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National Tobacco Co. Employees' Union, Jullundur Vs. Manohar Singh, Presiding Officer, Labour Court Jullunder and Anr. (20.05.1968 - PHHC) - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 1678 in Letter Patent Appeal 243 of 1968
Judge
Reported inAIR1969P& H76
ActsLimitation Act, 1963 - Sections 5 and 12
AppellantNational Tobacco Co. Employees' Union, Jullundur
RespondentManohar Singh, Presiding Officer, Labour Court Jullunder and Anr.
Appellant Advocate U.S. Sahni, Adv.
Respondent Advocate Bhagirath Dass and; S.K. Hiraji, Advs.
Cases ReferredKrishnasami Panikondar v. Ramasami Chettiar.
Excerpt:
.....who applying for a copy of a decree of judgment failed to inform himself of the time when such copy would be ready and thereby did not obtain it when it was ready to be delivered to him. sahni has placed very strong reliance on a single bench decision of coldstream, j. 1962-64 pun lr 276, exceptional circumstances existed and time was granted under section 5. the memorandum of appeal in that case had been filed with an uncertified copy of the judgment on 28th of october, 1959 ,and the certified copies when they were delivered to the appellants on 2nd of february, 1960, were immediately filed in court, an urgent application had been given for supply of copies of the judgment and decree on 18th of september 1959, the certified copy of the decree was not ready for delivery till 12 days..........the amount of the estimate has been made, the time occupied by the office in preparing the copy or copies ready to be delivered to the party who has applied for them....if the party who applying for a copy of a decree of judgment failed to inform himself of the time when such copy would be ready and thereby did not obtain it when it was ready to be delivered to him. it appears them that the period of such delay could not be allowed in computing the time which was requisite for obtaining the copy.'6. mr. sahni has placed very strong reliance on a single bench decision of coldstream, j., in labhu ram v. bansi dhar, air 1936 lah, 120. in which it was said that:- 'when there has been no mistake of cousel no negligence , nor inaction, not want of bona fides imputable to the applicant applying.....
Judgment:

Shamsher Bahadur, J.

1. Two Letters Patent Appeals, L.P. As. Nos. 243 and 244 of 1968 were filed by the Workmen of Messrs. National Tobacco Company of India (hereinafter called the Company) on 15th of April, 1968, both directed against the judgment of Pandit, J., of 27th February, 1968.* These appeals were admitted by the Motion Bench on 25th April, 1968 . In both appeals applications have been made for extension of time under Section 5 of the Limitation Act. Notice of these applications was directed to be sent to Mr. Bhagirath Dass, Counsel for the respondent-company for 1st May, 1968. When the applications under Section 5 came for hearing on 1st of May , 1968 , before this Bench, Mr. Bhagirath Dass declined to accept service and consequently fresh notices were issued to the company itself and now Mr. Bhagirath Dass has appeared to oppose these application.

2. The date of the judgment appealed from is 27th of February, 1968. Two applications for copies by; the applicants were made on 19th of March, 1968. These were ready for delivery on 25th March, 1968. After deducting the requisite time for copies the appeals should have been filed on 4th April, 1968 As mentioned before, the letters patent appeals were, however, filed on 15th of April , 1968. Eleven days after the limitation had expired. According to the affidavits filed with the appeal and the additional affidavit of 20-5-1968 by the learned Counsel for the applications Mr. Sahni the certified copies of the judgment of Pandit, J., were applied for on 19th March, 1968, admittedly within the period of limitation . It is stayed that the clerk of Mr. Sahni, now no longer in his employment, went to the copying Department 'near about 26th March , 1968' to make enquiries. One Shri Tharia Ram, of the coping Branch had gone on leave and Mr. Sahni was informed by his substitute that the record of the case had not been received from the Record Room and that 'it would take some time for the certified copy to be ready'.

Thereafter, Mr. Sahni sent his clerk a number of times to the Copying Department and each time he was told by the person working at the seat of Shri Tharia Ram that 'the copy was not yet ready'. It was on 8th of April , 1968, according to the affidavit filed with the appeal , that a formal notice from the superintendent, Copying Branch, was affixed ion the Bar Association Library about these copies. Presumably in this notice the applications Counsel was called upon a make the payment of balance of the copying fee. Mr. Sahni states that he was taken aback when he read this notice on 8th of April, 1968 , and immediately went to the Copying Branch where the date of the preparation of the copy had been put as 25th March, 1968, in the certified copies . According to the counsel, he told the Superintendent of the Copying Branch that he had been informed by the substitute of Shri Tharia Ram that the copies were not ready on the date when they purport to have been ready for delivery.

