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Abdul Hammed Khan and ors. Vs. Father Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberC.M.P. Nos. 14485 and 14487 of 1980
Judge
Reported inAIR1981AP316
ActsAndhra Pradesh High Court (Appellate Side) Rules - Rules 10(14), 34, 70(1), 70(10), 70(11) and 70(14); Andhra Pradesh Civil Practice Rules, 1960 - Rule 129(A); Evidence Act, 1872 - Sections 76; Limitation Act - Sections 12(2); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 1 - Order 47, Rule 3
AppellantAbdul Hammed Khan and ors.
RespondentFather Khan and ors.
Appellant AdvocateR. Vasudeva Pillai, Adv.
Respondent AdvocateM.L. Ramakrishna Rao, Adv.
Excerpt:
limitation - carbon copy - part 1 rule 10 (14) of a. p. high court (appellate side), rules and rule 129-a of a. p. civil rules of practice, 1960 - matter regarding computing time period of limitation for filing petition - original copy of order or carbon copy to be filed whenever demanded in review petition - held, time period spent in receiving xerox of original order not to be taken into account while computation of limitation. - - it is not in dispute that if the time spent for obtaining the carbon coov is excluded, the review petitions are well within limitation. if the period so spent is excluded in the instant case, the review petitions are well within the period of limitation and there is no delay to be condoned......rao, j.1. these two petitions are to condone the delay of 18 days, if it is there, in filing the review petitions. in support of the petitions, it is stated in the affidavit that the order under review in the l. p. as was pronounced on 7-8-1980 and an application for issuance of a carbon copy of the order was made on 8-8-1980 and the copy was issued on 26-8-1980. the petitioner was advised that the time taken for issuance of the carbon copy would save limitation for purposes of filing the review petitions. the review petitions were filed on 24-9-1980. an application for issuance of a certified copy was not made earlier under the impression that the carbon copv would be sufficient for filing the review petitions. therefore, certified copy was not filed alone with the review petitions......
Judgment:

Madhava Rao, J.

1. These two petitions are to condone the delay of 18 days, if it is there, in filing the review petitions. In support of the petitions, it is stated in the affidavit that the order under review in the L. P. As was pronounced on 7-8-1980 and an application for issuance of a carbon copy of the order was made on 8-8-1980 and the copy was issued on 26-8-1980. The petitioner was advised that the time taken for issuance of the carbon copy would save limitation for purposes of filing the review petitions. The review petitions were filed on 24-9-1980. An application for issuance of a certified copy was not made earlier under the impression that the carbon COPV would be sufficient for filing the review petitions. Therefore, certified copy was not filed alone with the review petitions. It was therefore prayed that the carbon copy be received and the filing of certified copy may be dispensed with. The petitioner was also under the bona fide belief that the time taken in issu-ine the carbon copy would be counted to save limitation and if still it is found that it does not so save limitation, the delay in filing the review petitions may be condoned.

2. The respondent filed a counter-affidavit statine that the review petitions were filed on 24-9-1980 while the carbon copy was issued to the petitioner on 26-8-1980 and that the prayer that the delay, if any may be condoned is as vaeue as it could be. It is also stated that no ground has been made out for condoning the delay of about more than 16 days in filing review petitions. The grounds raised are untenable and do not deserve any consideration.

3. The learned counsel for the petitioner Mr. Vasudevapillai submitted that the time taken in issuing the car-bon copy is to be excluded in computing the period of limitation since Section 12(2) of the Limitation Act only speaks of a copy that is to be filed along with the appeal, revision or review petition and that 'copy' includes a 'carbon copy'. Therefore, if the days spent for obtaining the carbon copy are excluded, the review petitions are within limitation and there does not arise the question of condonation of any delay. He further submitted that under the bona fide belief that the carbon copy serves the purpose contemplated under Section 12(2) of the Limitation Act. no application for certified copy was made.

4. We shall first take up the question, whether the time spent in obtaining the carbon copy could be excluded while computing the period of limitation for filing the review petition. It is not in dispute that if the time spent for obtaining the carbon coov is excluded, the review petitions are well within limitation.

