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Banchanidhi Sahoo Vs. Nilamani and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 562 of 1982
Judge
Reported inAIR1985Ori247
ActsLimitation Act, 1963 - Sections 12
AppellantBanchanidhi Sahoo
RespondentNilamani and ors.
Advocates:B. Sahoo, Adv.
DispositionRevision allowed
Cases ReferredJijibhoy N. Surty v. T. S. Chettyar Firm
Excerpt:
.....for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of..........account of summer vacation since the judgment had been delivered on the last working day. the said learned judge held that on the reopening date on which day the application for copy of the judgment was made, the appeal would have been in time if presented under section 4 of the lim. act, but since the right of appeal thus subsisted on the day on which the application for copy was made, the applicant would be entitled to the period during which the court remained closed during summer vacation.in the case of munshi mahton v. lachaman lal, air 1929 pat 615 a division bench of the patna high court held : --'....it is clear that if the judgment in the case is delivered on the day previous to the closing of the court the appellant is entitled to exclude the period during which the court was.....
Judgment:
ORDER

G.B. Pattnaik, J.

1. This Civil Revision is directed against the order of the District Judge dt. 12-4-1982 by which order the learned District Judge came to hold that the Miscellaneous Appeal No. 60 of 1981 filed before him was barred by limitation.

2. Against the order of the Munsif, Puri, dt. 16-5-1981, in Miscellaneous Case No. 271 of 1980, the petitioner filed a miscellaneous appeal before the District Judge on 21-7-1981. According to the petitioner's case, the learned Munsif delivered the order in the miscellaneous case during the last hours of 16th of May, 1981 which was the last working day of the Court before Summer Vacation. The Court remained closed from 17-5-1981 to 21-6-1981 and reopened on 22-6-1981. The petitioner filed an application for certified copy of the impugned order on the reopening day, i.e. 22-6-1981 and the copy was ready on 1-7-1981, The copy was delivered to the petitioner on 2- 7-1981 and the petitioner filed the appeal on 21-7-1981.

3. The short question for consideration is whether the vacation period intervening between the dates of the impugned order and the copy application can be excluded as timerequisite within the ambit of Section 12 of the lim. Act or not. The learned District Judge relying on the decision of the Rajasthan High Court in the case of Nanusam v. Sitaram, AIR 1972 Raj 36 and the decision of the Delhi High Court in the case of Bansi Dhar v. Firm Bajrang Lal Mahabir Pershad AIR 1976 Del 107, has come to hold that the said period cannot be excluded.

4. The learned counsel for the petitioner contends that the interpretation given by the Delhi High Court and relied upon by the learned District Judge works out undue hardship and since it is not possible to apply for certified copy during the vacation, a person, however vigilant he may be, would be deprived of a right of appeal in every case when a judgment is delivered on the last day before the long vacation particularly when such judgment is delivered during the last working hour.

5. The two decisions relied upon by the learned District Judge proceed on the basis that Section 12 and Section 4 of the Lim. Act should be strictly construed and on such strict construction there is no scope for engrafting any exception to the rule on the ground of hardship. There is no dispute that on a literal construction of Section 12 of the Lim. Act, the period for which the Court remains closed cannot be excluded as the time requisite for obtaining copy of the judgment or decree. But the matter should be considered from a bigger principle and it is this that no litigant can be deprived of a right conferred on him for no fault of his. A right of appeal is substantive right. A person against whom a judgment is delivered has a right to challenge the same in higher forum but if the Court delivers the judgment on the last working day during the last working hour and then remains closed thereafter making it impossible for the aggrieved party to apply for a certified copy of the impugned order during the vacation and the court reopens after the expiry of the period of limitation provided for appeal, then in such a case, the so-called right of appeal becomes illusory and the party would be deprived of such valuable right. In my view, the provision should be so construed that a substantive right will not be taken away. There is no opposition in this case to the assertion made by the petitioner that the impugned order was delivered on the last working day during the last working hour and it is also not disputed that during the long vacation whenthe Court re(sic) there is no provision for applying for or obtaining certified copy of the order in civil cases. In such contingency; in my view, it would be in the ends of justice to construe Section 12 even at the risk of causing violence to the language used in the section and a beneficial construction should be adopted rather than a literal construction, which has been given by the Rajasthan and Delhi High Courts. In this connection, it would be worthwhile to notice some of the authorities which have tried to construe the provision of Section 12 of the Limitation Act in the manner in which I have indicated in this order.

6. In one of the earliest cases, in the case of Kashibai v. Kannoo, AIR 1915 Nag 117, a learned single Judge of the Nagpur High Court distinguished a Madras decision in the case of Venkata Row v. Venkatachella Chetty, (1905) ILR 28 Mad 452 on the ground that in the Madras case, the judgment was not delivered on the last day before the vacation and held an appeal to be within time though filed beyond the period of limitation by excluding the period when the court remained closed on account of Summer Vacation since the judgment had been delivered on the last working day. The said learned Judge held that on the reopening date on which day the application for copy of the judgment was made, the appeal would have been in time if presented under Section 4 of the Lim. Act, but since the right of appeal thus subsisted on the day on which the application for copy was made, the applicant would be entitled to the period during which the Court remained closed during Summer Vacation.

In the case of Munshi Mahton v. Lachaman Lal, AIR 1929 Pat 615 a Division Bench of the Patna High Court held : --

'....It is clear that if the judgment in the case is delivered on the day previous to the closing of the court the appellant is entitled to exclude the period during which the Court was closed in order to compute the period of limitation for the appeal against that judgment.....'

In another decision of the said High Court in the case of Pikhessar Nath v. Janakdeo Nath, AIR 1934 Pat 4, a learned single Judge of the Patna High Court held that the appellant was entitled to exclude the period spent for obtaining copies and the period of vacation and that the appeal was in time. In this case, the judgment had been delivered 6n 28th of Sep. and the court remained closed for annual vacation from 29th of Sep. until Ist of Nov.Application for copy was made on 19th of Nov. and received on 29th of Nov. and the appeal was filed on 8th of Feb. The learned Judge held that the entire period for which the court was closed on account of vacation, and the period from 19th of Nov. till 29th of Nov. should be excluded in computing the period of limitation.

In the case of Lalta Prasad v. Shyammohan Laxminarayan, AIR 1961 Madh Pra 244, a learned single Judge of the Madhya Pradesh High Court interpreted the word 'requisite' in Section 12 to mean, the time properly and reasonably required. Thus where a judgment was pronounced on such a date that the day or the days following it are holidays during which the appellant cannot apply for a copy of the judgment then in computing the period of limitation prescribed for appeal, such holidays should be excluded. In this case, the learned Judge referred to the decision of the Privy Council in the case of Jijibhoy N. Surty v. T. S. Chettyar Firm, AIR 1928 PC 103 and relied on the earlier Patna decision, referred to supra.

I am in entire agreement with the view taken by the High courts of Nagpur, Patna and Madhya Pradesh, referred to above, and in respectful disagreement with the view taken by the Rajasthan and Delhi High Courts on which the learned District Judge relied. I am, therefore, of the view that the appeal before the District Judge must be held to be in time.

7. In the result, therefore, the judgment of the learned District Judge dt. 12-4-1982 is set aside and the appeal is remanded back to the learned District Judge to be disposed of on merits. This revision is accordingly allowed, but there would be no order for costs.


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