3. According to the first affidavit of Mr. Sahni filed with the appeal, he sent a telegram to his clients on the morning of 9th of April 1968, to this effect:-

'Reach immediately for filing appeal'. The telegram having been received late in the evening of 9th April, 1968, Shri Arora, Secretary of the applicant-Union, came to see Mr. Sahni on 9th April , 1968, when the Court had closed for five days, and it is correct according to the High Court Calendar that the Court was closed between 10th and 14th of April, 1968, both days inclusive.

4. Two questions arise for determination: whether, in the first place, the period between 19th March and 9th April, 1968, can be regarded as ' the time requisite for obtaining a copy of the judgment on which the decree or order is founded ' under sub-section (3) of section 1w2 of both the old and the new Limitation Acts. An secondly, whether the applicant has been able to establish sufficient cause under Section 5 of the Limitation Act to justify extension of time under this provision.

5. So far as the first point is concerned, the principle was settled by the Privacy Council in Jijibhoy N. Surty v. T. S. Chettyar Firm. AIR 1928 PC 103. That 'the word 'requisite' is a strong word, 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 showing that no part of the delay beyond th prescribed period is due to his default'. That the period between 19th and 25th March, 1968, was the time requisite for obtaining the copies is clearly beyond dispute. On this computation the appeals should have been filed on 4th of April , 1968. The burden which is thrown on the applicants'. Counsel to show that no part of the delay beyond the permissible period is due to his default has not been discharged. It is vaguely suggested that the clerk of the Counsel --- an assertion which has not been established--- had visited the coping Branch on or about 26th March, 1968 to make enquiries about th copies . The copies, as is shown by the endorsement, were ready for delivery on 25th of March. 1968 In deed , there is intrinsic evidence to show that the date has been correctly recorded in the certified copies. Mr. Bhagirath Dass was able to show that he had applied for copies in the earlier part of March and had actually obtained them before the applicants had applied for their copies on 19th March, 1968.

The opening party was furnished with cyclostyled copy of the judgment and there is no reason why ;the cyclostyled copies which are prepared by the office could not have been made readily available for delivery to the applicants on 25-3-1968. Mr. Bhagirath Dass,. The counsel for the respondent, has invited out attention to an old decision of the Allahabad High Court delivered by a Full Bench presided over by Chief Justice Sir John Edge in Bechi v. Ahsun-Ullah -Khan (1890) ILR 12 All 461 (FB) . It was pointed out by the Chief Justice that 'a court in computing under section 12 of the Indian Limitation Act, 1877, the time requisite for obtaining a copy of a decree or of a judgment has n discretion, and is confined to ascertain for the purposes of such computation the time occupied by the office, after application made, in preparing the estimate and, after payment of the amount of the estimate has been made, the time occupied by the office in preparing the copy or copies ready to be delivered to the party who has applied for them....If the party who applying for a copy of a decree of judgment failed to inform himself of the time when such copy would be ready and thereby did not obtain it when it was ready to be delivered to him. It appears them that the period of such delay could not be allowed in computing the time which was requisite for obtaining the copy.'

6. Mr. Sahni has placed very strong reliance on a single Bench decision of Coldstream, J., in Labhu Ram v. Bansi Dhar, Air 1936 Lah, 120. In which it was said that:-

'When there has been no mistake of Cousel no negligence , nor inaction, not want of bona fides imputable to the applicant applying for the copies of a judgment and decree , but the delay in giving copies is due to the slipshod and negligent procedure of the coping department the time which the department itself notes as having elapsed between the application and the completion of the copy is to be regarded as the 'time requisite' within the meaning of Sec 12.(2).'

None of the conditions mentioned by Coldstream. J., has been fulfilled in this case. In the first place, th Counsel has not been able to absolve himself or his not been able to absolve himself or his clerk from the charge of negligence or inaction. It must be taken as correct that the copy was ready for delivery on 25th March , 1968, and the vague allegation that the counsel's clerk visited the Copying Department about the 26th of March, 1968, and was told that the copy was not ready is the statement which can hardly be believed. The clerk of the counsel has not given an affidavit for he has left the employment of Mr. Sahni . The affidavit of the Counsel himself is vague on the point. Nor is it shown that the delay in getting copies was due to slipshod or negligent procedure of the copying department. We have seen the records of the Copying Department and find that the copies were actually ready for delivery on 25th of March , 1968 , as the endorsement purports to convey. As in Labhu Ram's case. AIR 1936 Lah 120 we do not find any endorsement by the office itself to show that any unexplained delay had occurred as a result of its procedure.

