1. This second Appeal by the defendant is directed against the judgment and decree dt. 29-9-1975, passed by the Civil Judge, Hubli, in R. A. No. 22/1968, setting aside the judgment and decree dt. 27-11-1967, passed by the Munsiff, Savanur, in L. C. No. 23 of 1962.
2. The parties have been referred to in the course of this appeal with reference to their position in the trial Court.
3. The plaintiff Gangavva filed the suit L. C. No. 23 of 1962 for partition and possession alleging that she had been married to one Shivappa Totad, the elder brother of defendant No. 1 Gurappa Tipparma Totad and that her husband Shivappa Totad died on 9-1-1951 and thus she was entitled to a half share in the suit properties which were the joint family properties.
4. The defendant No. 1 Gurappa Tippanna Totad contested the suit alleging that his brother Shivappa Totad had bequeathed his half share in the properly in his favour and that Gangavva was living in adultery and was guilty of unchastity and therefore she was not entitled to any share in the properties.
5. During the pendency of L. C. No. 23 of 1962. defendant No. 1 Gurappa Tipparma Totad filed a suit in L. C. No. 37 of 1962 praying for a declaration that the said Gangavva had no right to the properties and had nothing to do with his family and that she had married one Fakeerappa Budihal, who was none than the maternal uncle and she gave birth to a male child Siddappa, impleaded as defendant No. 2 in the said suit.
6. That suit was resisted by the present plaintiff Gangavva.
7. The Munsiff clubbed both the suits and dismissed the plaintiff-Gangavva's suit L. C. No. 23 of 1962 and decreed the defendant's suit L. C. No 37/1962. The plaintiff Gangavva approached the Civil Judge, Hubli, with Appeal R. A. No. 22 of 1968. The Civil Judge held that the 14 appeal in question was preferred against 14 the judgment and decrees in both the 11 suits and that the appeal was in time and he allowed the appeal and decreed L C. No. 23/1962 filed by the plaintiff Gangavva and dismissed the defendant-1's suit L. C. No. 37/1962. The defendant No. 1 being aggrieved by the decree passed in L. C. No. 23/1962 has come up with the present appeal.
8. The learned counsel Sri Kulkarni for the defendant No. 1 appellant urged that R. A. No. 22/1968 was filed only against the decree of dismissal passed only in L. C., No. 23 of 1962 and that no sepal-ate appeal had been filed against the judgment and decree passed in L. C. No. 27/1962 and thus R. A. No. 22/1968 was barred by res Judicata.
9. The learned counsel Sri Kulkarni relied on the decisions in Sheodan Singh v. Daryao Kunwar : 3SCR300 , in Avtar Singh v. Jagjit Singh : 1SCR122 , and in Poovamma v. Sumathi (AIR 1970 Mys 81).
10. The principle laid down in the said decisions is that if the issues involved in both the suits are the same and if the appeal is preferred against the judgment and decree passed in one suit and if the decree passed in other suit is not appealed against, the appeal is barred by res judicata.
11. However, the learned counsel Sri Hiremath for the respondent Gangavva relied on a decision in Ramagya Prasad Gupta v. Murli Prasad AIR 1974 SC 1312W. It is laid down in the said decision as :
'Held that the appeals which arose out of the subsequent suit were not bar red by res judicata. 'The subject matter oil the earlier suit and that of the subsequent suit were entirely different.' what ever might have been the common issues between the two suits, one issue which not common and. made the subject matter of both the suits different was that whether the plaintiff in subsequent suit was solely entitled to compensation from the Government. That issue was not necessarily confined to the existence or validity of the partnership but as to whether the other parties to the suit had contributed to the capital of the firm or entitled to recover from out of the compensation amount. That was not the subject-matter of earlier suit.'
Therefore, in order to attract the principle of res judicata, the subject-matter must be the same in both the cases L. C. No. 23/1962 was filed by the respondent Gangavva for partition and possession of her half share claiming to be the widow of Shivappa Totad, elder brother of Gurappa Tippanna Totad. L. C. No. 37/1962 was filed by the present appellant alleging that the respondent Gangavva had married one Fakeerappa subsequent to the death of her husband, and had delivered a boy by name Siddappa by her second husband Fakeerappa and thus she was in no way connected with the family of Gurappa Tippanna Totad. Therefore, the subject matter in both the suits is entirely different. Issues were not the same even in both the, suits. Therefore, even assuming that the respondent Gangavva had not preferred any appeal against the judgment and decree in L. C. No. 37 of 1962, R. A. No, 22 of 1968 even if filed only against the judgment and decree in L. C. No. 23/1962, would not be barred by res judicata.
12. The next contention raised by the learned counsel Sri Kulkarni is that R. A. No. 22/1968 filed before the Civil Judge was barred by limitation. Limitation is a substantial question of law. It was agitated before the Civil Judge. He held that the appeal was in time. The said question is again raised in the appeal memo and is canvassed again now.
