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Pramatha Nath Roy Vs. W.A. Lee - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal374,52Ind.Cas.582
AppellantPramatha Nath Roy
RespondentW.A. Lee
Excerpt:
limitation act (ix of 1908), sections 5, 12, schedule i, article 161 - appeal from original side filed beyond limitation--copy applied for after expiry of limitation--time spent m obtaining copy, whether can be allowed--extension of time--sufficient cause--calcutta sigh court original side rule, ch. xvi, rules 7, 27, ch. iv, rule 9, ch. xxxii, rule 22(4). - .....the defendant. on 3rd may, on the defendant undertaking not to apply for any further extension of time, the time for furnishing security was extended by the court for one week, i.e., to the 10th. again the defendant tendered a security which was rejected by the registrar. the defendant gave notice of an application further to extend the time; but this application appears to have been proceeded with. on 26th july a second application for the setting aside of the decree was refused by mr. justice greaves. on 5th august 1918 the plaintiff applied to have this order drawn up. the draft order was served upon the defendant on 7th august 1918 and was returned approved by his solicitor on the 16th. the master fixed 20th august for the consideration of the order by the parties and, on 28th.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal by the defendant P. N. Roy against an order made by Greaves, J., sitting on the Original Side of the Court, which was dated the 26th July 1918, whereby the learned Judge refused the application of the defendant.

2. This application was for an order that the Registrar should be at liberty to receive from the defendant the sum of Rs. 27,000 as security furnished by the defendant, and that thereupon the ex parte decree (dated the 14th February 1918, which was conditionally set aside by an order dated the 23rd March 1918, might be set aside, and the defendant's defence restored in the suit.

3. The main question arising in this appeal is whether the appeal is barred under Clause 151 of the First Schedule of the Indian Limitation Act of 1908.

4. In order to make the point intelligible it is necessary to state certain material dates.

5. On the 24th June 1916 the plaint in the suit was filed: the plaintiff claimed Rs. 27,443-2-0 in pursuance of an agreement dated the 24th June 1913. After a peremptory order had been made that defendant should file a written statement, the defence was. filed or 9th February 1917.

6. On the 8th February 1918 Greaves, J., ordered that the defence should be struck out as the defendant had failed to give inspection of his documents.

7. On the 14th February 1918 an ex parte decree was made in favour of the plaintiff for Rs. 27,443-2-0.

8. On the 23rd March 1918 it was ordered that upon the defendant on or before the 10th of April furnishing security to the satisfaction of the Registrar for Rs. 27,000 and paying to the plaintiff's Attorneys certain costs, the decree of the 14th February 1918 should be set aside and the suit should be restored for hearing.

9. On the 26th April 1918 the time for furnishing security was extended by order of the Court to 30th April 1918. In default the decree was to stand confirmed.

10. By an order dated the 3rd May 1918, the defendant, upon certain terms therein specified, was allowed one week's time from the date of the order to satisfy the Registrar as to the sufficiency of the security already offered.

11. On the 7th May 1918 the Registrar again refused to accept the security offered by the defendant.

12. On the 1st July 1918 notice of the application, already referred to, for setting aside the ex parte decree was given, and a petition by the defendant of the same date was filed.

13. On the 28th July 1918 this application was heard by Greaves, J., and refused.

14. On 30th August 1918, the defendant filed a memorandum of appeal. It was stated in Court on behalf of the plaintiff, and not denied by the defendant's learned Counsel, that an application was made on behalf of the defendant on the 30th August 1918 to Chaudhuri, J., who was sitting on the Original Side, and that such application was made about 5 p. m., at any rate at some time after the Court of Appeal had risen.

15. The application was for leave to file the memorandum of appeal without copies of the two orders: such copies should have accompanied the memorandum of appeal, see Chapter XXXII, Rule 3 of the Rules of the Court, Original Side.

16. August 30th was the last day on which the Court sat before the vacation.

17. The learned Judge granted leave to the defendant to file the memorandum of appeal, but it was stated in Court and not denied that such leave was given subject to any objection which might be taken on behalf of the plaintiff.

18. On the 2nd September 1918 execution of the decree was stayed by an order of Fletcher, J., one of the Vacation Judges.

19. The memorandum of appeal purported to be an appeal not only against the order of the 26th July 1918, but also against the decree of 14th February 1918 and the order of the 23rd March 1918.

