V.S. Deshpande, J.
(1) The practice of this Court regarding presentation of second appeals, as laid down in Chapter I of Volume V of the Rules and Orders of this Court, is as follows:- Part A. Paragraph 2 (b): Every memorandum of appeal shall be accompanied by copies of the decree and judgment, as prescribed by Order Xli, Rule I of the Civil Procedure Code. In the case of Second Appeals, in addition to the documents prescribed by Order Xli, Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the Court of First instance unless the appellate court dispenses therewith. Part E, Paragraph 2: When a memorandum of appeal, cross-objection, petition or application in any proceeding in the High Court contains an assertion of any fact or facts contrary to or outside the record or nto supported by evidence already on record, such assertion shall be supported by one or more affidavits. Part E, Paragraph 6: When upon any application any evidence is to be given, such evidence shall ordinarily be given by affidavit as provided in Order XIX? Rule 2 of the Code of Civil Procedure, and nto otherwise, unless by an order of a Judge or Bench. Explanationn:-Evidence given in support of any of the following or similar applications should be given by affidavit unless otherwise ordered: - (a) applications to admit an appeal or application which is prima facie barred by time.
(2) The above practice is in accordance with the following provisions of law: Rule 2 was added to Order 42 Civil Procedure Code by the Punjab High Court. This rule applies to this Court in view of section 7 of the Delhi High Court Act 1966 (as to which reference may be made to Radhey Shyam v. Bawa Joginder Singh. Rule 2 is as follows:-
'R.2.In addition to the copies specified in 0.41 R-1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith.'
(3) Under Article 1 16 of the Schedule to the Limitation Act the period of limitation for filing an appeal to the High Court is 90 days. Out of this period the time spent by the appellant in obtaining a certified copy of the decree.and the judgment appealed against is to be excluded under sub-sections (2) and (3) of section 12 of the Limitation Act. But the time spent in obtaining the judment of the Court of the first instance cannto be excluded from the computation of the period of limitation for filing the second appeal as neither section 12 of the Limitation Act nor any other provision of law provides for such exclusion. The majority of the High Courts have also added Rule 2 to Order 12 to require that in all second appeals a copy of the judgment of the Court of the first instance shall accompany the memorandum of second appeal in addition to the copy of the decree and judgment appealed against, as required by Order 41 Rule I Civil Procedure Code Copies must be certified copies as they alone can prove the contents of the judgment and decree, which are public documents in view of sections 76 and 77 of the Evidence Act.
(4) Naturally, the question repeatedly arose whether the appellant was entitled to file the second appeal beyond the period of limitation. prescribed by Article 116 read with section 12 of the Limitation Act, if the delay was caused by the time spent in obtaining the certified copy of the judgment of the first instance. The question was considered by a Full Bench of the Allahabad High Court in 1917 in Narsingh Sahai v. Sheo Prasad. On behalf of the appellant it was urged that the rule requiring that a copy of the judgment of the court of first instance be filed with the memorandum of appeal was ultra virus because its effect in practice was to modify and cut down the period of limitation allowed by the Limitation Act. The Court could no-doubt, give relief under section of the Limitation Act but that would be reducing the appellant to sue for grace which might or might nto b' given for a matter to which he ought to be entitled as of right It was nto reasonable that the appellant should be placed in a different position with respect to the copv of the first co-court's judgment from that in respect of the copy of the judgment appealed against, if he is equally required to file both It was thereforee, suggested for the appellant that the Court should lay down that as a matter of general practice the benefit of section 5 of the Limitation Act would be given to the appellant.
(5) On behalf of the Respondent 1t was pointed out that the rule requiring the filing of a copy of the judgment of the Court of first instance was concerned only with the proper presentation of an appeal and had nothing to do with any question of limitation, it could nto graft an important addition to the provisions of section 12 of the Limitation Act and it did nto profess to do so.
(6) The Full Bench held that the rule was nto intended to alter in any case the Indian Limitation Act. Nor was such a power given to the Court by section 12 of the Limitation Act. The time spent in obtaining the copy of the judgment of the court of first instance could nto thereforee, be execluded under section 12 of the Limitation Act. Whether the benefit of section 5 should be given to the appellant was to be decided on the facts of each case. This view has been consistently followed by all the High Courts. To give only one instance, refernce, may be made to George Gowshala v. Bal ak Ram. Learned counsel for the appellant has nto been able to cite even a single decision to the contrary.