5. Sub-rule (1) of Rule 70 of the Rules of the High Court of Judicature, Andhra Pradesh (hereinafter called the 'Appellate Side Rules) states that when a person is entitled to obtain a copy of a proceeding or document filed in or in the custody of the court, he may pre-sent an application therefor and that the application shall set out the name of the applicant, his position in the appeal or proceeding and a description of the document of which a copy is required. It is not necessary for the present purpose to refer to the other rules governing issuance of notice for depositing stamp papers, etc. Sub-rule (10) of Rule 70 directs that all copies furnished by the court shall be certified to be true copies, and shall be sealed with the seal of the court. Sub-rule (11) requires that every copy shall bear an endorsement of dates in respect of (i) application made (ii) stamp-papers (or charges) called for (ii) stamp-papers (or charges) deposited (iv) copy ready and (v) cony delivered (or posted). Sub-rule (141 of Rule 70 governs the issuance of carbon conies and states that the carbon copies shall be certified to be true copies and shall bear the seal of the court and shall contain the particulars mentioned in Sub-rule (11) above. This, in short, is the procedure for obtaining the copies, certified or carbon. No doubt, the heading over Rule 70 speaks of 'certified copies' and it is Sub-rule (14)thereof that governs the 'carbon copies'. As already stated Sub-rule (14) incorporates in itself the reauirements under Sub-rules (10) and (11). Therefore, practi-callv we do not find any substantial or real difference between a 'certified copy' and 'carbon copy' in its precaution. The procedural differences between the two are (1) while for a certified copy an application under Sub-rule (1) of Rule 70 is to be made to the Registrar, it is the court that directs the issuance of a carbon copy and Sub-rule (14) is subiect to the direction of the court granting the issuance of a carbon copy and (ii) stamp papers are to be called for and deposited in case of a certified copy while no stamp-papers need be called for or deposited for a carbon copy. Issuance of a carbon copy shall be on pavment of certain charges while of certified copy on deposit of stamp papers. As Sub-rule (14) is silent as to the charges to be paid, we have called for a note in this regard from the office. It was pointed out in the note that the application fee for the carbon copy is Rs. 2.25 minimum and that fee at the rate of Rs. 0-75 for every 175 words in the form of court fee. Lables are collected and affixed on the carbon CODV application itself. Generally carbon copies are typed in single line and a copy of jt despatched and that after despatch of orders or judgments in no draft cases, no carbon copies are issued, and the applications therefor are converted into those for certified copies. It is also stated that particulars in respect of carbon cooies are available in the concerned Registers maintained. Therefore, even in respect of carbon cooies. charges are as per the number of words. The learned counsel for the petitioner also olaced reliance on A. N. Chanda-sekharaiah v. Commissioner of Endowment ((1978) 2 Andh LT 503) wherein Gangadhara Rao, J. held that the time taken for obtaining carbon copies of the proceedings had to be excluded for purposes of computation of limitation. There, the question was whether the review petition was within the limitation and a carbon copy in the place of certified copy. could be filed alone with the review petition etc.

6. The learned counsel Mr. Rama-krishna Rao, on the other hand submitted that there is any amount of distinction between certified copy and carbon copy. For obtaining certified cow no specialorder of the court, is required whereas for a carbon copy it could be issued only on the direction of the court. He further pointed out that Rule 34 of the Appellate Side Rules only speaks of filing a 'certified copy' and not a 'carbon copy.' The learned counsel also referred to Order 41, Rule 1 of the Civil Procedure Code wherein it is stated tha-the Memorandum of Appeal has to be accompanied by a copy of the decree annealed from and unless the Appellate Court dispenses therewith of the judgment on which it is founded. The expression 'COPY of the.....' is clarified in Rule 34 of the Appellate Side Rules that it should be a 'certified copy.'. Order 47. Rule 3 speaks of the procedure to be followed for preferring the review petitions. It says that the provisions as to the form of oreferrins appeals shah apply, mutatis mutandis to applications for review. As stated it is Order 41, Rule 1 that provides for perferring appeals, which is eaually applicable for review petitions. As a conseouence, according to the learned counsel in the face of Rule 34 of the Appellate Side Rules, it should only be a certified copy that needs to be annexed to review petitions also just as to appeal memorandums. He further submitted that a 'carbon copy' does not satisfy the reauirements of a 'certified copy', Therefore according to him. The time spent for obtaining the caroon copv does not accrue for exclusion from computation of limitation. Accordingly, the present review petitions filed alone with a carbon copy are not maintainable on both the arounds. viz.. since it should be only a certified copy that needs to be annexed to the review petition and (ii) since it is time barred as the time spent for obtaining carbon copy cannot be excluded for purposes of limitation. He further submitted that Civil Procedure Code nowhere defines 'certified CODV' but Section 76 of the Evidence Act defines 'certified copy' as under :