20. On the 9th September 1918 the Acting Registrar painted out to the defendant's Attorney that the appeal was out of time as regards the decree of 14th February and the order of 23rd March.

21. On the 12th September 1918 the defendant's Attorney wrote the following letter:

No. 1210. 12th September 1918,ToThe Registrar,High Court, (O.S.),Calcutta. Dear Sir,Appeal No. 70 of 1918.Suit No. 706 of 1916.P.N. Roy--AppellantversusW.A. Lee--Respondent. You consider the appeal against the ex parte decree dated the 14th February 1918 and the order dated the 23rd March 1918 as barred by limitation. As I am advised by Counsel that they are not barred, I crave leave to argue the matter before the Appellate Court.

Subject to the above, I initial the alterations made in the grounds of appeal on page 2 thereof.

A copy of this letter may be served with the notice of appeal to be issued herein. Yours obediently,P.N. Sen.

22. Consequently the memorandum of appeal was altered by striking out the decree of the 14th February 19l8 and the order of 23rd of March 1918.

23. The memorandum of appeal, therefore, remained as an appeal from the order of 26th July 1918 only.

24. The question whether the appeal was out of time, as regards the decree of the 14th February 1918 and the order of 23rd March 1918, has not been raised before this Court on the hearing of the appeal, and we have, therefore, only to deal with the question whether the appeal is out of time as regards the order of 26th July 1918.

25. Clause 151 of the First Schedule to the Limitation Act, 1908, provides that in the case of an appeal from an order of the High Court of Judicature of Fort William in the exercise of its original jurisdiction the period of limitation is twenty days, and that the time begins to run from the date of the order. Consequently in this case, the order having been made on the 26th July 1915. the period of limitation began to run from that date, and it would expire on the 15th August 1918.

26. The memorandum of appeal was not filed until the 30th August 1918 and prima facie it was out of time. But on behalf of the defendant reliance was placed upon Section 12 (2) of the Act.

27. That section provides that in computing the period of limitation prescribed for an appeal...the time requisite for obtaining a copy of the...order appealed from shall be excluded.

28. The question is, whether the period from the 15th August 1918 to the 30th August 1918, viz., a period of 15 days, can be said to have been time requisite for obtaining a copy of the order appealed from.

29. No application was made on behalf of the defendant for a copy of the order now under appeal, until the 9th September 1918: Stamps were paid on the 10th September, and he obtained a copy on the 12th September.

30. It is not the practice at the present time for the Court to draw up an order until it is applied for by a party: Chapter XVI, Rule 27, is as follows:

No decree or order shall be drawn up until applied for by a party. The application, therefore, shall be made by the requisition in writing of the party in whose favour the decree or on whose application the order was made, or, in default of his applying within four days from the date of the decree or order, by any party within one month there-after.

31. In case any decree or order is not applied for within the last mentioned time, the Registrar may decline to draw up the same without the leave of the Court or a Judge.

32. It was argued on behalf of the plaintiff that the order of 26th July 1918 was made on the application of the defendant and that thereupon in pursuance of this rule he could have applied to the Court for a copy of the order any day, after the 26th July 1918, or that at any rats the defendant could have applied for a copy of the order, in default of the plaintiff applying within 4 days from the data of the order; and that if the defendant desired to appeal against the order, it was his duty to get the order drawn up in accordance with the rule.

33. On the other hand it was argued on behalf of the defendant that a period between the 7th August and 3rd September should be excluded from the period of limitation as time which was requisite for obtaining a copy of the order under the following circumstance':

34. It appears that about the 5th or 6th August 1918 the plaintiff applied to the Court to have the order drawn up. The date does not appear from the documents before us, but it was stated in Court that it was on the 5th or 6th. On the 7th August 191b the draft order was sent to the defendant's Attorney: it was approved by the defendant's Attorney on the 16th August 1918: thus a period of nine days was taken for approving the draft order:

35. In my judgment, this was unreasonable and unnecessary delay; the order was a short and simple one, and no explanation has been given of this delay.

36. The order was signed by the Master on the 28th August and it was filed on the 3rd September by the plaintiff.

37. The defendant's learned Counsel argued that the period from August 7th to September 3rd should be excluded: As I understand his argument, it was that the defendant could not obtain a copy until the order was filed on the 3rd September, and that, as the order was being drawn up by the plaintiff, there was no necessity for the defendant to take any steps to have the order drawn up and filed so that be could appeal within the specified time, and that, therefore, this was time requisite for obtaining a copy of the order.