13. It becomes clear from the certified copy produced by the respondent Gangavva in R. A. No. 22/1968 that she applied for certified copy of the judgment and decree on 18-12-1967. The certified copy of the judgment shows that she was given time till 23-12-1967 to produce the copying sheets. There is an, endorsement below the date 23-12-1967 that another date namely 3-1-1968 was given to produce the copying sheets. There is an endorsement on the certified copy of the judgment that copying sheets were produced actually on 17-1-1968. Her counsel was asked to appear on 5-2-1968. Though the copy was ready on 5-2-1968, he appeared on 8-2-1968 and copy was delivered on 8-2-1968. The learned counsel Sri Hiremath urged that on 23-12-1967, time was given to the counsel to produce the copying sheets on 3-1-1968. According to him, the very fact that the copying sheets were received on 17-1-1968 indicated that the time was extended from 3-1-1969 to 17-1-1968. Thus, according to him, the time taken for production of copying sheets should be excluded Admitted by two dates are found in the column relating to the supply of the copying sheets and the last date as already noted above is 3-1-1968. The contention of the learned counsel Sri Hiremath that the respondent's counsel had been given time by the Court to produce copying sheets, is not borne out by any material on record. If, 3-1-1968 is the extended period and if that date was further extended to 17-1-1968, 1 do not think that the copying department would have failed to mention the same also. There is nothing to show that the time 'was extended from 3-1-1968 to 17-1-1968. R. 239 of Karnataka Civil Rules of Practice runs as :
'If the applicant fails to produce the required number of copying sheets within the time fixed for the purpose or the time extended by the Court, the presiding of officer shall pass an order rejecting the application.'
Rule 253 also runs to the same effect. Thus, the learned counsel Sri Hiremath urged that the Court was bound under the said Rules to reject the copying application, if the copying sheets were not produced within the time fixed or within the extended period. Therefore according to him, if the time was not extended from 3-1-1968, the Court would have rejected the copying sheets and would not have received them on 17-1-1968. Rules 239 and 253 make it a mandate for the Court to dismiss the copying application if the copying sheets are not produced within the time. However, the said two rules cannot be pressed into service for the purpose of determining the question of limitation. If the office without bringing to the notice of the presiding officer receives copying sheets after the expiry of the fixed time or the extended time, the I limitation which has started to run will not stop on account of the irregularity or illegality committed by the office. The act of extending the time is a judicial Act. When there is nothing to show that such a judicial act was performed, it would not be proper to accept the argument of the learned counsel Sri Hiremath that when the copying sheets produced on 17-1-1968 were accepted by the office it should be taken that the time was again extended from 3-1-1968 to 17-1-1968. I do not find any material to sustain the said contention. Therefore, the act of receiving copying sheets on 17-1-1968 when there is nothing on record to show that the time was extended from 3-1-1968 to 17-1-1968, will not stop the running of the limitation which had already started.
14. Similar view has been taken in Sitaram v. Chameli Bai : AIR1961MP310 . It was also held in the case, of Pramatha Nath Roy v. Lee (AIR 1922 PC 352 : ILR 49 Cal 999), as:
'that no period can be regarded as 'requisite' under S. 12(2) of the Limitation Act which need not have elapsed if the appellant has taken reasonable and proper steps to obtain a copy of the decree or order. The word 'requisite' means something more than the word 'required'. It must be construed to mean 'properly required'. The burden is on the appellant to show that no part of the delay beyond the prescribed period is due to his default'.
In para No. 4, it has further stated:
'Applying the test laid down in the decisions aforesaid, with which I am in respectful agreement, it must be held that the appellant having not explained why he did not deposit the remaining copying charges for four days after the expiry of the date fixed by the office for the purpose the period of four days could not be excluded.'
It has been held in State of West Bengal v. Midnapore Commercial Co. Ltd., : AIR1978Cal358 (FB)
'By framing rules the High Court cannot extend the period of limitation Prescribed by the Limitation Act. A date is fixed by the department under the rules for filing the stamps and folios. The rules permit that within specified periods the stamps and folios have to be delivered. If stamps and folios are not delivered within this specified period, the applications for copies are liable to be rejected. But the, period specified in the Rules has, nothing to do with extension of the period of limitation prescribed by the Limitation Act. If there is delay in depositing and delivering the stamps and folios after notification, that delay also cannot be taken advantage of by a prospective appellant or applicant, as the time taken cannot be said to be the time requisite for obtaining copy of the order or decree under S. 12(2) of the Act. The fact that a proposed appellant or applicant has made a delayed deposit and the Court has accepted the delayed deposit instead of rejecting the application does not make any difference.'
Similar principle has been reiterated in Santimoy Dey v. Suriya Properties Private Limited : AIR1976Cal81 .
Thus, the fact remains that respondent Gangavva or her counsel had produced the copying sheets much later that is nearly 14 days after the expiry of the extended period merely because the Court instead of rejecting the application, accepted the delayed production of the copying sheets, it does not make any difference at all in the present ease. Therefore, in this view of the matter, the learned Civil Judge was wrong in holding that R. A. No. 22/1968 filed by Gangavva was in time. The material on record clearly goes to establish that R. A. No. 22/1968 has been filed in the Court of the Civil Judge beyond the prescribed period of limitation. Thus, when R. A. No. 22/1968 was filed beyond the period of limitation, the appeal was liable to be rejected. Hence, on this ground alone the present appeal filed by the appellant Gurappa Tippanna Totad is accepted and the judgment and decree passed by the Civil Judge are set aside and the judgment and decree passed by the Munsiff are restored Ultimately L. C. No, 23 of 1962 filed by the respondent Gangavva stands dismissed.
15. In view of the peculiar circumstances of the case, parties are ordered to bear their own costs throughout.
16. Appeal allowed.