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Sankar Biswas and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. Tender No. 133 of 1985
Judge
Reported inAIR1986Cal212
ActsLimitation Act, 1963 - Sections 4 and 12
AppellantSankar Biswas and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateD.N. Das, ;Shukdeb Sinha and ;Mukul Lahari, Advs.
Respondent AdvocateDipankar Gupta, ;Nigam Chakraborty and ;Debashis Mukherjee, Advs. for Nos. 1-4 and ;Amar Nath Banerjee, Adv. for No. 8
DispositionApplication allowed
Cases ReferredDurga v. Pancham
Excerpt:
imports and exports control - legislative powers--delegated legislation--section 3, imports and exports (control) act--empowers authorities to restrict trade--to be strictly construed--notification under section 3(1) to specify goods import or export of which is restricted--notification ipc (genl. 44)/65 dated 17-11-1965 restricting export of all goods to rhodesia--beyond powers of central government and invalid--jurisdiction--chief controller of imports and exports empowered to authenticate orders passed in name of president---authentication (orders and other instruments) rules 1958, rule 2(ii)(aa)--authentication (orders and other instruments) amendment rules, 1965--customs act (52 of 1962), sections 11,113 (d), 114--imports and exports (control) act (18 of 1947), section 3 --general.....m.n. roy, j. 1. this is an application for condoning the delay in preferring the appeal, which according to the stamp reporter of this court, was 4 days, but the answering respondents claimed such delay to be much more. 2. it would appear that on or about 25th september 1984, in civil rule no. 13194 (w) of 1983(sankar biswas v. state of west bengal), the learned trial judge, after overriding the orders as passed by other division benches of this court, had directed as under : --'there will be an interim order of status quo as on today confined only to the petitioners. the respondents will be at liberty to proceed against any other party who may be involved in the matter which is the subject-matter of the present rule and this interim order of status quo will not stand in the way of state.....
Judgment:

M.N. Roy, J.

1. This is an application for condoning the delay in preferring the appeal, which according to the Stamp reporter of this Court, was 4 days, but the answering Respondents claimed such delay to be much more.

2. It would appear that on or about 25th September 1984, in Civil Rule No. 13194 (W) of 1983(Sankar Biswas v. State of West Bengal), the learned trial Judge, after overriding the orders as passed by other Division Benches of this Court, had directed as under : --

'There will be an interim order of status quo as on today confined only to the petitioners. The Respondents will be at liberty to proceed against any other party who may be involved in the matter which is the subject-matter of the present rule and this interim order of status quo will not stand in the way of State Government taking any steps in obtaining sanction under Section 197 of Cr. P.C. if suchsanction is necessary in the case of the petitioners. Affidavit-in-opposition to the main Rule to be filed within one week after long vacation and reply by 19-11-84. Rule and application appear on 26-11-1984 marked before original side. The application would appear as a 'part-heard matter' and against such order, the present appeal was presented on 15th Jan. 1985. As indicated earlier, the Stamp reporter has reported the delay in presentation of the appeal to be by four days and he was of the view, that the concerned appeal, taking into consideration, the days required for preferring the same, was in time up to 11th Jan. 1985, but the same was out of time on 15th Jan. 1985. In their application under Section 5, the appellants who were Respondents in the writ petition, have stated that the requisition for certified copy of the concerned order was filed on 29th Oct. 1984 by their learned Advocate and this Court remained closed for Puja vacation on and from 27th Sept. 1984 to 28th Oct. 1984 and reopened on 29th Oct. 1984. It has also been stated that the folio requisition for the certified copies were notified on 8th Jan. 1985 and they were furnished on the same day. It has further been stated that the certified copy was made ready for delivery on 11th Jan. 1985. which was a Friday. It has been stated that on that date the learned Advocate's Clerk, Shri Tapan Kumar Biswas could not go to the department in the afternoon and the said Shri Biswas and his master had left the Court on that day, early. It has also been stated that the following day being 12th Jan.1985, was a Saturday, when the Court was closed and as such, the clerk concerned did not come to Court. It has further been stated that on 14th Jan. 1985, which was a Monday, the said clerk did not come to Court at all, as after going to his village home, he felt ill and on 15th January 1985, he went to the department and found that the certified copy was lying ready since 11th Jan. 1985, for delivery. Such being the position, it has been stated that there was admittedly four days delay in presenting the appeal and such delay should be condoned, as the appellants were prevented by just and sufficient cause from presenting the appeal in time and in any event, they were not at fault. It should be noted that at the tune of filing the application under Section 5, which was affirmed on 17th Jan. 1985, there was no affidavit filed by the clerk concerned.

3. When the application was taken up for consideration on 28th Feb. 1985, the points as mentioned hereinbefore, having been taken by the answering Respondents before us, we had requested the Stamp reporter of this Court, to give a comprehensive report, after giving his reasons as to how the appeal was stated to be presented out of time by four days and not more than those days as claimed by the answering Respondents. The Stamp reporter, after hearing the parties and considering their submissions before him, on 25th Mar. 1985, has reported that the office remained open on Saturday the 27th Oct. 1984, but according to him, that fact would not make any difference, in view of the decision in the case of Bhaya Lal Saha v. Smt. Ranu Bala De (1972) 76 Cal WN 778. That was a determination by the learned Division Bench, on a reference being made by Amiya Kumar Mookerjee, J. as his Lordship then was, since his Lordship felt that there was conflict of opinions in this Court on the applicability of the 'Maxim de minimis non curat lex'. It would be apparent that at the time of hearing, the petitioners before the Division Bench, made no reference to that Maxim at all, but contended that the deposit made on 17th Jan. 1966, as made in that case, should be deemed to be one required to be made on 15th Jan. 1966, inasmuch as the Court did not sit for the whole day on 15th Jan. which was a Saturday. Their Lordships of the Division Bench, on facts, have found that the defendants were under statutory obligation of depositing the rent month by month under Section 17(1) of the West Bengal Premises Tenancy Act, 1956. They deposited the rent for Dec. 1965 on 17th Jan. 1966, instead of depositing it on 15th Jan. 1966. The Court did not sit for the whole day on 15th Jan. which was a Saturday and on such facts, it has been held that the deposit made on 17th Jan. should be deemed to be deposited in the discharge of the defendants' statutory liability under Section 17 of the Act, by reasons of the Explanation to Section 4 of the Limitation Act 1963. In view of such observations, the Stamp reporter has further recorded that the contentions of the learned Advocate for the Respondents were not appropriate and tenable.

4. The matter appeared before us for hearing on 28th Mar. 1985 and on the prayers of the parties, we had also given them libertyto take exceptions, if any, within a stipulatedtime.

5. The Respondents have filed two oppositions, on the basis whereof, they have not only challenged the findings and observations of the Stamp reporter, but have also claimed that the appeal was filed much out of time than four days, as reported.

6. The first affidavit-in-opposition was dt. 7th Feb. 1985 and was filed through Sankar Biswas, Respondent 1 in these proceedings, who was also petitioner 1 in the writ petition. He has also replied to the supplementary affidavit dt. 17th Jan. 1985, which was filed by Shri Tapan Kumar Biswas, the clerk concerned. As indicated earlier, such affidavit was not filed initially, but by his supplementary affidavit, the said Shri Biswas has stated that because of his lack of experience, he could not furnish requisition for certified copy of the order and such requisition was furnished on 29th Oct. 1984, being the reopening day of this Court after the Puja vacation. He has also stated that later on, he came to know on 15th Jan. 1985 that the certified copy of the order dated 25th Sept. 1984 was made ready for delivery in the afternoon on 11th Jan. 1985, which was a Friday and on that day, he could not go to the department in the afternoon, as he had left Court after the midday recess for the purpose of catching the train for going to Madhyamgram in the District of Burdwan. He has also mentioned that Madhyamgram is his village home, where he is required to go every Friday. It was his case that in the morning hours of 11th Jan. 1985, when he went to the department, the copy was not ready. He has also stated that his master Shri M. Lahari, the learned Advocate also left Court by midday recess on that date. It was his case that he felt indisposed on Monday the 14th Jan. 1985 and as such, he could not come to Court on that day and he attended his duties on 15th Jan. 1985, when at about 2-30P.M., he went to the department and found that the certified copy of the concerned order was lying ready since 11th Jan. 1985. It was his further case, that immediately he informed his master and the memorandum of appeal was presented on 15th Jan. 1985. The fact that the memorandum of appeal was presented on 15th Jan. 1985, is not in dispute. The deponent of the affidavit, as mentioned hereinbefore, has stated that theapplicants have made deliberate attempt to mislead this Court by this overt pleading to the effect that there has been about four days' delay in filing the appeal and according to them, on the basis of or from the particulars furnished in the concerned petition, as also the affidavits, it would be manifestly clear that the appeal was presented after 112 days from the date of the order and as such, the period of delay would be much more than 82 days. It has also been stated that the applicants having been admittedly applied for a certified copy of the concerned order, after the period of limitation, was not entitled to any deduction from the total period of lapse on account of the time taken by the department to prepare and issue the certified copy and as such, there can be no deduction from or any adjustment against the said period of 82 days of delay beyond the period of limitation of 30 days, which is the statutory period prescribed for preferring an appeal of the present nature.

7. It was the case of the deponent that the appellants have failed to show any sufficient cause for condonation of delay and in fact, their application do not contain any reference of the affidavit of the said Shri Tapan Kumar Biswas, which has now been filed as supplementary affidavit. It has also been alleged and that too without prejudice to the contentions as indicated hereinbefore, that there is in fact, no explanation by the applicants, as to why the certified copy of the concerned order could not be applied for on 25th Oct. 1984 or on any following day, when the Court was still open. It has been claimed that there is no explanation as to why on 12th Jan. 1985, which was a Saturday and a working day for the departments of the High Court, no attempt was made to obtain the certified copy and in fact, there has also been no reason disclosed as to why the memorandum of appeal could not be filed on 29th Oct. 1984 i.e. the day of reopening of the Court after Puja vacation or earlier without annexing a certified copy of the concerned order. It has further been reiterated that delay in the instant case, was not only for four days, but the same was for a much more than that period. It has also been stated that the lack of experience of the clerk concerned viz. Shri Tapan Kumar Biswas, should not be allowed as a justification for not applying for the certified copy of the concerned order in time.

8. The second affidavit was dated 8th April 1985 and the same was affirmed by the said Shri Sankar Biswas. It has been stated that by the record as disclosed as Annexure-A to the present affidavit, the answering Respondents duly pointed out to the Stamp reporter, that his report, that the appeal was filed only after four days' delay was wrong. In fact, the relevant points which were placed before the Stamp reporter have been disclosed as Annexure-B, which again is a part of the letter dt. 18th Mar. 1985.

9. It has been pointed out that the stamp reporter in this case, appeared to have proceeded on the basis that the reopening of the office of this Court was on 27th Oct. 1984, would not make any difference and the present appeal could not be filed on 29th Oct. 1984, even though the office remained open on 27th Oct. 1984. It has been stated that the office of this Court being open on 27th Oct. 1984, the application for certified copy should have been filed on that date and such aspect of the case, has not been considered by the Stamp reporter. It has also been pointed out, that the views of the Stamp reporter that after the period of presentation of appeal expires on a day on which the Court is closed and if the appellant applies for copies of decree and judgment on the date of reopening, while his right of appeal is still alive by virtue of Section 4 of the Limitation Act, he is entitled to the benefit of Section 12 of the said Act and if his appeal is presented on the day he gets the copies or even on the next day, the same would not be barred by limitation, was wrong and erroneous. Such view has also been claimed to be not tenable either in fact or in law and according to the deponent, the appellants in the instant case, would not be entitled to any deduction from the period of limitation, of the period spent in obtaining certified copy of the order, against which the appeal has been presented. It has also been stated that since the offices of this Court reopened on 27th Oct. 1984, both the appeal as well as the application for certified copy could have been filed on that date and as such, the appellants were not entitled to any relief on the basis, that the first available day for filing the appeal and/or the application for certified copy was 29th Oct. 1984, on which date the judicial business of this Court commenced on the reopening after the long vacation. It has also been pointed out that inan appeal like the present one, filing of certified copy is not a must or necessary, on the other hand, such appeal is required to be filed in the concerned department of this Court, which being open on 27th Oct. 1984 that date should be treated as the first available date for such filing after vacation. It has further been stated that even assuming but without admitting that 29th Oct. 1984, was the first available date after the vacation, the period of limitation had in any event expired earlier and within the vacation, because there was or has been no extension of the period of limitation under Section 4 of the Limitation Act, which only enables a party to institute an appeal on the first day of the reopening of the Court, even if the period expires within the period of the vacation. It has been stated categorically, that there being no extension of the period of limitation under Section 4 of the Limitation Act, the benefit of Section 12 cannot be available in this case, by reasons of application for certified copy having been filed on 29th Oct. 1984, which was the date after expiry of the period of limitation and in any event, the provisions of Section 4 cannot be taken recourse to, for the purpose of getting the benefit of Section 12, in adjusting against the period of limitation, the time taken for obtaining the certified copy. It was also the case of the deponent that once the time i.e. the period of limitation has completely run out, there can be no question of any adjustment of the time, taken in obtaining certified copy. It has further been pointed out that the Stamp reporter has apparently proceeded on the basis that the exclusion of the time requisite for obtaining certified copy of the order appealed from, was available up to the point of time on which the right to prefer the appeal subsisted and since, however, such exclusion was to be made on computing the period of limitation for an appeal, the same would be permissible only up to the last point of limitation and not up to any further point of time or beyond the period of limitation.

10. There were two affidavit-in-replies dt. 9th Feb. 1985 and 11th April 1985, both filed by Shri Darika Nath Basu Mullick, the Co-operative Development Officer, attached to the office of the Assistant Registrar of Cooperative Societies, Calcutta Government of West Bengal. In those two affidavits, the material allegations as contained in the affidavit-in-oppositions have been denied andit has been reiterated that the appeal was, in fact, filed out of time by four days and sufficient explanation has been put forward, showing why and under what circumstances, the appellants could not prefer the appeal within time. It has been stated that in any event, for the delay in filing the appeal, there has been no laches on the part of the appellants and for any laches or defects in the matter of dealing with the case by the learned Advocate or his clerk, the appellants should not be made to suffer.

11. From the certified copy, which has been annexed with the memorandum of appeal, it would admittedly appear that the date of application for the same was 29th Oct.1984. the date fixed for notifying the requisition number on stamps and folios was 8th Jan.1985, they were put in on that date, and the appeal was presented on 15th Jan. 1985. The requisite stamps and folios were delivered and the certified copy was ready for delivery on 11th Jan. 1985, there is also no dispute that the order as impeached was made on 25th Sept. 1984 and on 26th Sept. 1984, the Court was open and the same was closed for the Puja vacation on 27th Sept. and on the expiry of such vacation, the Court admittedly reopened on 29th Oct. 1984, which was a Monday and itsoffices had opened on the earlier Saturday, which was 27th Oct. 1984. As indicated earlier, the certified copy was applied for on 29th Oct. 1984. It should also be noted that there is no statement in the petition that on 27th Oct. 1984, when the offices of the Court were open, there was none to receive the application for certified copy and under the practice and procedure, such application for certified copy, is not required to be accepted by a Judge. In fact the same is accepted by the office.

12. Mr. Chakraborty, after placing Section 4 of the Limitation Act, 1963, stated that the same no doubt makes provisions for filing a time barred appeal and even if the provisions of the said section according to him, were permissive, that would not enure to the benefit of the applicants in this case, since the period of limitation had in the instant case expired earlier within the vacation, because there was no extension of such period under Section 4 and he further contended that provisions of Section 4 cannot be taken recourse to, for the purpose of getting the benefit of Section 12 in adjustingagainst the period of limitation, the time taken for obtaining certified copy. It was his further claim that once the time i.e. the period of limitation has completely run out or exhausted there cannot be any question of adjustment of the time taken in obtaining the certified copy. In support of his submissions he firstly, referred to the case of Maqbul Ahmed v. Onkar Pratap Natain Singh AIR 1935 PC 85. In that case, it has been observed that where there is ground for excluding certain periods under Section 14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and 20 days ought to be excluded in order to determine when the prescribed period expires, 20 days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained, apart from holding, that what Section 4 provides is that, where the period of limitation prescribed expires on a day when the Court is closed, the application may be made on the day when the Court reopens, that means the proper Court in which the application ought to have been made. Then, he referred to the case of Bansi Dhar v. Firm Bajrang Lal Mahabir. : AIR1976Delhi107 , where it has been observed that the question whether the vacation period intervening between the dates of the impugned order and the copy application can be excluded as time requisite has been resolved by the Explanation to Section 12. Section 4 of the Limitation Act (sic) prescribed period expires on a day when the court is closed, (the matter) may be instituted on the day when the court reopens. Section 10 of the General Clauses Act also makes a provision enabling the parties to take steps which they could have taken on a holiday, on the next working day. Neither Section 4 of the Limitation Act nor Section 10 of the General Clauses Act has the effect of extending the period of limitation. It is only an enabling provision which entitles the party to do on the reopening of the Court what it was required to do at a time when the court was in vacation. The period of vacation is unlike provision in Chap. III of the Act not excluded from the period of limitation, but it only enables the party to take over the period of vacation and perform the requisite act on the reopening day of the court.On the basis of the above decisions, Mr. Chakraborty categorically contended that since in the instant case, there has been no extension under Section 4 and the certified copy of the judgment as impeached, was not applied for within the period of limitation, so the appellants will not be entitled to any benefit or condonation, as claimed. Thereafter, Mr. Chakraborty made a reference to the case of Krishna Kumar Khemka v. Jagadish Narayana Bham, : AIR1971Cal322 , where it has been observed that time taken for obtaining a certified copy of order or decree cannot be excluded when application for certified copy is filed after expiry of limitation and an applicant for review cannot plead sufficient cause for not presenting the memorandum of review within time on the ground that he was misled by a conflict of decisions of different High Courts in computing limitation under Section 124, when the matter has been settled by the decision of the Supreme Court. On the basis of the above determinations also, Mr. Chakraborty claimed that the appellants will not be entitled to any benefit or condonation as they have applied for the certified copy after the period of limitation and there has been no extension under Section 4.

13. On the basis of the above, Mr. Chakraborty claimed that the limitation should certainly be held to be more than four days and that being the position, the report by the Stamp Reporter was wrong and according to him, the Stamp Reporter was further wrong in making the determinations on the basis of the observations in the case of Bhaya Lal Saha v. Smt. Renu Bala Dey (1972) 76 Cal WN 778 (supra) and that too, in view of the statements as contained in para 7 of the first affidavit-in-opposition dt. 7th Feb., 1985, the particulars whereof have been indicated hereinbefore.

14. Mr. Chakraborty alternatively stated that even if the Stamp Reporter was right and delay in the instant case in presenting the appeal is found to be four days, such delay cannot be condoned, as no case for such condonation has been made out. The pleadings of the appellants for the purpose of establishing sufficient cause, through their application and their affidavits so also the supplementary affidavit of the clerk concerned, have been indicated hereinbefore. After placing all the pleadings, Mr. Chakraborty claimed that therehas in fact, been no diligence established and in fact, the pleading of the story, that the clerk concerned and so also his master had left Court on 11th Jan., 1985, which was a Friday, is not an explanation, but in fact, by such statement, no diligence has in fact been established. The explanations as sought to be given now, have been claimed by Mr. Chakraborty to be afterthoughts.

15. In reply, Mr. Das stated that the effect of Section 4 of the Limitation Act being indirectly to extend the period of limitation, the time limited by law would, therefore, be the time prescribed by the relevant Article, as extended or enlarged by Section 4 and that being the position, he on a reference to the observations in the case of Smt. Kamala Sundari Dassi v. Sridam Chandra, : AIR1954Cal569 , stated in the facts and circumstances of the case, the appellants would be entitled to the benefits of section 4 and thus to have the delay in the instant case condoned. In that case, it has been observed that the whole effect of Section 4, Limitation Act is indirectly to extend the period of limitation, The time limited by law would, therefore, be the time prescribed by the relevant Article, as extended or enlarged by Section 4. Therefore, the time limited by law for making the application contemplated by Order 22, Rule 4, Sub-rule (1), Civil P.C. is the time prescribed by Article 177, Limitation Act, as extended by Section 4 of the same Act, that is to say, as extended up to the day on which a Court is first available, when the period of limitation expires during a time that the Court is closed. If, therefore, an application under Order 22, Rule 4(1) is made on the day on which a Court is first available, no question of the appeal having abated under Order 22, Rule 4(3) arises. Thereafter, Mr. Das then referred to the Division Bench judgment in the case of Akhtari Bibi v. Rajlakshmi Debi (1955) 59 Cal WN 684, which has laid down that Section 4 of the Limitation Act states that where the period of limitation prescribed for any suit, appeal or application expires on a day when 'the Court is closed', the suit, appeal or application can be instituted, preferred or made on the day that the Court reopens. It would be legislating and not interpreting if for the words 'the Court is closed', the words are read 'the office of the Court is closed' and every application to the Court is to be presented to the Judge of the Court, but in fact for the sake of convenience presentationis made to officers of the Court, who are really doing the manual work of receiving as the hands of the Court. If the Court is closed, so that the Judges are not present, the mere fact that some officers are present cannot give them the right and duty to receive such documents. On the basis of the observation as above, Mr. Das further contended that his clients have been able to make out the case for condonation and in any event, while dealing with an application under Section 5 and that too in the facts and circumstances of the present case, the Court must take a liberal view.

16. Mr. Banerjee adopted the arguments of Mr. Das and in support of the liberal view to be taken and liberal constructions to be made or given in respect of the provisions of the Limitation Act and for making substantial justice, he referred to the case of Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi : [1978]2SCR839 . In that case, the principles for condoning the delay in filing appeal have been discussed and laid down and while laying down the principles it has been observed that in dealing with question of condoning the delay under Section 5 of the Limitation Act the party seeking relief has to satisfy the Court that it had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. It is not possible to lay down precisely as to what facts or matters would constitute sufficient cause under the section but those words should be liberally construed so as to advance substantial justice where no negligence or any inaction or want of bona fides is imputable to the party; that is, the delay in filing the appeal should not have been for reasons which indicated the party's negligence in not taking necessary steps which he would have or should have taken. Discretion is conferred on the High Court before which an application for condoning the delay is made and if the Court, after keeping in view relevant principles exercises Us discretion granting relief, unless it is shown to be manifestly unjust or perverse, this Court would be loathe to interfere with it. It was Mr. Banerjee's specific submissions that while dealing with an application under Section 5 of the Limitation Act some discretion is left with the Court formaking substantial justice and to see that a party should not suffer for the negligence of his lawyer. Here in the instant case, Mr. Banerjee stated that if at all. the appellants have suffered or are suffering because of the negligence of their learned Advocate and for that, they must not be made to suffer and if necessary, their application may be allowed after awarding substantial costs in favour of their adversaries. Further reference was made by Mr. Banerjee to the case of Bijanlata Bassak v. Bhudhar Chandra Das, : AIR1955Cal578 . In that case, it has been observed that ignorance of lawyer as to practice, would be a sufficient cause under Section 5 of the Limitation Act and while dealing with sufficient cause, in another case of Kshetramoni Dasi v. Surendra Mohan Kundu, : AIR1955Cal553 , to which Mr. Banerjee made a reference. In that case, it has been observed that mistaken or wrong advice by pleader can also be considered as sufficient cause for condoning the delay in 'appropriate cases. In fact, we are of the view that the last two cases as cited at the Bar, would not be relevant for our purpose.

17. Whether a Court is or is not 'closed' within the meaning of Section 4 is in each case a question of fact and must be taken as observed in the case of Gurubox Singh v. Sohan Lal, : AIR1952Cal542 , on the practice which prevails in the particular Court. It has also been observed by the celebrated decisions that a Court is said to be closed even though the Judge holds Court on the Gazetted holidays. There may be a case where though the Court offices may be actually opened during the vacation for the other work, if there is no one lawfully required to be present for the purpose of receiving a plaint or a petition or appeal or application, the Court as observed in Akhtari Bibi v. Rajlakshmi Debi (1955) 59 Cal WN 684 (supra), will be held to be closed for the purpose of section 4. But if the offices of the Court are open during the holiday and there is also a Judge and also an Officer or a clerk of the Court for the purpose of accepting the plaint, appeals and applications, the Court cannot be said to be closed within the meaning of Section 4 and all plaints, appeals and applications, which are or to be barred during the vacation should be presented before the period of limitation actually expires and if they are not presented till the Court fully reopens after the vacation, it cannot bepleaded that the Court was closed at the time they should have been presented in the course of things. It should of course be remembered that in Akhtari Bibi v. Rajlakshmi Debi (supra), it has been held that offices of the Court are not the same thing as the Court. It would be legislating instead of interpretating if for the words 'the Court is closed' are read the words 'the office of the Court is closed'. So an application filed on the day when the Court as a whole reopened was held not to be barred by limitation though the offices remained open earlier by an order of the Registrar.

18. Mr. Gupta claimed that the determinations in : AIR1954Cal569 , would be distinguishable in the facts of this case and similar submissions were put forward by him in respect of the decision in (1955) 59 Cal WN 684. While on that case, Mr. Gupta further pointed out that since, for entertaining an application for a certified copy, the presence of a Judge or a Court is not necessary, which may sometimes be necessary at the time of or in the matter of presentation of a plaint, filing of applications and other proceedings, so, the said determination in (1955) 59 Cal WN 684, would not also apply in this case, as admittedly, applications for certified copies are entertained by the office or the officers of the Court and not by a Judge or a Court and furthermore when, there is no statement available in this case, that on 27th Oct., 1984, when the office of the Court had admittedly reopened, there was no officer of the Court available either to entertain or to accept the application for certified copy.

19. The Limitation Act, 1963 is an Act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith and the same was enacted amongst others for consolidating and amending the law relating to the limitation of suits, appeals and certain applications to Courts and Part-Ill of the same deals with computation of the period of limitation and Section 12 of the Act, which is in the said Part-III, on analysis postulates amongst others that (1) ..... (2) In computing the period of limitationprescribed for an appeal, the following periods shall be excluded : -- (a) the day on which the period begins to run; (b) the day on which the judgment was pronounced; (c) the time requisite for obtaining a copy of the decree,sentence or order; (d) the time requisite for obtaining a copy of the judgment, (3) .....14)..... and (5)..... The Rules as tocomputation of period of limitation as laid down in Part-III, as observed in Durga v. Pancham, AIR 1939 All 403 (FB) are not intended by the legislature to apply only to periods of limitation prescribed by the schedule, but apply also to periods of limitation provided for by other enactments. Under the Rules relevant for appeals from the concerned order, the appellants could have preferred the appeal within the prescribed period of 30 days, even without the certified copy, as in appeals of the present nature, the filing of certified copy of the judgment and order is not a must. But the difficulty has been created by preferring the appeals with the certified copy and particularly when, the application for the same was made on 29th Oct., 1984. when admittedly, the offices of the Court were open on 27th Oct., 1984 and there is no statement that the offices of the Court were not really open on that date and furthermore, there was no officer of the Court to accept or receive the application for the concerned certified copy. The submissions as advanced by Mr. Gupta to the above effect were also advanced in the case reported in (1955) 59 Cal WN 684 and if we are not wrong, practically on the same line and even then, the learned Judges of the Division Bench have determined in the manner as indicated hereinbefore and we also find no justifiable reason to disagree with such findings. As such, we hold that the appellants could apply for the certified copy of the order on 29th Oct. 1984. when the Court reopened.

20. Then, we are left with the consideration of the explanation in respect of the delay of four days. The explanations as put forward, do not establish due diligence and much confidence. But, since the delay is only about four days, we think for ends of justice, that may be condoned subject of course on payment of appropriate and substantial costs.

21. Thus, we direct that the application will be allowed and the delay in filing the appeal will be condoned and the appeal will be registered, if the appellants pay to Mr. Chakraborty's clients, costs assessed at 50 G.Ms. Since Mr. Banerjee's clients have supported the appellants, they should not get the costs as awarded.

22. The application is allowed.

23. Stay of operation of the order, as prayed for, is refused.

Amaredra Chandra Sengupta, J.

24. I agree.


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