38. I am not prepared to accept this argument. In the first place the plaintiff did not make any application for drawing up the order until the 5th or 6th August, some ten or eleven days after the order was made, and to say the least the defendant could at any time after the 30th July 1918, when four days had elapsed from the date of the order, have applied to have the order drawn up.

39. He made no such, application, and he did not even apply for a copy of the order until the 9th September 1918, six days after the order was filed, and indeed when the defendant's Attorney had received the draft order on the 7th August he did not approve it until the 16th August after a lapse of nine days, and after the twenty days allowed for appealing had expired. A period of fifteen days, i. e., from the 15th August until 30th August has to be accounted for, and the defendant has not made out to my satisfaction that such period was requisite for obtaining a copy of the order. In my judgment, if the defendant desired to appeal from the order he should have applied to have the order drawn up and for a copy of the order in accordance with the Rules of the Court, which he did not do. If he had done so there is nothing to show that fifteen days would have been requisite for obtaining a copy of the order.

40. In addition it is to be noted that on the 30th August 1918, the that day of the sittings and after the usual Court hours and after the Court of Appeal had risen, the defendant obtained leave from the learned Judge on the Original Side to file his memorandum of appeal without a copy of the order; no explanation has been given why this was left to the last minute, so to speak, in the manner above mentioned: and if it was necessary for him to obtain such leave, there was nothing to prevent him from making his application before the period of limitation had expired.

41. For the above mentioned reasons in my judgment the memorandum of appeal was filed out of time and this appeal is barred by the Limitation Act.

42. There was a further point raised by the learned Counsel for the plaintiff, viz., that the defendant had not complied with the rules relating to the preparation and filing of the paper-book, and consequently that this appeal should not be heard. It is not necessary to decide this point in view of the conclusion already arrived at.

43. Finally, it was urged on behalf of the defendant that the Court should admit the appeal under Section 5 of the Limitation Act after the prescribed period of limitation.

44. The defendant has not satisfied me that he had any sufficient cause for not preferring the appeal within the prescribed period, and consequently, in my judgment, this appeal must be dismissed with costs.

Chitty, J.

45. On 24th June 1916 the plaintiff instituted this suit against the defendant to recover a sum of Rs. 27,443-2-0, said to be due under an agreement dated 24th June 1913. The plaintiff also asked, if necessary, for an account. On 2nd February 1917 a peremptory order was made upon the defendant to file his written statement within a week, with which order he complied on 9th February. In consequence of failure by the defendant to give inspection of his documents on 8th February 1918 Mr. Justice Greaves ordered that the defence should be struck oat On 14th February 1918 a decree was passed in favour of the plaintiff for the amount claimed. It is stated, but not admitted, that the defendant and his solicitor were present in Court At any rate the defendant appears to have taken no part in that day's proceedings. On 8th March 1918 a notice was given by the defendant that he would apply to set aside the decree. On 23rd March Mr. Justine Greaves ordered that the decree would be set aside if the defendant furnished security to the satisfaction of the Registrar for the amount of the claim by 10th April 1918. The time for furnishing security was by subsequent orders, the last being of 26th April 1918, extended to 30th. This order was peremptory. On the 29th the Registrar rejected the security offered by the defendant. On 3rd May, on the defendant undertaking not to apply for any further extension of time, the time for furnishing security was extended by the Court for one week, i.e., to the 10th. Again the defendant tendered a security which was rejected by the Registrar. The defendant gave notice of an application further to extend the time; but this application appears to have been proceeded with. On 26th July a second application for the setting aside of the decree was refused by Mr. Justice Greaves. On 5th August 1918 the plaintiff applied to have this order drawn up. The draft order was served upon the defendant on 7th August 1918 and was returned approved by his solicitor on the 16th. The Master fixed 20th August for the consideration of the order by the parties and, on 28th August 1918, the order was signed by the Master. On 30th August, the last day of the term, after 4-30 p.m. the defendant appeared before Mr. Justice Chaudhuri and asked leave to file a memorandum of appeal against the decree of 14th February 1918, the order of 23rd March 1918 and the order of 26th July 1918 without office copies of the two orders. The ground stated in the affidavit of Mr. P. N. Sen, the defendant's Attorney, with reference to the order of ,26th July 1918 was that it was completed on 28th instant by the plaintiff's Attorneys., who having not yet filed the same an office copy thereof could not be obtained. The Court permitted the memorandum to be filed. It does not appear from the minutes but it is conceded on both sides that that order was subject to any objections which might be raised thereafter. On 3rd September 1918 the order of 26th July 1918 was filed at the instance of the plaintiff. On 9th September 1918 the defendant applied for a copy of that order. He furnished the requisite stamp on the 10th and the copy was supplied to him on the 12th. A question had arisen before the Registrar as to the appeal against the decree and the first of the two orders being within time; and on that day Mr. P. N. Sen for the defendant struck out of his memorandum of appeal the words 'the decree made on the 14th day of February 1918' and 'the order made on the 23rd day of March 1918'. The appeal thus stood from that day as an appeal only against the order of 26th July 1918. The question for our determination is whether this appeal was filed within time. A further question arises whether having regard to the laches of the defendant in preparing and filing his paper-book, the appeal should not be dismissed on that ground also.

46. Under Article 151 of Schedule I of the Limitation Act the time for filing an appeal from an order of a High Court in the exercise of its original jurisdiction is twenty days from the date of the order. That time expired on 15th August 1918, and unless the appellant is entitled for some reason or other to have the time extended, his appeal which was filed on 30th August is clearly out of time. It was argued by Mr. Sircar on his behalf that he was entitled under Section 12 of the Limitation Act to exclude the time requisite for obtaining a copy of the order appealed from. This contention is, in my opinion, unsound for two reasons. In the first place, an appellant cannot be permitted to avail himself of this provision, unless he satisfies the Court that be has exercised due diligence towards obtaining the copy. Here admittedly the appellant did nothing in this behalf until 9th September 1918 when he applied for a copy and even then he did not furnish the requisite stamp until the following day. It was argued that he could not pro-cure a copy until the order was filed and that as on 7th August 1918 he learnt that the plaintiff was taking steps to have the order filed, it was useless for him also to take steps in the matter. In my opinion this excuse is worthless. A litigant on whom the law of procedure lays some duty or obligation cannot be heard to say that he is absolved, wholly or in part, because his opponent is doing something which may possibly save him the trouble. Here no doubt the appellant could not in the ordinary course obtain an office copy of the order until it was filed (See High Court Rules, Chapter IV, Rule 9). But it was his duty at any rate after 30th July 1918 to have it drawn up. (Chapter XVI, Rule 27). It was all the more incumbent upon him to do so and to have the order filed without delay if he was intending to appeal from the order. The appellant, however, took no steps whatever to expedite the filing of the order. His Attorney retained the draft for nine days before he approved it. Then again after the order was filed on 3rd September be waited six days more before he applied for an office copy. It is unnecessary to discuss the cases which were cited to us on either side. The question must be decided on the Limitation Act and the Rules of this Court on the Original, Side. On principle I would hold that an appellant who has not within the period of limitation applied for a copy of the order appealed from, and who has within that period taken no steps whatever towards procuring such copy, cannot be allowed after the period of limitation has ran out to claim exclusion of time requisite for procuring such copy.

47. There is in this case a further reason for holding the appeal to be out of time. On 30th August the appellant applied for and obtained leave to file his appeal without an office copy of this order. This exemption was granted by Mr. Justice Chaudhuri under Chapter XXXII, Rule 22 (6). In these circumstances no question of procuring an office copy arises. It was open to the appellant to have preferred this application and obtained the exemption on 15th August or before. Indeed, before the period of limitation had expired, his application would have some with greater force. There was no reason whatever for his allowing the period of limitation to go by without making that application. When he did so the appeal was already out of time.

48. At the close of the arguments it was suggested that we might exercise our powers under Section 5 of the Limitation Act and admit the appeal though out of time; but in order to obtain that indulgence, the appellant must satisfy the Court that he had sufficient cause for not preferring his appeal within the prescribed period. Here he has shown not only no sufficient cause, but no cause whatsoever.

49. It is unnecessary to consider the question of the appellant's laches, if any, in the preparation and filing of his paper-book. I would dismiss the appeal with costs.


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