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Syed QamanuddIn Ahmed Vs. the Special Deputy Collector, Land Acquisition (Defence), Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal (SR No. 15370 of 1981)
Judge
Reported inAIR1981AP371
ActsLimitation Act, 1963 - Sections 12 and 12(2)
AppellantSyed QamanuddIn Ahmed
RespondentThe Special Deputy Collector, Land Acquisition (Defence), Hyderabad and anr.
Appellant AdvocateV.B. Sahgal, Adv.
Respondent AdvocateS.R. Ashok, Amicus Curiae
Excerpt:
.....or order appealed from or sought to be revised or reviewed shall be excluded. the contention on behalf of the appellant is that, as, under section 12(2) the day on which the judgment complained of was pronounced has also to be excluded, it was open to the appellant to file a copy application on the next day and as the next day and the succeeding days happened to be holidays, the earliest point of time at which he could make a copy application was on 17-1-1981 and, hence, the entire period between 1-1-1981 and 16-1-1981 must be excluded......sankranti vacation, which commenced on 1-1-1981 and lasted till 16-1-1981. the appellant filed a copy application on 17-1-1981 and filed the appeal on 26-2-1981. it is contended on behalf of the appellant that the period from 1-1-1981 to 16-1-1981 when the high court was closed for sankranti vacation has to be excluded in computing the period of limitation, in which case the appeal will be in time. it is conceded that the appeal would be in time if the above period is excluded. but the objection raised by the office is that this period cannot be excluded under section 12 of the limitation act.3. we requested mr. s. r. ashok to act as amicus curiae in this case and after hearing the submissions made by mr. sahgal, advocate for the appellant, and mr. ashok, we are satisfied that the.....
Judgment:

Alladi Kuppuswami, C.J.

1. This writ appeal is sought to be preferred against the judgment of Jeevan Reddy, J., dated 31-12-1980. An objection was taken by the office that the appeal is barred by limitation, as there has been a delay of 12 days in filing the writ appeal. Sri V. B. Sahgal, learned counsel for the appellant, however, contendsthat there has been no delay in preferring the appeal.

2. The judgment was delivered on 31-12-1980, the last day before the Sankranti vacation, which commenced on 1-1-1981 and lasted till 16-1-1981. The appellant filed a copy application on 17-1-1981 and filed the appeal on 26-2-1981. It is contended on behalf of the appellant that the period from 1-1-1981 to 16-1-1981 when the High Court was closed for Sankranti vacation has to be excluded in computing the period of limitation, in which case the appeal will be in time. It is conceded that the appeal would be in time if the above period is excluded. But the objection raised by the office is that this period cannot be excluded under Section 12 of the Limitation Act.

3. We requested Mr. S. R. Ashok to act as amicus curiae in this case and after hearing the submissions made by Mr. Sahgal, Advocate for the appellant, and Mr. Ashok, we are satisfied that the objection raised by the office that the appeal is barred by time is justified,

4. Under Section 12(2) of the Limitation Act, in computing the period of limitation for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. It has been held by the Privy Council in Jijibhoy N. Surty v. T. S. Chettyar, (AIR 1928 PC 103) that the expression 'time requisite for obtaining a copy of the decree' means time reasonably required for obtaining a copy of the decree. The contention on behalf of the appellant is that, as, under Section 12(2) the day on which the judgment complained of was pronounced has also to be excluded, it was open to the appellant to file a copy application on the next day and as the next day and the succeeding days happened to be holidays, the earliest point of time at which he could make a copy application was on 17-1-1981 and, hence, the entire period between 1-1-1981 and 16-1-1981 must be excluded. We are of the view that this contention proceeds upon a misconception of the true meaning of Section 12(2) of the Limitation Act. All that Section 12(2) says is that the time requisite for chaining a copy of the decree shall be excluded, and in the words of the PrivyCouncil, this means that the time reasonably required for obtaining a copy should be excluded. In this case, the judgment was rendered on 31-12-1980 and there was nothing preventing the appellant from applying for a copy on the very same day. If he had applied for a copy on that day, whatever time was taken for obtaining the copy of the decree would have been excluded. But the appellant did not do so. He waited until 17-1-1981 to make a copy application. In the circumstances, it cannot be said that the whole period from 1-1-1981 to 16-1-1981 was also a period requisite for obtaining the copy of the decree.

5. Reliance was placed by the learned counsel for the appellant on the decision in Saminatha Ayyar v. Venkata-subba Ayyar, ((1904) ILR 27 Mad 21). In that case, the judgment was delivered at 4.00 P. M. on the last working day before the commencement of the Christmas vacation when it was too late to apply for a copy of the judgment. The application for a copy was made on the day when the Court reopened. It was held that the appellant was entitled to deduct the period during which the Court was closed and such period, in the circumstances of the case, must be taken to be part of the time requisite for obtaining a copy of the judgment. But the case which is practically on all fours with the present case is that reported in Jaimullabdin, In re (AIR 1920 Mad 1025 (2). In that case the judgment was pronounced at an early hour on the last day preceding certain holidays and the application for a copy was made on the day when the Court reopened after the holidays. It was held that the appellant was not entitled to the deduction of the holidays. It was observed that in the case with which their Lordships were concerned, the application for copy might have been presented on the day on which the judgment was delivered, which fact distinguished the case from that reported in Saminatha Ayyar v. Venkatasubba Ayyar, ( (1904) ILR 27 Mad 21). It is clear from this judgment that where there is time for applying for a copy on the day when the judgment was delivered, it is not open to the appellant to contend that the time during which the Court was closed thereafter should be excluded.

6. Reliance was also placed on Lalta Prasad v. Shyammohan : AIR1961MP244 . In that case the judgment was pronounced on the 25th January and 26th and 27th January were public holidays and copy application was made thereafter after the reopening of the Court. It was held that the two days should be excluded in computing the period of limitation. It was observed that during those two days it was impossible to obtain a copy or even to apply for it. It does not, however, appear from the judgment when the judgment was pronounced on 25th January and whether it was possible for the appellant to apply for a copy even on that day. If the decision in this case is to be read as covering even a case where the judgment was delivered at an early hour of the day and the party could have applied for a copy after the judgment, even then the subsequent holidays should be excluded, we find it difficult to follow this judgment in view of the binding decision of the Madras High Court in Jaimullabdin, In re (AIR 1920 Mad 1025 (2)).

7. Shri Ashok drew our attention to the decision of the Supreme Court in Lala Bal Mukand v. Lajwanti : AIR1975SC1089 and submitted that in case of doubt, the provisions of the Limitation Act should be so construed as to favour the litigant. We do not think that the present case falls within the category of cases referred to in the Supreme Court decision. In the case before the Supreme Court, the drawing up of the decree was conditional upon the payment of the court-fee by the plaintiffs within 30 days from the date of pronouncement of the judgment. The plaintiffs did not comply with that direction and deposited the court-fee only during the extended time which was granted without notice to the defendants. Even after that, the decree was not signed till sometime later. It was held that the appellant was entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of the signing of the decree as the time requisite for obtaining a copy of the decree, it is in those circumstances that the S. C. observed that a Court ought to avoid an interpretation upon a statute of limitation which may have a penalising effect, unless it is driven to do so bythe irresistible force of the language employed by the legislature.

8. We do not find any similarity between the judgment of the Supreme Court and the present case. We, therefore, sustain the objection of the office. It is open to the appellant to file an application for excusing the delay, as suggested by the office, on permissible grounds.

9. We are thankful to Mr. Ashok for the invaluable assistance rendered by him in this matter at our request.


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