Pritarn Singh Safeer
(1) Before the counsel for the appellant could open his address Mr. S. C. Malik accompanied by Mr. Vijay Kishan appearing for the respondent raised the objection that the appeal is barred by time. The contention raised is that in 1926, the then Punjab High Court added rule 2 in order 42 of the Civil Procedure Code :-
'INaddition to the coppies specified under order 41 rule 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.'
My attention has also been drawn to the relevant rule contained in volume V of the High Court Rules and Order. It is provided therein :-
'EVERYmemorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by order 41 rule 1 of the civil Procedure Code. In the case of second appeals in addition to the documents prescribed by order 41 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.'
It is urged by Mr. Malik that the appeal could not be deemed to have been validly instituted unless and until it was accompanied by the requisite certified copies. According to him the appeal can be held to have been duly instituted only on 24th Aug, 1967 much beyond the period of limitation when the certified copy of the judgment of the court of first instance was filed in compliance with the objections raised by the Registry.
(2) In order to appreciate the contentions it may be observed that the decree against which the appeal was filed was made on the 2nd of March, 1967. Application for obtaining the certified copies was filed on the 3rd March, 1967 and the copying department prepared the same by the 4th of April, 1967. The appeal was filed on the 1st of June, 1967 but then it was returned on the 8th June, 1967 for meeting the objections which had been raised by the Registry. The appeal was then re-filed on the llth July, 1967. I have seen various notes pertaining to the objections then raised and one of the objections was that the certified copy of the judgment of the lower court had not been filed. The nothings made by the officials of the Registry disclose that a note pertaining to the objections was made on the 17th of July, 1967. It then went through the hands of several officials and after the objections were approved, the memorandum of appeal was returned on 25th of July, 1967, for meeting them. The re-filing stamp discloses that the appeal was re-filed on the 24th of August, 1967. The period of limitation after allowing the time spent in respect of the preparation of the certified copies of the decree dated the 2nd March, 1967, and the judgment on which that decree was founded, expired on the 1st of July, 1967.
(3) It is clear from the dates enumerated above that even on the 25th July, 1967, when the memorandum of appeal was returned raising the objection regarding the non-filing of a certified copy of the judgment of the court of first instance, the appeal had become time-barred. Various High Courts have considered as to whether it would be permissible under the law to allow the period spent in respect of the obtaining of the certified copy of the judgment of the court of first instance in terms of section 12 of the Limitation Act while calculating as to when the bar of limitation would occur. A division bench of this court dealt with that aspect in its judgment reported as Bhagwan Dass Gupta v. Mukat Lal and others, 1970 P.L.R. (Delhi Section) 78. It was observed therein that the provisions of section 12 of the Limitation Act did not permit the deduction of the period spent on obtaining a certified copy of the judgment of the court of first instance. In order to relieve an appellant of the rigours of limitations, the circumstances of a case may justify the court's indulgence in terms of section 5 of the Limitation Act Such determination, however, will be controlled by juridical principle and the provisions of section 5 of the Limitation Act require the satisfaction of the Court on a sound footing so that no injustice is done to the opposing party to whom rights may have accrued because of the running out of the period of limitation.
(4) In this case it is significant that the certified copy of the judgment of the court of first instance obviously filed along with the memorandum of appeal on the 24th of August, 1967 bears a stamp of the copying department which contains the relevant dates. The application for obtaining the certified copy of the judgment made by the trial crt was preferred on 3rd March, 1967. The certified copy was ready on the 14th of July, 1967. The memorandum of appeal was retuned on 25th July, 1967, with the objection that the certified copy of the judgment of the court of first instance had not been filed. That was several days after the certified copy filed on the record had been prepared by the copying department This is a case which leads me to the conclusion that the counsel may have informed the department concerned that the certified copy of the judgment of the court of first instance was required to be filed but then he could not have filed it till actually the copy was made available to him. Whatever may have been the steps which the counsel appearing for the appellant may have taken, it remains well established that the certified copy of the judgment of the court of first instance actually prepared by the copying department by the 14th of July, 1967, was filed beyond time. The memorandum of appeal having been returned on the 25th of July, 1967, the appeal, being barred even on that date, the re-filing of the memorandum of appeal on 24th August, 1967, could not in any way come to the rescue of the appellant.
(5) I hold that the appeal is hopelessly barred by time. The same is dismissed. There will be no order as to costs.