noted that the contract providing for power of attorney (walakatnama) always come to an end with judgement and thus the right to receive a copy of the judgement in a representative capacity cannot be provided to the lawyer via the wakalatnama. It can only be provided to the lawyer if the lawyer is made an agent (waris) via an adhikrit warisnama.
(The readers should note the difference between a warisnama and a wakalatnama. While both are contracts that establish a principal-agent relationship, wakalatnama is provided to an advocate allowing them to perform their “lawyer-duties”, while as warisnama can be provided to any person (which can be the advocate as well), who can appear before the court on the party’s behalf but will only be allowed to perform “party-duties” and not “lawyer-duties”. An advocate with both warisnama and wakalatnama can perform both the kinds of duties.)
6.4.5. Execution of Judgements
6.4.5.1. Decision in Gandib Kafle
The Supreme Court in Gandib Kafle decided that since the present case against the joint registrar’s refusal to accept the application for appeal was sub-judice before the Supreme Court, the judgement by the Patan High Court should not have been executed. Such a rule against the execution of a judgement by a lower court, when an appeal is pending before a higher court, has been laid down in Section 153(1) of the CrPC. Therefore, the execution of the judgement provided by the High Court was decided to be bad in law. Therefore, the Supreme Court allowed the writ of habeas corpus in favour of the applicant. The Supreme Court rejected the argument that the imprisonment (i.e. execution of the judgement) was done in compliance with the law.
6.4.5.2. Additional Analysis
A final judgement is executable between the parties as a law.[69] However, a judgement cannot be said to be final while an application for appeal or appeal itself is pending. A judgement by a lower court cannot be executed when an application for appeal is pending, when application for appeal has been allowed and where the application has been rejected but a suit has been filed against such rejection and the suit is sub-judice.[70] The applicant in Gandib Kafle had argued that when an appeal is made, there is a possibility of reversal of the judgement given by the lower court. Therefore, it would be unimaginable in law to allow an execution of a judgement by a lower court, during the pendency of the appeal. It is for the same reason that the court found that the imprisonment of the applicant (in accordance with the judgement by the lower court), while an appeal was pending, had violated the law. It was submitted that since the application for appeal was sub-judice before the Supreme Court, it could not be said that the judgement by the High Court was final and executable.
Despite the case being sub-judice before the Supreme Court, the decision by the Patan High Court was executed and the applicant was arrested, thus violating Section 153 of the CrPC, 2074 and Section 9 (1) of the Administration of Justice Act, 2073 and the principle of extended jurisdiction was observed. The Supreme Court in Gandib Kafle decided that if an application for appeal has been denied but a suit has been flied against such a decision, the judgement by the lower court cannot be executed. The court, based on the fact that the application issue was still sub-judice, rejected the defendant’s argument that once an application for appeal has been denied, the judgement can be executed. The applicant had submitted (before the Supreme Court) that the arrest of the applicant, while the appeal proceedings were sub-judice amounted to a violation of Article 16, 17 (2), 18 (1) and 20 (9) of the constitution, which the court has accepted (however, not explicitly).
It should be noted that even the government cannot legally make a decision such that it impacts a case that is sub-judice before a court.[71] Further, while an appeal is sub-judice, another appeal cannot be filed on the same matter as it would violate the principle of natural justice. Therefore, a pending appeal puts a bar on additional appeals (on the same subject matter), execution of a judgement by the lower court on the same subject matter and between the same parties, and decisions by the government that impacts such appeals (or any sub-judice matter).
6.4.6. National Civil Procedural Code, 2074 B.S.
The case of Gandib Kafle has dealt with the provision of appeal as provided under the CrPC. However, the jurisprudence of triggering the limitation period as discussed in Gandib Kafle, can also be extended to the National Civil Procedural Code, 2074 B.S., which deals with civil cases. However, after understanding the case of Gandib Kafle, the wording of Section 205 of the National Civil Procedural Code, 2074 B.S., which deal with appeals and limitation period on it, can be said to be a bit confusing.
