Skip to content


Shamkar Dass and ors. Vs. Shanti Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Petition Appeal No. 114 of 1967 and Regular First Appeal No. 10 of 1966
Judge
Reported in5(1969)DLT234
ActsHigh Court Rules; High Court Orders
AppellantShamkar Dass and ors.
RespondentShanti Devi and ors.
Advocates: A.C. Sud,; K.D. Sood,; S. Malhtora and;
Cases ReferredJagdish Chandra v. Union of India
Excerpt:
- - if the officer of the court had done his duty in nto receiving the appeal without the deposit, the appellants would have in all probability deposi- ted the typing charges well within the period of limitation and the ap- peal would have then been filed within the period of limitation. it is a well known principle of law that a litigant cannto be allowed to suffer because of the mistake of the court or of an officer of the court. himat lal bhait and tohers',it was observed that 'good faith' as defined in the limitation act is nto required to prove the existence of 'sufficient cause' under section 5 of the said act. normandin'.it follows thereforee that failure to comply with it does nto defeat the right of uppeal if the appeal is toherwise properly presented......it was, however, returned to the appellants' counsel on 1st december, 1966 on the ground that the typing charges of rs. 50.00 had nto been deposited. the appellants thereupon deposited the said amount on the same day. in the meanwhile, the limitation for the filing of the appeal had expired on 12th november, 1966. the petitioner-appellants thereforee pray that the delay in filing of the appeal between 12th november, 1966 and 1st december, 1966 be condoned. (3) by a ntoification no. jciro/1950 dated 28th june, 1950,the judicial commissioner in exercise of the power conferred on him by paragraph 42 of the himachal pradesh (courts) order, 1948, ordered that the rules and orders of the punjab high court relating to the preparation of paper books for hearing of appeals and the copying and.....
Judgment:

V.S. Deshpande, J.

(1) This application under section 5 of the Limitation Act and Section 151 of the Code of Civil Procedure raises the question whether the appellant was prevented by sufficient cause from filing the regular first appeal within the period of limitation and, if so, whether the delay in doing so should be condoned.

(2) The appeal was presented on 10th November, 1966 and was received without any objection. It was, however, returned to the appellants' counsel on 1st December, 1966 on the ground that the typing charges of Rs. 50.00 had nto been deposited. The appellants thereupon deposited the said amount on the same day. In the meanwhile, the limitation for the filing of the appeal had expired on 12th November, 1966. The petitioner-appellants thereforee pray that the delay in filing of the appeal between 12th November, 1966 and 1st December, 1966 be condoned.

(3) By a Ntoification No. JCIRO/1950 dated 28th June, 1950,the Judicial Commissioner in exercise of the power conferred on him by paragraph 42 of the Himachal Pradesh (Courts) Order, 1948, ordered that the Rules and Orders of the Punjab High Court relating to the preparation of paper books for hearing of appeals and the copying and typing of any such papers and the recovery of the expenses thereby incurred shall apply with modifications to all the civil and criminal Courts of Himachal Pradesh. According to the old Rule 3 (new Rule 9) of Chap- ter2-Aof Volume V of the Punjab High Court Rules and Orders as modified by the above Ntoification, in every appeal in which under these rules record has to be typed, the appellant shall with his appeal attach a receipt for a sum of Rs. 50.00 which should be deposited with the treasurer of the High Court to cover the cost of typing the record. No first appeal from a decree shall be received unless it is accompanied by such a receipt. This rule has a two-fold effect. In its first part, it enjoins the appellant to file the appeal only after depositing the typing charges. In its second part, it enjoins the officer of the High Court in charge of receiving the appeals nto to receive the first appeal from the decree unless it is accompanied by such a receipt.