(7) In Giani Ram v. Ram Chander (R. S. A. No 221 of 1967) Ismail J., passed the following order on 26th September, 1967:
'PURSUANTto my order dated 22nd September, 1967, Mr. D. D. Chawla, Advocate, President of the Bar Association, is present and the Registrar of this Court is also present. After hearing their views I consider that the proper practice and procedure with regard to the filing of Second Appeals as far as this Court is concerned, should be as follows:- When the Second Appeal is within time after excluding; the time requisite for obtaining the certified copy of the judgment and decree of the first appellate Court and the certified copy of the judgment of the Court of first instance, the counsel for the appellant or the appellant will endorse a note to that effect in the Memorandum of grounds of Second Appeal. At the end thereof, an I pray that in view of this fact any delay in presenting the second appeal with reference to the provisions contained in section 12(3) of the Limitation Act may be condoned. Thereafter, the office will verify the correctness of this note and at the time of placing the appeal for admission before the Court will obtain the orders of the Court condoning the delay under section 5 of the Limitation Act. In my view, the procedure will reconcile the requirements of Order 42, Rule 2, Code of Civil Procedure, with those of section 12(3) of the Limitation Act, and simultaneously comply with the statutary requirements of section 12(3) of the Limitation Act both in letter and spirit. The delay in, this case is executed and the appeal is admitted.'
(8) With respect, it appears to us that the order is liable to be misunderstood by litigants and counsel to mean that the time requisite for obtaining the copy of the judgment of the court of the first instance can be excluded from the computation of the period of limitation in the manner in which the time requisite for obtaining a copy of the judgment of the first appellate Court is excluded under section 12(3) of the Limitation Act. Firstly, since this is nto the law, it is necessary to avoid such a misunderstanding . Secondly and we again say so with respect, the above mentioned order seems to threat the condensation of delay in filing the appeal under section 5 of the Limitation Act as a matter of course for which routine practice can be laid down. We would like to point oat that the objects of section 12(3) and of section 5 of the Limitation Act are quite different from each other. The exclusion of the time requisite to obtain a copy of the judgment of the first appellate Court is a statutory right under section 12(3). On the other hand when an appeal is presented after the prescribed period the appellant has to satisfy the Court under section 5 that he had sufficient cause for nto preferring the appeal within such period. The law laid down by the Supreme Court in Ram Lal v. Rewa Coalfields Ltd. is as follows:-
'INall cases falling under section 5 what the party has to show is why he did nto file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause for nto filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, 'in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed.'
In their subsequent decision in Shakuntala Devi Jain v. Kuntal Kumari some more requirements are added by the Supreme Court to be fulfillled by the appellant in the following words:-
'ASlaid down in Krishana v. Chathappan (1890) 13 Mad 269 'section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principlas which are well understood; the words 'sufficient cause' receiving a liberal construction so us to advance substantial justice when no negligence nor in action nor want of bona fides is imputable to the appellant '
(9) The result is that only those days which are spent by the appellant in actually obtaining the copy of the Judgment of the court of first instance after the expiry of the period of limitation and till the delivery of the copy to him plus such time as may be reasonably spent thereafter in drafting the grounds of appeal etc. would be regarded as sufficient cause for condensation of the delay in preferring the appeal under section 5.
(10) The practical (difference between section 12(3) and section 5 in this respect is obvious. The whole of the period excluded under section 12(3) enures to the benefit of the appellant. But the whole of the time spent in obtaining a copy of the judgment of the Court of first instance cannto necessarily added to the prescribed period of limitation under section 5. If the application for the copy of the judgment of the court of first instance is made before the expiry of the period of limitation then the benefit of section 5 is neither needed nor given in respect of the time spent in obtaining such a copy up to the expiry of the period of limitation It is only alter such expiry that every day of delay has to b' explained by the appellant so that the Ciurt may consider if the delay was due to sufficient cause within the meaning of section 5 of the Limitation Act. The appellant would, thereforee, be bound to present the appeal on the date on which he obtains the copy or very soon afterwards, as observed by Tek Chand J. in A I R 1927 Lah 717, referred to above. If, for instance, the application for the copy is made in a certain case ten days before the expiry of the period of limitation and the copy is obtained on the twentieth day after the expiry of the period of limitation then the appeal has to be filed on the twentieth day or soon thereafter. The appellant cannto say that the ten days during which his application for the copy was pending prior to the expiry of the period of limitation to file the appeal should be available to him after the twentieth day on the ground that the appellant is entititled to the benefit of the whole of the period of time spent by him in obtaining the said copy. The delay in filing the appeal after the twentieth day and till the 30th will nto necessarily be justified as being due to a sufficient cause under section 5.
(11) Lastly, in each case in which the appeal is presented beyond the prescribed period of limitation the Court has to apply its mind judicially to decided whether the delay for filing the appeal was due to sufficient cause within the meaning of section 5 of the Limitation Act. Such a finding has to be given by the Court on hearing the parties and it is nto for the Office to obtain such a finding from the Court.
(12) We are of the view, thereforee, that the existing practice of the Court as laid down by the Rules and Orders mentioned at the out-set by us is correct and is in accordance with the provision of law set out by us thereafter.
(13) For the reasons given by us above, the above-mentioned order of Ismail J. was nto in accordance with the said practice and the provisions of law.The law and practice, stated by us alove, should also be brought to the notice of the members of the Bar and of the office of this Court to avoid any possible mis-understanding as to the presentation of second appeals Along with the copy of the judgment of the first instance in addition to the copies of the decree and the judgment appealed against.
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