Section 205 (1) provides that an appeal should be made within 30 days from the date of gaining knowledge of the judgement (faisala thaha payeko miti). Section 205 (2) provides that where the party or the agent was present, the limitation period (of 30 days) begins from the date of hearing of the judgement (faisala suni payeko miti), and where the party was not present, the limitation period (of 30 days), begins from the date of issuance of notice regarding the judgement. The first part of Section 205 (2) has been drafted on the presumption that the judgement has been made on the same date as of the final decision. Therefore, the use of “date of hearing of the judgement” (faisala suni payeko miti) in Section 205 (2), actually means “date of knowledge of the judgement” (faisala thaha payeko miti). Section 205 (3) provides (and clarifies) that if a judgement is made on the date of the final decision itself, in presence of the party or their agent, it will be assumed that the party has gained knowledge of the judgement as under Section 205 (1).
Section 205 (4) provides that knowledge of the judgement on the part of the party is automatically presumed after 6 months from the date of verification of a judgement. And thus, the party is supposed to make and appeal within 6 months and 30 days. A clarification as under Section 205 provides that the date of knowing of the judgement should be calculated from the date of verification of the judgement by the judge.
A simple conclusion can be that the limitation period gets triggered from the date of knowledge of the judgement and in case of Section 205 (4), the time period of 6 months is calculated from the date of verification of the judgement. After 6 months, knowledge of the judgement is automatically presumed.
7. Conclusion
The case of Gandib Kafle has clarified the instances that trigger the limitation period for appeal. Further, it has clarified various aspects that need to be noted with regards to appeal such that an party’s right to appeal is not impacted negatively. While the case dealt with a criminal offence, the jurisprudence developed is also applicable to civil wrongs. The article has extended the case of Gandib Kafle to thoroughly discuss the concepts like judgements, decisions, appeals, limitation period, finality of judgement, etc. The jurisprudence highlighted in this article entails important practical concepts for judges and lawyers to understand. The article has also highlighted the jurisprudence that has historically existed, and the current jurisprudence with regards to civil cases as well. While these concepts like judgements, decisions and appeals seem to be simpler concepts of law, improper interpretations of such concepts can cause mischief in the justice mechanism, as has been highlighted by Gandib Kafle. The improper practice in law, with regards to appeal, as has historically existed, have acted as an impediment in seeking “greater judgements”. It is for such reasons that the article has also discussed the role of an agent and of a lawyer when it comes to triggering of the limitation period for appeal, with the intent to clarify all the confusions surrounding appeals. It is for this reason that the clarifications provided in Gandib Kafle and this article, albeit addressing such simple concepts of law, entail a great importance in the justice mechanism.
[Clarification: The article has used the term “judgment debtors” and “judgement creditors” so as to avoid any confusion and for the sake of simplicity in the article. However, it should be noted that it is not just judgement debtors who can file an appeal. Any party that is not satisfied with the judgement can file an appeal, as can be understood from Section 205 (1) of the National Civil Procedural Code, 2074 B.S. and Section 134 of the CrPC, 2074 B.S. Such unsatisfied party, can be a judgement creditor as well.]
*Divas Bashyal is a B.B.M/LL.B. Graduate from Kathmandu University School of Law, Dhulikhel, Nepal. He has been assisted by Sankalpa Koirala for the purpose of this article.
(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers.)
[1] National Criminal Procedural Code 2074, s 114.
[2] Khalasta Bahadur Dahal v Department of Land Revenue, SC Bulletin, Year 3, Part 7, Volume 49, Page 11; Baijanath Raut Kurmi v Nandalal Raut Kurmi and Others; Indralal Rana and Others v Land Revenue Office Gulmi and Others ; Baucha Maharjan v Jhyapucha Maharjan and Others; Madhav Prasad Nepal v Chief District Officer, Sindhupalchowk and Others; Laxmi Naryan Nhuche Shrestha v Tuising Fasi Shrestha and Others
[3] Narayankrishna Lohala and Others v Land Revenue Department, Bhaktapur and Others, SC Bulletin Year 3, Part 22, Volume 64, Page 9
[4] Ram Prasad Bhattrai v Customs Office, Kailali and Others; Nagendra Tiwari v Prasad Pandit and Others
[5] Ram Ujjain Raya v Awadh Bihari Raya Yadav and Others ; Sharand Baishnam v Janaki Ballabh Sharand Baishnam
[6] Tek Bahadur Khadka v Bam Bahadur Khadka ; Chaudhary Raya Yadav and Others v Bipat Raut Barai, SC Bulletin Year 20, Part 4, Volume 454, Page 5; Ananda Bahadur Shrestha v Arjun Narsinghha Rana and Others
[7] Sharad Prasad Koirala, Madhyastata Kanoon 285; Ananda Bahadur Shrestha v Arjun Narsinghha Rana and Others
[8] Ganesh Bahadur Thapa v Gorkha Mall and Others ; Rampati Shah Sudi and Others v Land Revenue Office, Mahottari, Jaleshwar
[9] Raghuwir Kami (Kale) v His Majesty’s Government; Ganapati Neupane and Others v Nagar Bikash Yojana Napi Sambandhi Bishesh Adalat, Pokhara (Special Court, Pokhara) and Others
[10] Gyan Bahadur Rai and Others v Dil Bahadur Rai ; Chandra Sekhar Nayak Giri v Home Ministry, His Majesty’s Government, SC Bulletin Year 11, Part 4, Page 10; Birat Thapa v Nepal Bangladesh Bank Ltd, Central Office, Kathmandu and Others; Hem Kumar Shrestha v His Majesty’s Government, SC Bulletin, Year 12, Part 5, Page 6; Rajikol and Others v Appellate Court Patan and Others ; Parshuram Jha v Sectretariat of Council of Ministers And Others ; His Majesty’s Government v Panda Ghale and Others
[11] Devi Khadka v Lal Kumari Gauchan and Others (Unpublished) (Retrieved from: Gauri Bahadur Karki, Collection of Judgements (Civil) (Volume 2) 1391); Lakhraji Kewtin v Bhagwanta Pal and Others
[12] Nani Laxmi Suwal v Patan High Court, SC Bulletin, Year 6, Part 4, Page 12; National Civil Procedural Code 2074, s 199.
[13] Nani Laxmi Suwal v Patan High Court, SC Bulletin, Year 6, Part 4, Page 12; National Civil Procedural Code 2074, s 199.
[14] National Civil Procedural Code 2074, s 199.
[15] National Civil Procedural Code 2074, s 199.
[16] Finance Ministry (Customs Department), His Majesty’s Government and Others v Ramrichapal Agrawal, SC Bulletin 2049, Year 1, Part 17, Page 9; Kiran Raut Chettri v Director General, Central Statistics Department and Others
[17] Lal Bahadur Yadav and Others v His Majesty’s Government; Krishna Hari Shrestha v Daan Bahadur Shrestha, SC Bulletin 2068, Part 7, Page 8
[18] Sarwaccha Adalat Nirdaya Sangraha (SC Collection of Judgements), Part 5, Page 415
[19] Lokbhatta Shumsher Rana v Ramadevi Rajbhandari , SC Bulletin Year 7, Part 3, Page 1; Gunrajya Laxmi Shah and Others v Uttam Prasad Kharel and Others, SC Bulletin, Year 8, Part 3, Page 1
