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Ram Kishan Gappo Ram and anr. Vs. Smt. Mathuri Devi W/O Bhag Mal Brahmn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1614 of 1963
Judge
Reported inAIR1967P& H407
ActsLimitation Act, 1908 - Sections 12
AppellantRam Kishan Gappo Ram and anr.
RespondentSmt. Mathuri Devi W/O Bhag Mal Brahmn and ors.
Appellant Advocate V.P. Sood and; H.L. Sarin, Advs.
Respondent Advocate G.P. Jain, Adv.
DispositionPetition dismissed
Excerpt:
.....of limitation for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree must be excluded as also the lime requisite for obtaining a copy of the judgment on which the decree is based the expression 'lime requisite' as used in this section, has not been defined, with the result that this expression must be construed to mean lime properly and reasonably required, and no period of time can be required as requisite under this section which need not have elapsed if the appellant had taken reasonable and proper steps to obtain the relevant judgment and decree. it is quite true that the word 'requisite' is a strong word and it means something more than the word 'required'.it may appropriately be held to mean 'properly..........at ambala on 18-3-1963.3. on these facts, the learned senior subordinate judge held that if the time requisite was to be calculated from 24-12-1962 up to 15-2-1963 for the copy of the judgment and from 19-2-1963 up to 5-3-1968 for obtaining copy of the preliminary decree, then a period of 69 days was to be deducted as time requisite for obtaining copies and the appeal presented on 18-3-1963 would be within time because 17-3-1963 was a sunday. he, however, felt that the time requisite for obtaining a copy of the judgment in the present case could only start from 28-12-1962 when the application was handed over to the copying clerk and also would be counted only up to 13-2-1962 when the copy was ready at kharar. in the same way, in regard to time requisite for obtaining copy of the.....
Judgment:

I.D. Dua, J.

1. The short point which arises in this regular second appeal is whether the appeal presented in the Court of the learned Senior Subordinate Judge. Ambala, was within limitation. The Court below has. held it to be barred by time.

2. The dates relevant for the purpose of obtaining copies of the judgment and decree of the Court of first instance may here be noted. The suit was for rendition of accounts of a dissolved partnership instituted by Smt. Mathura Devi. The partnership had been entered into by her husband with the defendants for doing transport business. A preliminary decree in this suit was passed on 8-12-1962 by Shri Gurcharan Singh Dhaliwal, Subordinate Judge 1st Class at Chandigarh. An application for a copy of the judgment was presented to the Court at Chandigarh on 24-12-1962, because, according to the common case of the parties, without an order of the Court, such an application could not be taken cognizance of by the copying clerk who functions at Kharar.

This application with an order of the Court was given to the copying clerk on 28-12-1962 when he registered it in the relevant register. The copy was ready at Kharar on 13-2-1963 but was delivered to the parties at Chandigarh on 15-2 1968 when the copying clerk visited Chandigarh. On a question by me, the learned counsel for the respondents stated that, in all probability the copying clerk had taken the file to Kharar. In regard to the copy of the preliminary decree, an application was made on 19-2-1963 and the copy was ready again at Kharar on 3-3-1968 which was delivered at Chandigarh on 5-3-1963 Both the parties, I am informed, belong to Chandigarh. The appeal was presented in the Court of the Senior Subordinate Judge at Ambala on 18-3-1963.

3. On these facts, the learned Senior Subordinate Judge held that if the time requisite was to be calculated from 24-12-1962 up to 15-2-1963 for the copy of the judgment and from 19-2-1963 up to 5-3-1968 for obtaining copy of the preliminary decree, then a period of 69 days was to be deducted as time requisite for obtaining copies and the appeal presented on 18-3-1963 would be within time because 17-3-1963 was a Sunday. He, however, felt that the time requisite for obtaining a copy of the judgment in the present case could only start from 28-12-1962 when the application was handed over to the copying clerk and also would be counted only up to 13-2-1962 when the copy was ready at Kharar. In the same way, in regard to time requisite for obtaining copy of the decree, he felt that the time should be counted up to 3-3-1963 and not 5-3-1963. It is agreed at the bar that if 69 days are to be excluded, and 17-3-1963 being a Sunday is also added, then the appeal presented was amply within time. The question, therefore, is what is the time requisite in the case in hand.

Under Section 12, Indian Limitation Act. in computing the period of limitation for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree must be excluded as also the lime requisite for obtaining a copy of the judgment on which the decree is based The expression 'lime requisite' as used in this section, has not been defined, with the result that this expression must be construed to mean lime properly and reasonably required, and no period of time can be required as requisite under this section which need not have elapsed if the appellant had taken reasonable and proper steps to obtain the relevant judgment and decree. It is quite true that the word 'requisite' is a strong word and it means something more than the word 'required'. It may appropriately be held to mean 'properly required'. If the time actually taken for obtaining copies is due to any dilatoriness on the part of the applicant, then that lime may not be allowed to him but he must be allowed any time occasioned by any-thing done in the office of the Court. Section 12, in my opinion, really confers a substantive right upon the appellant lo claim the lime as excluded.

In the case, in hand, therefore, when the copying clerk sits at Kharar and the Presiding Officer is at Chandigarh, in my opinion, on the dale when the application for a copy is made to the Presiding Officer at Chandigarh, lime requisite must he held to start. The application was given to the copying agent within reasonable time. Again, no date of delivery having been fixed in this case, the mere fact that the copy was ready at Kharar would seem to me to be immaterial and the date on which the copy is delivered by the clerk at Chandigarh namely 15-2-1963 for the judgment and 5-3-1963 for the decree, must be deemed to be the relevant dale for construing the expression 'lime requisite'

It is obvious that the question as to what is the time requisite for obtaining copies in any particular case, must depend on its peculiar facts and circumstances and has to be determined in its own background, of course in the light of the rules, if any, framed on the subject and also of the practice of the court. I am informed that there are in existence rules framed for the supply of copies of records in the present case to which my attention has been drawn by Shri Ganga Parshad Jain. In Standing Order No. 5 in Appendix No. VI contained in Punjab Acts by Shri Shamair Chand, Vol. II. 1934 Edition, 1 find that in Rule No. 7, it is provided, inter alia, that applications for copies shall be received, in the case of applications made at the headquarters of a district, by the officer-in-charge of the copying agency, by the Sadr copying agent or by the officer taking daily petitions, and in the case of applications for copies of records of Courts or offices situated at a distance of more than ten miles from the headquarters of the district, and made to such Courts or offices, by the Presiding Officer of the Court or office, a copy of whose record is applied for.

Under Rule 9, on receipt, the applications shall be scrutinised by the Sadr Copying Agent at headquarters and elsewhere by the Presiding Officer of the Court, and if the application does not require to be returned, the Presiding Officer shall, if the copy can be given, order it to be prepared. Under Rule 13, if a copy is ordered to be prepared, the copying agent shall, in the case of personal applications, tell the applicant when the copy is likely to be ready, and this shall ordinarily be not later than the third working day. But any applicant for an 'urgent copy', if his application be presented within the first two hours of the working day, and the 'urgent fee' has been paid, shall be entitled to have his copy furnished to him, if possible, before the close of the same day.

Without pursuing the matter further and without determining whether or not these rules are applicable to the case before me, though it is conceded that they are applicable, in my opinion, on the facts and circumstances of this case, the time, from the date of the presentation of the application to the Court, to the date of delivery, must be held to be requisite under the provision of Section 12, Indian Limitation Act.

4. The respondents' counsel has submitted that on 5-3-1963 both the copies were with the appellants and it is not shown why the appeal was not presented before 18-3-1963. This contention may have relevance for the purpose of applying Section 5, Indian Limitation Act, but not Section 12, which' confers a substantive right not depending on discretion of the Court.

5. For the foregoing reasons. I am constrained to set aside the judgment and decree of the learned Senior Subordinate Judge and send the case back to the said Court for re-decision on the merits.

6. The respondents' learned counsel has submitted that the plaintiff Smt. Mathura Devi is a poor widow and is being deprived of her legitimate right by the defendants who are resisting the suit on untenable grounds. He has requested that I should myself dispose of the entire appeal on the merits. With this object, he has desired that I should read the judgment of the trial Court which is very well-reasoned and sound.

7. I am afraid it is not possible for me to convert myself into a Court of first appeal in the present proceedings when the only question agitated by the appellants is one of limitation for the appeal in the lower appellate Court. I, however, do feel that the learned Senior Subordinate Judge must dispose of the appeal with due despatch and within five weeks from today. Parties are directed to appear in the Court of the Senior Subordinate Judge on 11-10-1965 and the appeal must be heard anddisposed of on 18-10-1965. The records may be remitted to the Court below (Court of the Senior Subordinate Judge, Ambala) without undue delay. In the circumstances of this case there would be no order for costs in this appeal, but otherwise the costs would be costs in the cause.


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