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State of U.P. Vs. Maharaj NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberGovt. Appeal No. 785 of 1963
Judge
Reported inAIR1965All443; 1965CriLJ338
ActsLimitation Act, 1908 - Sections 12(2) - Schedule - Article 157
AppellantState of U.P.
RespondentMaharaj NaraIn and ors.
Advocates:Dy. Govt. Adv.
DispositionAppeal dismissed
Excerpt:
.....- exclusion of period - section 12(2) and article 157 of limitation act, 1908 - interpretation of 'time requisite' - obtaining copy of order appealed from. - - so far as the first point for determination is concerned, we find ourselves in perfect agreement with the report of the additional sessions judge that the notice of the preparation of the copy, which has been filed with the memo of appeal, was posted on 3rd, january, 1983, and not on 20th november, 1962. it is clear from a perusal of the karguzari register that this copy, which had been prepared in pursuance of an application made on 15th november 1962, was actually prepared between the dates 3rd of december, 1962, and 15th of december, 1962. the notice of the preparation of the judgment could not have been posted on 20th..........within time if 50 days could be excluded under section 12 of the indian limitation act as 'time requisite' for obtaining a copy of the order appealed against. an affidavit, however, was filed to show that the 'time requisite' for obtaining a copy of the order appealed against was in fact ten days only because a copy of the order had become ready for delivery and had been notified as such on 20th november 1962, that a forgery was committed is the register maintained by the copying department and that the date 20th november 1982, was scored out and in its place another date i.e, 3rd january 1963, was mentioned.3. the preliminary objection was opposed on the ground that the correct date on which the copy of the judgment had become ready and notified for delivery was 3rd january.....
Judgment:

S.D. Khare, J.

1. This is a Government Appeal directed against an order dated 10th November, 1962, passed by the learned Assistant Sessions Judge, Farrukhabad, acquitting all the nine respondents of the charges against them under Sections 452, 322/324/307 read with Section 149 and 147/148 J. P. C. A preliminary objection was raised that the appeal is outside 90 days' time prescribed under Article 157 of the 1st Schedule of the Indian Limitation Act.

2. This appeal was 61ed on 29th March 1963, i.e., 139 days after the date of the order appealed against. Prima facie it was not barred by time because the memorandum of appeal was accompanied with a copy of the judgment for which an application had been made on 15th November, 1962, and the copy was notified to be ready on 3rd January, 1963, i.e., 50 days after the date of the application. The appeal filed 139 days after the date of the order appealed against, was, therefore, within time if 50 days could be excluded under Section 12 of the Indian Limitation Act as 'time requisite' for obtaining a copy of the order appealed against. An affidavit, however, was filed to show that the 'time requisite' for obtaining a copy of the order appealed against was in fact ten days only because a copy of the order had become ready for delivery and had been notified as such on 20th November 1962, that a forgery was committed is the register maintained by the Copying Department and that the date 20th November 1982, was scored out and in its place another date i.e, 3rd January 1963, was mentioned.

3. The preliminary objection was opposed on the ground that the correct date on which the copy of the judgment had become ready and notified for delivery was 3rd January 1963, and not 20th November 1962, as alleged by the respondents.

4. All the affidavits filed were sent to the District Judge, Farrukhabad, for enquiry and report. The District Judge was authorised to admit such evidence as might be necessary. The District Judge got the enquiry made by an Additional Sessions Judge, in charge Copying Department, and his report shows that on 15th November, 1962, an application for copy was made by Sri M. A. Masood, counsel for the State, that the notice of its preparation was posted on 3rd January, 1963, and that the copy was issued to Sri Banwari Lal Saxena, District Government Counsel on 8th January, 1963. The learned Additional Sessions Judge did find that the date 20th November, 1962, had at first been written, under the appropriate column of the register, as the date of the posting of the notice preparation of copy, and had been scored out. He, however, arrived at the conclusion that the date 20th November must have been written under the appropriate column due to some mistake, because it appeared from the Karguzari registers of the copyists who prepared that copy that they had done the work of preparing that copy between the 3rd of December and the 15th of December, 1962.

5. It also appeared from the report of the Additional Sessions Judge, who made the enquiry, that three applications for copies of the order appealed against were made by or on behalf of the District Government Counsel Farrukhabad, between the dates 15th November, 1962, and 21st December, 1962, and copies were obtained in pursuance of those applications as will appear from the following statement:--

S. No.Date of application.Application made by.Copy notified ready.Copy obtained by.Date when obtained.1.15-11-1962.Sri M. A. Masood, Panel Lawyer.3-1-1063.Sri Banwari Lal Saxena D.G.C.8-1-1963.2.3-12-1962.Sri Jwala Pd. Sri-vastava, Ad. G.C.20-12-1962.Sri Jwala Pd. Sri-vasta Addl. C. C.20-12-1962.3.21-12-1962.Sri Banwari Lal Saxena, D.G.C.21-12-1962.Sri Banwari Lal Saxena D.G.C.21-12-1962.

6. After the receipt of the report an additional affidavit was filed on behalf of the respondents and it was urged that even on the basis of the facts revealed from the report and the affidavit the time requisite for obtaining a copy of the order appealed against was 17 days only and, therefore, the Government Appeal filed 139 days after the date on which the respondents were acquitted is barred by limitation. No counter-affidavit was filed on behalf of the Government.

7. The points for consideration, therefore, are:

(a) When was copy of the judgment for which an application had been made on 15th November, 1962, notified to be ready?

(b) In case the notice of its preparation was posted on 3rd January, 1963, whether it is open to the Court to take into consideration the result of the subsequent applications to determine the 'time requisite' for obtaining a copy under Section 12 of the Indian Limitation Act?

(c) If the answer to the second question is in the affirmative whether the Government Appeal is within time?

8. We have heard learned counsel for the parties at some length and also examined the record. So far as the first point for determination is concerned, we find ourselves in perfect agreement with the report of the Additional Sessions Judge that the notice of the preparation of the copy, which has been filed with the memo of Appeal, was posted on 3rd, January, 1983, and not on 20th November, 1962. It is clear from a perusal of the Karguzari register that this copy, which had been prepared in pursuance of an application made on 15th November 1962, was actually prepared between the dates 3rd of December, 1962, and 15th of December, 1962. The notice of the preparation of the judgment could not have been posted on 20th November, 1962, for the simple reason that the copy itself became ready on or after 15th of December, 1962. We, therefore hold that copy of the judgment, which has been filed along with the memorandum of appeal, was not even completely prepared till 15th of December, 1982, and that the notice of the preparation of the copy was posted on 3rd January, 1963, and not on 20th November, 1962.

9. The second point raised on behalf of the respondents involves the interpretation of Sub-section (2) of Section 12 of the Indian Limitation Act which reads as follows:

'12(2). In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the date 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 reviewed, shall be excluded.'

10. A perusal of the above provision of law clearly shows that the period which can be excluded under Section 12(2) of the Indian Limitation Act is 'the time requisite for obtaining a copy of the......order appealed from and also the day or date on which the judgment was pronounced. In other words, it will mean that the 'time requisite' for obtaining a copy plus the day or date on which the order appealed against was pronounced are to be excluded in computing the period of limitation prescribed for an appeal.

11. There is nothing in Sub-section (2) of Section 12 of the Indian Limitation Act to show that the 'time requisite' for obtaining a copy of the order appealed against shall be excluded only in cases where a copy is required to be filed along with the memorandum of appeal under any law, such as Civil Procedure Code, Criminal Procedure Code or Rules of the Court. It is, therefore, clear that, in computing the period of limitation prescribed for an appeal, the time requisite for obtaining a copy of the order appealed from has got to be excluded regardless of the consideration whether or not any such copy was under any law required to be filed along with the memorandum of appeal. The judicial pronouncements are also to the same effect. The matter was considered in great detail in the case of Jijibhoy N. Surty v. T. S Chettyar Firm, AIR 1928 P. C. 103 and the Privy Council approved the view taken by the Bombay, Punjab, Calcutta and Allahabad High Courts and held that, in computing the period of limitation prescribed for an appeal, the time requisite for obtaining a copy of the order appealed from has to be excluded regardless of the consideration whether or not under any other law or rules the copy of the order appealed from is required to be filed along with the memorandum of appeal.

The same view was taken in the Full Bench case of Sehat Ali Khan v, Abdul Qavi Khan, : AIR1956All273 . Rule 7, Chap. III of the Rules of Court in force in 1951 provided that, in the case of appeals under the Letters Patent, the memorandum of appeal need not be accompanied by a copy of the judgment or decree appealed from. It was held in the case of : AIR1956All273 (Supra) by the majority of the Judges constituting the Full Bench (Dayal and Agarwala JJ. dissenting) that the provisions of Sub-section (2) of Section 12 of the Indian Limitation Act applied in computing the period of limitation for Letters Patent or Special Appeals, as they are now called, and the time requisite for obtaining copies of the judgment and decree appealed from is to be excluded in computing the period of limitation fixed by the rules of the High Court. 12. The term 'time requisite' for obtaining a copy used in Sub-section (2) of Section 12 of the Indian Limitation Act came up for consideration in the following two cases which went up to the Privy Council:

(1) Pramatha Nath Roy v. William Arthur Lee, AIR 1922 P C 352, and

(2) AIR 1928 P. C. 103.