[20] Manjudevi Gupta v Appellate Court, Rajbiraj, Saptari; Praad Hira Kansakar v Kesharman Kansakar and Others, SC Bulletin 2066, Year 18, Part 9, Page 43; Fulgen Sahu Bhyahut Sudhi and Others v Krishna Devi Byahut Sudhi; Lakhraji Kewtin and Others v Bhagwanta Pal and Others
[21] Anil Hajara v Mani Mahara Chamar and Others, SC Bulletin 2066, Year 18, Part 10, Page 28; Sagarmatha National Park v Kami Singh Tamang, SC Bulletin, Year 8, Part 23, Page 12
[22] Tulasi Kumar Shrestha v Sundar Shrestha, SC Bulletin 2066, Year 18, Part 11, Page 14; Birat Thapa v Appellate Court, Biratnagar and Others, SC Bulletin 2067, Year 19, Part 11, Page 6
[23] Udaybir Gurung v Chavi Lal Bhattrai and Others ; Laxmi Narayan Maharjan and Others v Secretariat of the Council of Ministers and Others
[24] Jamunadevi and Others v Janaki Devi Subedi, SC Bulletin, Year 9 Part 14, Page 7
[25] Ramprakash Chaudhary v Ministry of Finance and Others ; Chettra Kumari Khadka Chettri and Others v Chittra Kumari Khadka Chettri
[26] Dipak Gurung v Bishnu Raj Gimine and Others; Ganapat Tharu v Jhabbu Tharu and Others; Bidur Singh Himal v Ram Hari Upadhyay and Others
[27] Padam Bahadur Rai v Laxmi Maya Thapa, SC Bulletin 2053, Year 5, Part 1, Page 5 (citing Administration of Justice Act 2048, s 9 (1) (c)); Chidambar Sharma Adhikari v Lila Sharma Adhikari, SC Bulletin, Year 5, Part 1, Page 6
[28] Padam Bahadur Hiski Magar v Homnath Upadhyay, SC Bulletin, Year 5, Part 6, Page 18; Man Bahadur Gurung v His Majesty’s Government
[29] Administration of Justice Act 2073, s 9 (1) (c).
[30] Administration of Justice Act 2073, s 9 (1) (c).
[31] Administration of Justice Act 2073, s 9 (1) (a).
[32] Mahanta Maharjan and Ohters v Appellate Court, Patan and Others, SC Bulletin 2052, Year 4, Part 8, Page 21
[33] Bharat Raj Upreti, Himal (No. 200, 2064 (Shrawan))
[34] Ganesh Raut Kurmi v Uma Shankar Yadav, SC Bulletin, Year 8, Part 20, Page 9 (citing Muluki Ain 2020 (Court Management), no. 59 and 193); Nirmal Kumar Basnet v Appellate Court, Patan and Others, SC Bulletin, Year 11, Part 16, Page 9 (citing Muluki Ain 2020 (Court Management), no. 65 and 193; citing District Court Regulations 2052, r 46)
[35] Forest Ministry v Ram Maharjan, SC Nirnaya SaarSangraha 031-36, Page 87; Nhuchhe Bhakta Sayaju v Guthi Sansthan Central Office and Others, SC Bulletin, Year 12, Part 22; Rishikesh Shah and Others v His Majesty’s Government; Muluki Ain 2020 (Court Management), no. 197.
[36] National Criminal Procedural Code 2074, s 136 (3) (b).
[37] Dambar Kumar Neyonghang Limbu and Others v Gangamaya Sendang Limbu; Bijaya Bahadur Sahi and Others v Hari Prasad Paudel
[38] Muluki Ain 2020 (Court Management), no. 193; Padma Prasad Upadhyaya v Nagar Bikash Yojana Napi Sambandhi Bishesh Adalat Pokhara and Others, NKP 2040 Special Part (Bishesh Anka), Page 191, B. Decision no.42; Parjun Koyi v District Education Officer, Raj Kishor Singh and Others; Chandra Sekhar Nayak Giri v Home Ministry, His Majesty’s Government and Others, SC Bulletin, Year 11, Part 4, Page 10
[39] Rabindra Shakya v Sagar Ratna Shakya, SC Bulletin 2067, Year 19, Part 8, Page 17
[40] National Criminal Procedural Code 2074, s 134 (4); National Civil Procedural Code 2074, s 205.