'Every public officer having the cus-tody of a public document which anv person has a right to inspect, shall give that person on demand a CODV of it on payment of legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be and such certificate shall be dated and subscribed by such officerwith his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal and such copies so certified shall be called certified copies.'

The learned counsel submitted that certified copy is one obtained on demand while carbon copy is one issued consequent upon an order of the court. Therefore, it is contended that 'carbon copy' cannot be treated on par with 'certified copy'.

7. Now as seen from the definition of 'certified copy' it is clear that it is one issued on payment of the legal fee certifying it to be a true copy and affixing seal of the authorised officer. As a comparative study Sub-rule (14) of Rule 70 of the Appellate Side Rules as already referred to above, requires that a carbon copy shall be certified to be true and shall bear the seal and other particulars mentioned by Sub-rule (11) of Rule 70. There is. therefore virtually no substantial or real difference between a 'certified copy' and 'carbon copy'. The only remaining submission is that in the case of a carbon copy it is necessary to obtain orders of the court for its issuance white certified copy is obtained on demand. We are not able to appreciate this as a substantial difference tor either of the copies are obtained only on an application from the court or office made therefor. Further the applications for 'carbon copy' are converted into those for 'certified copy' when once the order of other proceeding is despatched. The mere reason that 'carbon copy' is issued only consequent to an order of the court cannot be a substantial ground to distinguish it from 'certified copy' saying that it does not fulfil the conditions of a certified copy. It appears that the element of urgency is inherent in 'carbon copy'. Incidentally the learned counsel pointed out Rule 129-A of the Civil Rules of Practice which speaks of issuance of an urgent copy. It provides that copies of documents shall be prepared in accordance with the serial order of the applications except where the court makes a special order for precedence in respect of any particular application, and where it is so ordered, such a copy shall be delivered by giving precedence over others. It also states that separate application duly stampedis to be made tor obtaining orders of precedence. Even copies issued under special orders are treated to be 'certified copies' for all purposes, including exclusion for purposes of limitation. If the same principle is applied in regard to the 'carbon copy' also, which is issued on a special order, iust as for an urgent 'cetified copy the time spent for obtaining 'carbon copy' needs to be excluded while computing the period of limitation. There is, thus, no substantial difference between an 'urgent certified copy' and 'carbon copy' and in view of this the contention that carbon copy is issued only subject to the order of the Court is of no avail since order of the court is required even for an urgent certified copy.

8. The learned counsel for the petitioner further contended that Section 12(2) of the Limitation Act uses the expression 'copy' and not a 'certified copy' for computing the period of limitation and therefore, not only certified copy but 'carbon copy' also enjoys the benefit of exclusion of time spent for obtaining the same while computing the period of limitation. He also submitted that the legislature has designedly used the word 'copy'. Incidentally, it was also submitted that innumerable appeals are filed not only before courts but also before other forums enclosing the copies of orders communicated to them, and such copies are not those obtained on demand. The language employed being plain, we have no hesitation to accept the submission, of the learned counsel Therefore, it is the copy of the order or judement that needs to be enclosed whether it is obtained on demand or as per the order or otherwise, to the appeal, memorandum or other petition. The manner or method adopted for obtaining the copy is not much material. Accordingly, we find that annexing a carbon copy to the memorandum of appeal or other petition for review satisfies the retmirement and that while computing the period of limitation the time spent for obtaining the 'carbon copy' is to be excluded. If the period so spent is excluded in the instant case, the review petitions are well within the period of limitation and there is no delay to be condoned. Therefore, no orders arenecessary on the petitions to condone the delay, if any.

9. We direct that the review petitions be numbered and posted tomorrow.


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