It was held in the case of Pramatha Nath Roy, AIR 1922 P C 352 that no period can be regarded as requisite under the Indian Limitation Act which need not have elapsed, if the appellant had taken reasonable and proper steps to obtain a copy. It was also held that there is no warrant for the proposition that, in determining what period has to be deducted in any case, the time actually consumed in obtaining ap copy must be deducted.

13. The same view was reiterated in the case of J. N. Surty AIR 1928 PC 103 (Supra) wherein it was held that the word 'requisite' is a strong word, and it may be regarded as meaning something more than the word 'required'. It means 'properly required' and it throws upon the pleader or counsel for the appellant the necessity of snowing that no period of the delay beyond the prescribed period is due to his default.

14. It does not mean that the appellant must apply for a copy as soon as the order sought to be appealed from was passed. He may apply for a copy on any date within the time prescribed for filing the appeal. However, the period which can be excluded under Sub-section (2) of Section 12 of the Indian Limitation Act must be only the period beginning from the date of the first application for copy and the date on which the first copy was notified to be ready. The appellant might have taken a few days more in actually obtaining the copy from the Copying Department but no period after the date of the notice that the copy was ready can be excluded under Sub-section (2) of Section 12 of the Indian Limitation Act for the simple reason that the delay was due to the default of the appellant himself.

15. In the present case three applications for obtaining copies of the judgment were made on behalf of the District Government Counsel Farrukhabad, within the prescribed period of limitation. A copy was notified to be ready in pursuance of the first application on 3rd January, 1963, but the first copy of the judgment became available to the District Government Counsel as a result of the second application for copy on the 20th December, 1962. The main question that arises for consideration is whether, after a copy had been received by the District Government Counsel on behalf of the Government on 20th December, 1962, any period beyond that date could be included within the term 'time requisite' for obtaining a copy under Sub-section (2) of Section 12 of the Indian Limitation Act. The argument on behalf of the learned Deputy Government Advocate is that the time requisite for obtaining a copy in pursuance of the first application for copy must be deemed to be the entire period between 15th November, 1962, and 3rd January, 1963, for the simple reason that the application for a copy was made on 15th November and that copy of the judgment was notified to be ready on 3rd January, 1963. He has further contended that what actually happened in pursuance of subsequent applications made for copies of the judgment should be disregarded because copy of the judgment filed along with the memorandum of appeal is the copy which had been applied for on 15th November 1962, and had been notified to be ready on 3rd January, 1963.

16. Where the only material before the appellate court consists of the endorsements on copy of the judgment filed along with the memorandum of appeal, the time that can be excluded under Sub-section (2) of Section 12 of the Indian Limitation Act will obviously be the period between the date of the application for copy and the date on which the copy was notified to be ready. However, it may be (as in the present case) that a certified copy o the order appealed against became available to the appellant as a result of another application for copy in much lesser time and much earlier than the copy filed with the memorandum of appeal. In such cases, a question may arise, whether the additional facts pertaining to other applications for copies may also be looked into or whether only the facts relating to the copy which has been filed along with the memorandum of appeal need to be examined.

17. A plain reading of Sub-section (2) of Section 12 of the Indian Limitation Act makes it clear that the 'time requisite' for obtaining a copy has to be excluded. The power of the court to examine the entire evidence available for the determination of the question is nowhere curtailed. It, therefore, follows that the court of appeal has to scrutinise the entire material before it and to determine what was, in fact, the 'time requisite' for obtaining a copy of the order, decree or judgment appealed from.

18. The benefit of Sub-section (2) of Section 12 of the Indian Limitation Act has to be given regardless of the fact whether or not a copy of the order, judgment or decree appealed from was required to be filed along with the memorandum of appeal under any other law or rules for the time being in force. What follows is that the 'time requisite' For obtaining a copy of the order appealed against will be the same regardless of the consideration whether or not a copy of the order appealed from is required to be filed along with the memorandum of appeal. Endorsement existing on the copy filed with the memo of appeal could not, therefore, be conclusive in determining the question of the time requisite for obtaining a copy. On the basis of any given set of facts, the 'time requisite' for obtaining a copy should be the same whether or not any certified copy is required to be filed along with the memorandum of appeal.

