J.P. Jain, J.
1. This second appeal by the defendant is against the appellate judgment and decree dated 30-7-69 dismissing his first appeal No. 104/69 as time barred.
2. Respondent's suit for arrears of rent and for the ejectment of the defendant from the suit premises was decreed with costs on 30-11-68 by the Additional Munsiff Magistrate Ajmer City (East). Against this decree defendant Suresh Kumar preferred the appeal No, 104 of 69 on 13-2-69. He applied for certified copies of the judgment and decree on 20-12-68 4-1-69 20-12-68 4-1-69 was fixed for the delivery of the copies. On that date, according to the contention on behalf of the appellant Mr. Rikhab Chand Jain his advocate was present. The copies were not ready. No next date was fixed for delivery of the copies. Copies were ready on 28-1-69. As the defendant or his counsel had no notice, he obtained the copies on 12-2-69, and presented the appeal on 13-2-69 Along with the memo of appeal the appellant submitted an application under Section 5 of the Limitation Act, accompanied by an affidavit. The learned Civil Judge, Ajmer, who dealt with this appeal held the appeal as time barred and found that there was no good cause for condoning the delay. Accordingly he dismissed the appeal vide his order dated 30-7-69. It is this decree that has been challenged in second appeal.
3. Mr. Rikhab Chand Jain appearing on behalf of the appellant invited my attention to Rule 234 of the General Rules (Civil), 1952. He submitted that on 4-1-69 he was present in the copying department. Copies were not ready and he was not intimated of any further date for delivery of the copies and when he came to know on 12-2 69 that copies were ready, he obtained the same on that very day. Another submission on behalf of the appellant that has been advanced is that assuming that he was not present on 4-1-69 it was obligatory on the part of the copying department to have notified the next date for delivery on the notice board of the court and since it was not done, it can not be said that he was not entitled to exclude the time from 28-1-69. Rule 234 reads as follows:
234. A definite date not ordinarily exceeding seven days ahead shall be fixed for the delivery of the copy and intimated to the applicant. The copy, as far as possible, shall be delivered on the date so fixed.
If for any reason, the copy is not ready for delivery on the date so fixed, the applicant shall be directed to attend on another date, when the copy may be expected to be ready for delivery.
If the copy is not ready and the applicant does not appear on the date fixed, notice of the next date fixed for the delivery of copy shall be sent to him by post, if he has deposited the necessary postal charges.
If necessary postal charges have not been deposited it shall be affixed on the notice board of the court.
4. After having read the application 13-2-69 and the affidavit of Mr. Rikhab Chand Jain I am unable to hold that he was present on 4-1-69. I find no positive assertion in His affidavit that he was present on that date, The learned Counsel urged that it can be inferred from the facts stated by him that he was present on 4-1-69 in the copying department to take the delivery of the copies. I am unable to find any substance in this submission. I accordingly hold that the learned Judge in appeal was right in holding that nobody on behalf of the defendant was present on 4-1-69.
5. Next question that, however, arises in this case is as to whether any notice was given to the parties, The copy of the application which is No. 8441, is on the record of the trial court. Admittedly the copies were not ready on 4-1-69 This is also established by the endorsement on the certified copies given to Shri Rikhab Chand Jain on 12-2-69 The endorsement is to the effect that the copies become ready on 28-1-69. From the application I find nothing to show that any next date was fixed to inform the party concerned to take the delivery of the copies. I also do not find anything to show that any notice was given to the party under Rule 234. According to para 2 of Rule 234, if a copy is not ready on the date fixed, the applicant shall be directed to attend on another date when the copy may be expected to be ready for delivery. In the present case as noticed above the defendant or Shri Rikhab Chand Jain was not present on 4-1-69. The third paragraph of rule provides that if a copy is not ready and the applicant does not appear on the date so fixed, the notice of the next date fixed for the delivery of the copy shall be sent to him by post in case he has deposited the necessary postal charges. It is not the case of the appellant that postal charges were deposited by him. This part of the rule will not, therefore, apply. The second part of this paragraph further provides that if necessary postal charges have not been deposited, it shall be affixed on the notice board of the court. The requirement of the rule thus is that in case the party does not appear on the date fixed for delivery of the copies and the copies are not ready on that date the next date shall be affixed on the notice board of the court. In the instant case, this requirement of the rule was not complied with, and if this was not done it cannot be said that the defendant who applied for the copies, was at fault and he is not entitled to exclude the time required for obtaining the copies.
6. On the other hand Mr. Sumer Chand Bhandari learned Counsel for the respondent urged that a notice was affixed on the notice board on 28-1-69, This fact stands corroborated by the endorsement on the certified copies supplied to the defendant on 12 2 69. But there is no gain-saying the fact that this notice was under Rule 235 of the General Rules (Civil), 1952. It runs to the following effect:
235: When a copy is ready, and the applicant or his authorised agent is present the copy shall be given to him If the applicant or this authorised agent is not present, a notice over the signature of the head of office shall be affixed to the notice board notifying that the copy is ready for delivery. If from the date of the affixing of the notice, the applicant appears within three months, the copy shall be delivered to him. If the applicant does not appear within this period, the copy shall be destroyed under the order of the Presiding Officer, an entry to that effect being made in the remarks column in the register of copying applications (Reg. 9).
The purpose of giving notice under this rule is entirely different and it has nothing to do with the calculating of the number of days required in obtaining the copy. If a party does not appear on the date fixed to obtain the copy or in accordance with the notice given under Rule 234, the office is not supposed to keep the copy for all time to come. A notice then is required to be affixed to the notice beard notifying the fact that the copy is ready for delivery. The applicant can lake the delivery of the copy within three months. If he does not do so, the copy shall be destroyed under the orders of the Presiding Officer and entry to that effect shall be made in the concerned register. The submission of Mr. Bhandari, therefore, does not help him and the learned lower appellate court who has placed reliance on this fact, is not correct.
7. Another contention of Mr. Bhandari is that the defendant's application No. 8441, was defective in as much as the particulars of the court were not given correctly. The case was decided by the Addl. Munsiff Magistrate Ajmer City (West). It was also submitted that Mr. Rikhab Chand Jain on behalf of the defendant made an application on 3-1-69 to correct the particulars of the application. This is correct and these facts are well borne out from the application submitted for obtaining copies on 20 12 68 and the application of Shri R.C. Jain dated 3 1 69. But I am unable to find any substance in this contention and my reasons are two fold. The copying department did not at any stage say that the application is defective for want of proper particulars. There is no endorsement on the application that the application was detective and the defendant was at any time called upon to complete the application by giving correct particulars of the court. The second reason is that from the endorsement on the certified copies given to the defendant the date of the presentation of the application has been shown as 20 12 68 & not 3-1-69 when the correct particulars were supplied by the defendant. From these facts it is clear that the copying department was not misled by the alleged incorrect particulars of the application. The matter would have been different if the office of the copying department had noted that it was not possible for it to trace the file and the application had been rejected or returned for furnishing the correct particulars. In that event, the appellant would not have been entitled to the exclusion of the days from 20-12 68. That apart, this objection was not raised on behalf of the respondent in the affidavit before the lower appellate court as to give sufficient opportunity to the appellant to meet the case on this point Learned Judge was not tight in taking notice of this fact in the arguments as this was not a mere question of law. In this view of the matter I am unable to accept the submission of Mr. Bhandari that the appellant can claim to exclude the days from 3-1-69 only and not from 20 12-68. Accordingly, I hold that the view taken by the learned appellate court is not correct. The decisions relied upon by the learned Judge, are not applicable to the facts of this case.
8. Reference may also be made to a decision of this Court in Mangilal v. Sitaram . In this case on similar facts, an appeal against an order of the court of Magistrate First Class Jodhpur under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was dismissed by the District Magistrate as time barred. The application for copy was given on 21-6-1956 as the date for supplying the copy. The copy was not ready on that date and so it was not given to him. The copy was ready on 3-7-1956. It was contended that a period between 3-7 56 and 7-7 56 could not be excluded because the applicant ought to have been present in the court on 3-7 56 and obtained the copy. At that time Rule 144 was in force and it correspondences to Rule 234 of the General Rules (Civil), 1952. Dave J. as he then was, held that as no further date was fixed for the supply of the copy on 21-6-57, and as the applicant had not deposited necessary postal charges, a notice should have been affixed under Rule 144(3) on the notice board of the court. If such a notice were affixed on the notice board of the court, then the applicant would not have been entitled to exclusion of time between 3-7-56 and 7-7-56. But since no such notice was affixed, he was certainly entitled to the exclusion of this period. In the present case, as well, no notice was affixed on the notice board of the copying department that the defendant should obtain his copies on 28-1-69. He is therefore, entitled to the exclusion of the period between 28-1-69 to 12-2-69.
9. In view of the foregoing discussion it is not necessary for me to consider the application under Section 5 of the Indian Limitation Act for condoning the delay. In my considered opinion the appeal was within time.
10. In the result the appeal succeeds. The appellate judgment and decree dated 30-7 69 passed by the Civil Judge, Ajmer are set aside and I hold that the appeal was within time. The appeal will go back to the learned District Judge for decision on merits. The learned District Judge will either hear it himself or transfer it to some other competent Judge The costs of this Court and that of the lower appellate court will abide the event.