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Moolchand Soni Vs. Virendra Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 234 of 1980
Judge
Reported in1981WLN70
AppellantMoolchand Soni
RespondentVirendra Kumar and anr.
DispositionAppeal dismissed
Cases ReferredMangilal v. Sitaram
Excerpt:
.....act--section 12--requisite time taken for obtaining certified copies--exclusion of--copies became ready for delivery and notice issued on 11.4.79-- held, appellate court was right in excluding time from 22.3.1979 to 11.4.1979.;the applicant is entitled to exclusion of time under section 12 of the limitation act, as the time 'requisite' for obtaining the certified copy. once a notice under rule 235 is affixed on the notice board, the applicant cannot thereafter be heard to say that he had no knowledge about the date when the copy would become ready.;the copies become ready for delivery and a notice in respect thereof was issued on april 11.1979. the appellate court was thus right in allowing exclusion of time to the appellant from march 22, 1979 to april 11, 1979 and the appellant was..........time spent in obtaining certified copies of the judgment and decree of the trial court until the date of delivery or he will be entitled to exclusion of time under section 12 of the limitation act only upto the date when the notice that the copy is ready was issued, in accordance with rule 235 of the rajasthan general rules (civil) 1952 (hereinafter called 'the rules').2. the decree in the instant case was passed by the trial court on march 16, 1979 and an application for obtaining certified copies of judgment and decree was filed on march 22 1979. march 29, 1979 was the date fixed for issuing the certified copies, but on that day the copies were not ready for delivery and no further date appears to have been given to the appellant for obtaining the certified copies. on april 11, 1979.....
Judgment:

Dwarka Prasad Gupta, J.

1. The question in this appeal is as to whether the appellant is entitled to enlargement of time spent in obtaining certified copies of the judgment and decree of the trial court until the date of delivery or he will be entitled to exclusion of time under Section 12 of the Limitation Act only upto the date when the notice that the copy is ready was issued, in accordance with Rule 235 of the Rajasthan General Rules (Civil) 1952 (hereinafter called 'The Rules').

2. The decree in the instant case was passed by the trial court on March 16, 1979 and an application for obtaining certified copies of judgment and decree was filed on March 22 1979. March 29, 1979 was the date fixed for issuing the certified copies, but on that day the copies were not ready for delivery and no further date appears to have been given to the appellant for obtaining the certified copies. On April 11, 1979 a notice under Rule 235 was issued and was affixed on the notice board notifying that the copies were ready for delivery. However, the appellant did not take delivery of the copies until May 23, 1979. In these circumstances, it is urged that the appellant was entitled to. exclusion of time under Section 12 of the Limitation Act from March 22, 1979 upto May 23.1979 when the delivery of certified copies was obtained by him. The first appellate court held that the time requisite for obtaining copies could only extend upto April 11, 1979 and the period from April 12, 1979 to May 23, 1979 could not be allowed to the appellant as the time requisite for obtaining the certified copies of the judgment and decree of the trial court. On this ground the first report was dismissed as being barred by time.

3. The argument which has been advanced by the learned Counsel for the appellant before me is that notice under Rule 234 of the Rules was not issued, which was mandatory, as the appellant should have been informed of the date on which the copies were to become ready for delivery, because on the date fixed earlier the copies were not ready and no further date was given. Reliance was placed on a decision of this Court in Mangilal v. Sitaram , in which it was held that if a notice in accordance with Rule 234 was not affixed on the notice board of the court, then the applicant for copy was entitled to the exclusion of time upto the date of taking delivery of the copy. But in that case no notice under Rule 235 appears to have been issued. Of course, if in the present case also the notice under Rule 235 would not have been issued, the appellant would have certainly been entitled to exclusion of time upto the date when he took delivery of the copies, because on the date fixed for delivery of the copies, because on the date fixed for delivery of such copies, that is, on March 29, 1979 the copies were not ready and no further date was given to the appellant, for delivery of the copies. In absence of any notice, the appellant could not be expected to enquire from the office every day about the preparation of the copies, and in such circumstances he would have been entitled to the execlusion of the entire period upto the date of actual delivery of the copies. But in the present case, notice under Rule 235 was issued and was affixed on the notice board of the court notifying that copies were ready for delivery. Such a notice was sufficient to give intimation to the appellant about the preparation of the copies and would serve the same purpose as notice under Rule 234 would have done.

4. It has always been held that under Section 12 of the Limitation Act the exclusion of time would be for such period which was requisite for obtaining a copy of the decree or judgment, appealed from. The time 'requisite' for obtaining a copy ordinarily commenced on the date when the copy applied for and extends upto the date when the copy is ready for delivery. But if the applicant has no knowledge about the date on which the copy was likely to become ready for delivery and no such date is fixed, then the applicant may be allowed time upto the date of actual taking of delivery. But once a notice issued to the applicant that the copy is ready for delivery, under Rule 235 of the Rules, then the applicant cannot ignore such a notice and he cannot insist for exclusion of time upto the date of actual delivery of the copy, on the ground that notice under Rule 234 was not issued. Although the courts should be careful in complying with the provisions of the Rules and notice under Rule 234 should normally be issued in cases where the copy is not ready for delivery on the date fixed and the applicant also does not appear on that date. But in cases where the next date for delivery of copy is not fixed or intimated to the applicant under Rule 234, then a notice issued under Rule 235 would serve the same purpose of furnishing information to the applicant that the copy is ready for delivery. The crux of the matter is that the applicant must be made aware of the fact that the copy applied for would become ready by a particular date or that it has already become ready for delivery and till then the applicant is entitled to exclusion of time under Section 12 of the Limitation Act, as the time 'requisite' for obtaining the certified copy. Once a notice under Rule 235 is affixed on the notice board, the applicant cannot thereafter be heard to say that he had no knowledge about the date when the copy would become ready. In the instant case, the copies became ready for delivery and a notice in respect thereof was issued on April 11, 1979. The appellate court was thus right in allowing exclusion of time to the appellant from March 22, 1979 to April 11, 1979 and the appellant was not entitled to any further exclusion of time, under Section 12 of the Limitation Act.

5. I, therefore, find no substance in this appeal and the case is dismissed.


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