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B. Kashi Nath and anr. Vs. Gauri Shankar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in148Ind.Cas.290
AppellantB. Kashi Nath and anr.
RespondentGauri Shankar and ors.
Cases ReferredJ.N. Surty v. T.S. Chettiar
Excerpt:
limitation act (ix of 1908), sections 5, 12(2) - application for review--copy of judgment, if necessary--applicant obtaining copy--time for obtaining copy--whether can be excluded--civil procedure code (act v of 1908), order xlv, rule 1--practice. - .....the indian limitation act, 1908, which excludes from the period of limitation for appealing from a decree the time requisite., for obtaining a copy of it, applies even when by a rule of the high court the memorandum of appeal need not be accompanied by a copy of the decree. in that case the judgment which was under appeal was passed by the high court in exercise of its original civil jurisdiction, and the rangoon. high court had made a rule that a memorandum, of appeal against a decree of the high court in exercise of its original civil jurisdiction might be presented without a certificated copy of the decree accompanying it. it was argued, therefore, that when no copy of the decree was necessary, no period should be excluded under section 12, sub-section (2) of the limitation act.....
Judgment:

1. This is an application under Clause 5 of the Limitation Act for condoning the delay of 4 days in filing art application for review of judgment.

2. The judgment was delivered by a Bench of this Court on February 12, 1932. The applicant applied for a copy of the judgment on the same date. The copy was ready on February 26, 1932 and delivery of the copy was actually taken on March 4, 1932. The period of limitation for filing an application for review of judgment would ordinarily have expired on May 11, 1932. The applicant did not make this application until May 30, 1932.

3. The first question is whether the applicant is entitled under Section 12, Sub-section (2) of the Limitation Act to exclude time requisite for obtaining a copy of the judgment in question.

4. It has been argued for the opposite party that in making an application for review of judgment there is no necessity for filing a copy of the judgment,' and therefore, the Applicant is not entitled to the benefit of Section 12 Sub-section (2), if he does unnecessarily obtain a copy of the judgment.

5. It has been held by a Full Bench of this High Court in Wajid Ali Khan v. Nawal Kishore 17 A. 213 : A.W.N. 1895, 61, that it is not necessary that an application for review of judgment, should be accompanied by a copy of the decree, order or judgment sought to be reviewed. It is therefore, definitely settled so far as this Court is concerned, that it is not necessary for the applicant to obtain a copy of the judgment for the purpose of making his application for review. The question, however, arises whether in view of the language of Section 12, Sub-section (2) of the Limitation Act, the applicant is entitled to an extension of time owing to the fact that he had obtained a copy of the judgment.

6. The applicant has strongly relied upon a ruling of their Lordships of the Privy Council in J.N. Surty v. T.S. Chettiar 109 Ind. Cas. 1 : 6 R. 302 : A.I.R. 1928 P.C. 103 : 5 O.W.N. 479 : 47 C.L.J. 510 : 26 A.L.J. 657 : 32 C.W.N. 845 : 30 Bom. L.R. 842 : 54 M.L.J. 696 : 28 L.W. 207 (P.C.), It was held by their Lordships that Section 12, Sub-section (2) of the Indian Limitation Act, 1908, which excludes from the period of limitation for appealing from a decree the time requisite., for obtaining a copy of it, applies even when by a rule of the High Court the memorandum of appeal need not be accompanied by a copy of the decree. In that case the judgment which was under appeal was passed by the High Court in exercise of its original civil jurisdiction, and the Rangoon. High Court had made a rule that a memorandum, of appeal against a decree of the High Court in exercise of its original civil jurisdiction might be presented without a certificated copy of the decree accompanying it. It was argued, therefore, that when no copy of the decree was necessary, no period should be excluded under Section 12, Sub-section (2) of the Limitation Act because no time was requisite for obtaining a copy. Their Lordships over-ruled that contention and held that although a copy was not necessary, still under Section 12, Sub-section (2) time for obtaining a copy should be excluded if in fact the applicant did obtain a copy. We think that the same principle will apply to the facts of the present case. Here we have a case of an application for review of judgment and it has been authoritatively held by a Pull Bench judgment of this Court that no copy of the judgment sought to be reviewed need be presented along with the application. But on the view taken by their Lordship of the Privy Council, we think it must be held that when the applicant did, in fact, obtain a copy of the judgment, time should be excluded under Section 12, Sub-section (2). It cannot be maintained that it was entirely useless for the applicant to obtain a copy of the judgment. Ordinarily if a Counsel were asked to draft an application for review of judgment he would ask to see a copy of the judgment. If the contention advanced by the opposite party were to prevail, then Section 12, Sub-section (2) of the Limitation Act would be entirely meaningless with reference to applications for review of judgment so far as this Province is concerned as in this Province no copy of the judgment sought to be reviewed need accompany the application for review.

7. According to the principle laid down in the ruling; of their Lordships of the Privy Council we hold that the applicant is entitled to the benefit of Section 12, Sub-section (2). This means that he was entitled to tile his application for review of judgment up till May 26, 1932.

8. Even so his application is admittedly 4 days beyond time. He has tiled an affidavit swearing that he was intending to leave for Allahabad on May 24, 1932 with the intention of tiling an application when he suddenly fell ill with a very high temperature which at times made him delirious, with the result that he was absolutely confined to bed for 3 or 4 days. He further swears that on May 26, he sent his brother-in-law to Allahabad with all the necessary papers and the latter presented himself before the Counsel on the morning of May 27, but was informed that limitation had expired on the previous day and that an application under Section 5 of the Limitation Act together with an affidavit would be necessary. Accordingly his brother-in-law returned, and informed him of the facts and again he came to Allahabad and filed an affidavit. A counter affidavit has been filed denying the allegation that he was ill. But the counter-affidavit is in vague terms, only stating that the deponent had enquired from neighbours and had come to know that the applicant was not very ill. In our opinion this vague denial cannot be held to outweigh the positive testimony of the applicant and we hold that he was ill, as stated, and this constitutes sufficient ground for us to condone the delay of 4 days.

9. We accordingly condone the delay and direct that the application be treated as filed within time.


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