(4) The learned counsel for the appellants has filed an affidavit to show that the practice of the Judicial Commissioner's Court was nto to insist upon the paying of the typing charges prior to the filing of the appeal. A verification of the records mentioned in the affidavit, however, does nto make out a case that there was such practice which could have misled the appellants' counsel is nto depositing the typing charges prior to the filing of the appeal. The appellants also cannto plead ignorance of the rule requiring the payment of typing charges prior to the filing of the appeal. The appellants, however, filed the appeal about 2 days before the last date of limitation for the filing of the appeal. If the officer of the Court had done his duty in nto receiving the appeal without the deposit, the appellants would have in all probability deposi- ted the typing charges well within the period of limitation and the ap- peal would have then been filed within the period of limitation. This diligence on the part of the appellants can be inferred from their con- duct in making the deposit on 1st December 1966, i.e. on the same day on which it was required by the office. Unfortunately, the officer con- cerned did nto do his duty under the second part of the Rule. Further, he did nto return the appeal to the appellants till 1st December, 1966, i.e. about 18 days after the expiry of the limitation period. In effect, thereforee, it is the negligence and dereliction of duty on the part of the Court officer which resulted in an toherwise valid appeal being deemed to have been presented after the period of limitation. Had the officer done his duty, the appeal would have been presented before the expiry of the period of limitation. It is a well known principle of law that a litigant cannto be allowed to suffer because of the mistake of the Court or of an officer of the Court. In Jagdish Chandra v. Union of India^ the Memorandum of Appeal was put in the petitinn-box so that no particular officer could be blamed for accepting it without the deposit of the typing charges. Nevertheless, the Court observed that the duty of the officer to insist upon the depositing of typing charges had to be done immedia- tely after the appeal was taken out of the petition-box by the officer concerned. In that case also, lie did nto do so and the Memorandum of Appeal was returned to the appellant 5 days after the expiry of the period of limitation for the filing of the appeal. It was he'd that the appellant was entitled to the extension of the period of limitation under Section 5 of the Limitation Act. In Mukhtiar Ahmed v. Himat Lal Bhait and tohers', it was observed that 'good faith' as defined in the Limitation Act is nto required to prove the existence of 'sufficient cause' under section 5 of the said Act. The expression 'sufficient cause' is, thereforee, to be reasonably construed. It is clear thereforee that, if nto for any toher reason, at any rate, on the ground that the negligence of the office cannto be allowed to prejudice the interests of the appellants, the appellants were prevented from presenting within limi- tation a valid appeal by sufficient cause within the meaning of Section 5 of the Limitation Act and is entitled to its benefit. thereforee, the delay in filing the appeal deserves to be condoned.

(5) While the above ground is sufficient to dispose of this applicalion, it is also to be ntoed again that paragraph 42 of the Himachal Pradesh (Courts) Order, 1948, empowered the Judicial Commissioner to make rules 'for the preparation of paper books for the hearing of appeals and the copying, typing or printing of any such papers........and the recovery.. ......of the expenses thereby incurred.' A paper book has thereforee to be prepared for the hearing of the appeal. The appeal cannto be heard unless it is presented and admitted. It cannto be said that a paper book must be prepared before the appeal is presented. It would follow thereforee that the deposit of the typing charges prior to the filing of the appeal cannto be said to be mandatory. It is only to expedite the preparation of the paper books that Rule 8 of Chapter 2-A of Volume V of the Punjab High Court Rules and Order? insists that the deposit should be made prior to the presenting of the appeal. Strictly speaking, the right of appeal given by Section 96 of the Code of Civil Procedure or by an analogous law is a substantive right which can be subjected only to such conditions as are contemplated by Section 96 or the analogous law or by relevant Rules of Order 41. Code of Civil Pro- cedure. The rules made under paragraph 42 of the Himachal Pradesh courts) Order do nto relate to the presenting of the appeals, but only to the preparation of the paper book for the hearing of appeals, which must have been already presented. In so far as thereforee such a rule re- _ quires the making of the deposit prior' to the filing of the appeal, it j should have to be construed as directory and nto mandatory.

(6) It is to be ntoed that the next two Rules 9 and 10 enable the extension of time for making further deposits for Sthe payment of typing charges. The fact that the time can be extended turn making further deposits would show that the making of the deposits prior to the pre- senting of the appeal was nto intended to be mandatory It cannto lie reasonably argued that the making of the initial deposit under Rule 8 was mandatory while the making of the further deposits under Rules 9 and 10 within the time prescribed therein was directory. The deposit as a whole must be viewed as one and different parts of it cannto be subjected to different kinds of tests, some being mandatory and some directory. This line of reasoning is supported by the observations in Jagdish Chandra v. Union of India^, already referred to above. The object of Rules 8, 9 and 10 is to enable the appeal, which has been al- ready presented, to be heard with the help of a paper book If Rule 8 is held to be mandatory, serious injustice will be caused to the appel- hnts without furthering the object of Rules 8, 9 and 10 which is merely to facilitate the hearing of the appeal. Complianee with Rule 8 is nto intended to be a condition precedent to the viability of the appeal. Under these circumstance. Rule 8 has to be construed as directory and nto man.datory. Montreal State Railway'v.Normandin'. 'It follows thereforee that failure to comply with it does nto defeat the right of uppeal if the appeal is toherwise properly presented.

(7) The application is allowed and the Regular First Appeal is held to be filed within the period of limitation.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //