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Sitaram S/O Ghasiram Vs. Chameli Bai W/O Bhagwati Prasad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 167 of 1959
Judge
Reported inAIR1961MP310; 1962MPLJ14
ActsLimitation Act, 1908 - Sections 12(2)
AppellantSitaram S/O Ghasiram
RespondentChameli Bai W/O Bhagwati Prasad
Appellant AdvocateP.L. Dubey, Adv.
Respondent AdvocateK.S. Agarwal, Adv.
DispositionAppeal dismissed
Cases ReferredSurty v. T. S. Chettyar
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....judge, gwalior, whereby he held the appeal to be barredby time.2. the facts material for the present appeal are that the judgment of the trial court in the present case was passed on the 30th of november, 1954; whereas the appeal was filed in the district court on 14-2-1955 i.e. after, 76 days of the judgment appealed against. an application for a copy of the judgment was made by the present appellant on the 1st of december, 1954. he was directed by the head-copyist to pay the balance of the copying charges on 3-12-1954.the appellant did not turn up on that date, but instead deposited the remaining copying charges on the 7th of december, 1954. the copy was taken delivery of by him on the 17th of january, 1955. the learned addl. district judge has held that the appellant not having.....
Judgment:

P.R. Sharma, J.

1. This appeal has been preferred by the defendant against the judgment and decree dated the 8th of April, 1959 passed in Civil Appeal No. 18 of 1955 by the Addl. District Judge, Gwalior, whereby he held the appeal to be barredby time.

2. The facts material for the present appeal are that the judgment of the trial Court in the present case was passed on the 30th of November, 1954; whereas the appeal was filed in the District Court on 14-2-1955 i.e. after, 76 days of the judgment appealed against. An application for a copy of the judgment was made by the present appellant on the 1st of December, 1954. He was directed by the head-copyist to pay the balance of the copying charges on 3-12-1954.

The appellant did not turn up on that date, but instead deposited the remaining copying charges on the 7th of December, 1954. The copy was taken delivery of by him on the 17th of January, 1955. The learned Addl. District Judge has held that the appellant not having deposited the remaining copying charges on 3-12-1954 as required by the office the period of four days from the 4th to the 7th December, 1954 could not be included in the time requisite for obtaining a copy.

When the appeal in the present case was filed, the Madhya Bharat High Court Rules were in force. According to Rule 5 in Part I Chapter VII of the said Rules an application could be made on an as -/8/- stamp for copies in the Courts subordinate to the High Court and the office was to give to the applicant a date within three days of the date of the application for the remaining copying charges to be deposited. It was in compliance with this rule that the office directed the applicant to deposit the remaining copying charges on the 3rd of December, 1954. The applicant did not show any cause in the lower appellate Court for default on his part in making payment of the remaining copying charges on the 3rd of December, 1954 as directed by the head-copyist.

3. It was held in the case of Pramath Nath Roy v. Lee, ILR 49 Cal 999 : (AIR 1922 PC 352) that no period could be regarded as 'requisite' under Section 12 (2) of the Limitation Act which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order. The word 'requisite' means something more than the word 'required'. It must be construed to mean 'properly required.' The burden is on the appellant to show that not part of the delay beyond the prescribed period is due to his default. (See--J. N Surty v. T. S. Chettyar : ILR 6 Rang 302 : (AIR 1928 PC 103)).

4. Applying the test laid down in the decisions aforesaid, with which I am in respectful agreement, it must be held that the appellant having not explained why he did not deposit the remaining copying charges for four days after the expiry of the date fixed by the office for the purpose the period of four days could not be excluded.

5. This appeal has, therefore, no force andis hereby dismissed. There shall be no order asto costs.


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