[41] Ramrati Devi Yadav and Others v Renu Kumari Yadav and Others
[42] Lila Devi Mahaseth and Others v Shiva Narayan Yadav, SC Bulletin 2066, Year 18, Part 24, Page 12
[43] Punyabikram Rana v Keshar Bahadur Rajbhandari
[44] Ratnabahadur Gurung v Lal Bahadur Gurung, Sarwaccha Adalat Nirnaya Sangraha (Supreme Court Collection of Judgements), Part 1 Kha, Page 173; Pradhumna Prasad Singh v Amar Singh Chaudhary
[45] Harka Limbu v Bakhta Bahadur Limbu and Others, Sarwaccha Adalat Nirnaya Sangraha (Supreme Court Collection of Judgements), Part 2 A, Page 120
[46] Lok Bahadur Karki Chettri v Keshavraj Rajbhandari and Others (citing Muluki Ain 2020 (Court Management), no. 65); Umadevi Kalwar, v Waijanath Shah Kalwar, SC Bulletin Year 10, Part 07, Page 21 (citing Muluki Ain 2020 (Court Management), no. 65); Hemanta Shumsher Ja. Ba. Ra. v Surya Kumari Pandey; Muluki Ain 2020 (Court Management), no. 65 (2).
[47] Sawir Ali Miya v Revenue Tribunal, Kathmandu SC Bulletin, Year 9, Part 23, Page 3
[48] Dinesh Hathi and Others v Office of the Village Development Committee, Ratauli, Mahottari, SC Bulletin, Year 9, Part 4, Page 8
[49] Muluki Ain 2020 (Court Management), no. 65 (2).
[50] Chiranjibi Khatiwada v Government of Nepal, SC Bulletin, Year 14, Part 2, Page 24
[51] Shankarananda Aragariya (Represented by Rajaram Aragariya Yadav) v His Majesty’s Government, SC Bulletin, Year 12, Part 2, Page 2
[52] Mina Shrestha v Makwanpur District Court, SC Bulletin, Year 15, Part 16, Page 16
[53] Purna Prasad Rajbanshi v Kathmandu District Court and Others, SC Bulletin 2068, Mangshir-2, Page 11
[54] Purna Prasad Rajbanshi v Kathmandu District Court and Others, SC Bulletin 2068, Mangshir-2, Page 11
[55] Nirmal Kumar Basnet v Appelate Court Patan and Others, SC Bulletin, Year 11, Part 16
[56] Nepal Telecommunications Co. Ltd., Solukhumbu v Appealate Court, Rajbiraj and Others, Date of the Judgement: 2057/05/08 (Application no. 305 of 2057 B.S.) (Unpublished) (Retrieved from: Gauri Bahadur Karki, Collection of Judgements (Civil) (Volume 1) 611)
[57] Puti Sherpa and Others v Nepal Telecommunication Company Limited (citing no. 65 (3)); Nirmal Kumar Basnet v Appelate Court, Patan and Others, SC Bulletin, Year 11, Part 16, Page 9 (Citing no. 65 and 193)
[58] Mahanta Maharjan and Others v Appellate Court, Patan and Others, SC Bulletin 2052, Year 4, Part 8, Page 21
[59] Muluki Ain 2020 (Court Management), no. 197 (1).
[60] Shri Krishna Mulmi v Patan High Court, SC Bulletin, Year 9, Part 2, Page 16
[61] Shri Krishna Mulmi v Patan High Court, SC Bulletin, Year 9, Part 2, Page 16
[62] Shri Krishna Mulmi v Patan High Court, SC Bulletin, Year 9, Part 2, Page 16
[63] Shri Krishna Mulmi v Patan High Court, SC Bulletin, Year 9, Part 2, Page 16
[64] National Criminal Procedural Code 2074, s 134 (3).
[65] National Civil Procedural Code 2074, s 153.
[66] Gaurishankar Shah v The Government of Nepal, SC Bulletin, Year 2069, Volume 477, Page 34
[67] Bhoj Bahadur Shedai Chettri v Ishwari Dutta Shedai; Mina Shrestha v Makwanpur District Court, SC Bulletin, Year 15, Part 16, Page 16
[68] National Criminal Procedural Code 2074, s 134 (3).
[69] Karna Bahadur Khoteja v Narayan Prasad Khoteja, SC Bulletin, Year 8, Part 15, Page 3
[70] Bhumendra Kumar Goyal v Kathmandu District Court and Others, SC Bulletin 2066, Year 18, Part 21, Page 20
[71] Jungabahadur Kurmi v Bangsidhar Aggrawal and Others; Rabi Prasad Giri v Napi Gochwara and Others; Bheshraj Pandey v Kathmandu Metropolitican and Others
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