1. These applications in criminal revision arise under tho following circumstances:
The plaintiff in a suit in the Munsif's Court at Meerut applied to that Court under Section 476 of the Criminal Procedure Coda to prosecute the two defendants the learned Munsif rejected the application the plaintiff thereupon filed an appeal in the Court of the Sessions Judge of Meerut under Section 476(b) of the Criminal Procedure Code. The order of the Munsif was passed on the 21st of May, 1924. The appeal was filed in the Court of the Sessions Judge on the 24th of July, 1924. The learned Sessions Judge held that the appeal was time-barred and declined to hear it. He says : 'In a case of this nature I hold that limitation begins to run from the date of the order appealed against.
There was no need to file a copy of the final order in this matter. I, therefore, hold that the appeal is time-barred.'
Article 154 of the First Schedule of the Limitation Act applies to an appeal of this kind and under that article 30 days are allowed from the date of the sentence or order appealed from.
2. The application by the plaintiff under Section 476 of the Criminal Procedure Code was treated as a separate miscellaneous civil ease, and given a separate number and was quite distinct from the civil suit which has been decided. When the Court passed its order, according to the practice approved of by this Court, a formal order was drawn up on the printed form which is provided for such formal orders in miscellaneous cases, embodying the result of the judgment passed in the case.
3. The plaintiff before presenting his appeal in the Court of the Sessions Judge applied for and obtained a copy of this formal order and filed it along with his memorandum of appeal.
4. According to the rules of this Court an appeal filed from a miscellaneous order of this kind on the civil side, at any rate, must be accompanied by a copy of the formal order which the Courts are directed to draw up.
5. If the time taken for obtaining a copy of this formal order can be deducted under the provisions of Section 12 of the Indian Limitation Act, then admittedly the appeal was within time.
6. The question is whether the learned Judge was right in holding that in this case limitation began to run from the date of the order and that there was no necessity to file a copy of the formal order.
7. Section 12, Clause (2) of the Indian Limitation Act provides: 'The time requisite for obtaining a copy of the...order appealed from shall be excluded.'
8. I think, therefore, that the Court below should have held that the appeal was filed within time.
9. It is argued that it was unnecessary to make a final order in such a case and, therefore it was unnecessary to file a copy of such an order, if made. In the case of Mohesh Kant Choudhry v. Ram Prasad Rai (1920) 1 P.L.T. 33, it was held that in a case in which it was not necessary to prepare a decree but where one is actually prepared, the time for obtaining a copy of the decree should, under Section 12 of the Limitation Act, be excluded in computing the period of limitation for appeal. In principle I agree with that ruling. Here, under the rules, a formal order was drawn up embodying the decision of the Munsif. A copy of that formal order was promptly applied for and when obtained, an appeal was promptly lodged. I think the plaintiff was quite justified in thinking that it was necessary for him to file a certified copy of the formal order against which, in fact, he was appealing. I think therefore, that lower Court should have heard the appeal.
10. The learned Sessions Judge has gone on leave and his successor is as ignorant of the merits of the case as I am. As the record 13 here, instead of sending the case back, I propose to decide the matter myself.
11. I have heard the learned Counsel on behalf of the applicant and have examined the record and the order of the Munsif.
12. The plaintiff sued for the removal of a tin shed which it was alleged had been partly inserted into the western wall of the plaintiff's house.
13. The two defendants verified a written statement in which it was in the first place denied that the shed penetrated into the wall of the plaintiff at all and, secondly, it was stated that the wall did not belong to the plaintiff alone but was the joint property of the plaintiff and the defendants. Neither of the two defendants gave evidence in the case.
14. The suit was heard and decreed and on appeal that decree was upheld.
15. Thereafter the plaintiff applied to the Munsif for an order under Section 476, Criminal Procedure Code, to prosecute the two defendants for having falsely verified their written statement with reference to the two matters above mentioned.
16. The learned Munsif issued notice to the defendants and examined them. He also inspected the locality and he found that from external appearance it was impossible to say that the shed in any way penetrated into the wall. On removal of the plaster, however, it was found that in some places the tin penetrated into the wall for about two inches. This was only here and there. On that ground he held that nobody could say what really was the position of affairs until the plaster had-been removed as nothing was visible from, the outside.
17. On the second paint I am told that there is strong evidence to prove that the statement in the written statement that the wall was a party wall was false and must have been false to the knowledge of the defendants. It is stated that they did not produce, when called upon, the sale deed of their house, and if they had done so, this would have shown conclusively that the we3tarn boundary of their house was the plaintiff's house and that this proves conclusively that no part of that wall belonged to the defendants. This may be so but, after all the written statement is drawn up by legal practitioners on instructions received and it may be really that the mistake was made by them, and possibly the defendants were not careful enough to verify the accuracy of the statement before signing it. But the learned Munsif has found that this was, not done deliberately in order to deceive the Court. Had this been the case, I would have expected the defendants to have come into the witness-box and sworn in support of their statements. I am not prepared to hold that the Munsif was wrong in his opinion. I think that under the circumstances if the defendants have been guilty of carelessness, and I do not think it can be said that it is proved, that they have been guilty of much more, they have already been sufficiently punished by having to defend this case in three Courts. I, therefore, reject the applications.