7. Regarding the sufficiency of cause, it has to be emphasised that the defaulter has to explain each day's delay. Judged by this text , it has to be seen whether the delay which occurred between 4th to 9th of April, 1964. Has been sufficiently explained. No attempt has been made to prove that a telegram was despatched by the counsel on learning of 8th of April 1968. That the certified copies were ready for delivery Apart from a mere assertion vaguely made, it has not been established that enquiries in fact has been made , it has not been established that enquiries in fact had been made between 26th March and 8th April , 1968. The probabilities are against this assertion because the copies are shown to have been ready for delivery on 25th of March 1968. The probabilities are against the assertion because the copies are n 25th of March, 1968. There is no reason why the office should have reported to the clerk of the Counsel, whose affidavit has not been filed, that the copies could not be furnished when in fact they are stated to have been ready for delivery. True, there are no rules on the subject but according to the prevailing practice, it devolved on the counsel or his clerk or the litigant to keep on making enquiries about the copies after the 26th of March, 1968. No satisfactory reason against has been adduced why; the delay between 4th and 9th of April, 1968 should be excused.

8. It has been contended by Mr. Sahni on basis of a decision given by me in Circuit Bench at Delhi in Daya Chand Sham Lal v. Mohd. Amil, 1962-64 Plun LR 276, that the enquiry made by his clerk on or about the 26th of Marhc, 1968, entitled him to an extension of time under Section 5 of the Limitation Act for the delay which occurred between 4th and 9th of April 1968. In Daya Chand Sham Lal's case. 1962-64 Pun LR 276, exceptional circumstances existed and time was granted under Section 5. The memorandum of appeal in that case had been filed with an uncertified copy of the judgment on 28th of October, 1959 , and the certified copies when they were delivered to the appellants on 2nd of February, 1960, were immediately filed in Court, An urgent application had been given for supply of copies of the judgment and decree on 18th of September 1959, The certified copy of the decree was not ready for delivery till 12 days thereafter on 28th of December 1959. The appeal should have been filed after reckoning the requisite time for obtaining the copies on 27th of January, 1960.

I said in that case though it was true that the appellant had not established that he made any further enquiries about the certified copies from the Copying Department . this negligence on his part 'pales into insignificance as compared to the appalling delay which has been occasioned in the preparation of the certified copies by; these copying Department ., While the judgment of the Court was delivered on 17th of September, 1959, the copies were not ready for delivery by the Copying Department till th 28th of December , 1959, I said in that case that:-

'It would be placing an intolerable burden on the litigants to except them to make day-to-day enquries for certified copies from the Copying Department for such a protracted period.'

It is worthy of note that after this judgment, coping rules have been framed by the Delhi High Court to remedy this defect. No such plea, in my opinion, can be raised in the present case where the allegation made by the appellant Counsel that his clerk had made enquiries from the office has not been established In fact , the copy was ready when the enquiry is said to have been made.

9. It is indisputable that the Court in exercising it jurisdiction in extending time under Section 5 for sufficient cause has to require distinct proof from the party on whom the burden lies. In the words of Sir Lawrence Jenkins, speaking for the Board in the privy Council decision of Krishnasami Panikondar v. Ramasami Chettiar. ILR 41 Mad 412 at p. 417 = (AIR 1917 PC 179 at p. 181):---

'It is the duty of a litigant to know the last day on which he can present his appeal, and if through delay on his part it becomes necessary in his favour the power contained in Section 5 of the Indian Limitation Act. The burden rests on him of adducting distinct proof of the sufficient cause on which he relies.'

10. In view of the affidavits filed before us we must hold that explanation has not been adduced tenable us to say that sufficient cause existed for the delay in filing the appeals . We will, therefore, decline to extend time under Section 5 of the Limitation Act. We would however make n order as to costs of these applications.

11. R.S. Narula, J.

12. I Agree .

13. MVJ/D. V. C.

14. Applications dismissed.


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