19. In our opinion, keeping all these aspects in view, the most reasonable interpretation which can be placed on the term 'time requisite' for obtaining a copy, as used in Sub-section (2) of Section 12 of the Indian Limitation Act, will, in cases where, more than one application has been made within the period of limitation for obtaining copies, be the period between the date of the first application for copy and the date on which the first copy of the order, judgment or decree appealed from was obtained. The appellant cannot take credit for any period prior to the date of his application for copy nor for any period after a copy of the order, judgment or decree had been obtained. The appellant can in no circumstances say that the 'time requisite' for obtaining a copy was even beyond the period on which the first copy of the order appealed from was actually obtained by him. In this view of the matter, the only period which can be excluded in the present case under Sub-section (2) of Section 12 of the Indian Limitation Act as 'time requisite' for obtaining a copy of the order appealed from is the period between 15th of November, 1962, (the date of the application for copy) and the 20th of December 1962, (the date on which the first copy was received). The 'time requisite' for obtaining a copy of the order appealed from was, therefore, 36 days only.

20. Similar matters came up for consideration before various High Courts in India. The view of the Madras High Court expressed in the Full Bench case of Thirumula Reddi v. C.K. Anayanareddi, AIR 1934 Mad 306 and accepted by a single Judge of this Court in the case of State v. Kashi Prasad, : AIR1950All486 was that the 'time requisite1 for the preparation of a copy is to be with respect to the time required for the preparation of the copy which accompanies the memorandum of appeal and not for the preparation of any other copy. Diametrically opposite view was expressed in the Division Bench case o Methela v, Sher Mohammad, AIR 1935 Lah 682. The Full Bench case of AIR 1934 Mad 306 was dissented from and it was held that the words 'time requisite' mean simply the time required by the appellant to obtain a copy of the decree assuming that he acted with reasonable promptitude and diligence, and the time requisite for obtaining a copy is the shortest time during which a copy could have been obtained by the appellant and it has nothing to do with the amount of time spent by him in obtaining the copy which he chooses to file with the memorandum of appeal.

21. The view expressed in the case of AIR 1935 Lah 682 (supra) is very much in consonance with the plain reading of Sub-section(2) of Section 12 of the Indian Limitation Act and our interpretation of that provision of law.

22. Sub-section (2) of Section 12 of the Indian Limitation Act speaks only of the 'time requisite' for obtaining a copy. The words 'a copy' should refer to the first copy obtained and not to any copy which the appellant might have filed along with the memorandum of appeal.

23. Sub-section (2) o Section 12 of the Indian Limitation Act is of general application and will apply even where no copy of the order, judgment or decree appealed from is required to be filed along with the memorandum of appeal. The fact as to which copy has been filed along with the memorandum of appeal, can therefore, be of very little consequence in interpreting the provisions of Sub-section (2) of Section 12 of the Indian Limitation Act. It is true that in most of the cases the endorsements made on the copy of the order, judgment or decree appealed from might be the only evidence of 'time requisite' for obtaining a copy. That, however, will not exclude other material evidence on the point brought on record which might indicate that in any particular case the time requisite for obtaining a copy was in fact either more or less than the endorsements on the copy filed along with the memorandum of appeal could reveal.

24. The appellant cannot by his own act enlarge the period of limitation by choosing to file along with the memorandum of appeal a copy which suits him best. By his act he can only furnish a proof of the time requisite for obtaining a copy of the order, judgment or decree appealed from. It will, however, be open to the Court of appeal to rely on other evidence also where it is brought to its notice that the 'time requisite' for obtaining a copy of the order, judgment or decree appealed from was either more or less than the period revealed from the endorsements made on the copy filed along with the memorandum of appeal.

25. Even in cases where a copy of the order appealed against is required to be filed along with the memorandum of appeal, we see no reason why in determining the question of 'time requisite' for obtaining a copy, the only evidence which need be looked into should be that furnished by the copy filed along with the memorandum of appeal. There can be no reason why other material evidence should be excluded.

26. For the reasons mentioned above we respectfully agree with the view expressed in the case of AIR 1935 Lah 682, and are respectfully unable to agree with the view expressed in the cases of AIR 1934 Mad 306 and : AIR1950All486 .

27. The result is that we find that the Government Appeal is barred by time. There is no application before us for condoning the delay in filing the-appeal.

28. The preliminary objection succeeds. The Government Appeal is dismissed as barred by time. The bail bonds are discharged.


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