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State of W.B. Vs. Midnapore Commercial Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 4 to 10 of 1976 (S.C.A.) (Limitation) in S.C.A.T. Nos. 868 to 874 of 1975
Judge
Reported inAIR1978Cal358,82CWN623
ActsLimitation Act, 1963 - Section 12(2) and 12(3) - Schedule - Article 132; ;High Court Criminal Rules and Orders - Rules 322 and 323; ;High Court Appellate Side Rules - Rule 26
AppellantState of W.B.
RespondentMidnapore Commercial Co. Ltd.
Appellant AdvocateS.K. Acharyya, Adv. General and ;Nani Gopal Das, Adv.
Respondent AdvocateSatyapriya Ghosh and Bhudeb Bhattacharya and ;Monica Mitra, Advs.
Cases ReferredIn Jairaj Prasad v. Om Prokash
Excerpt:
- .....case the relevant dates are as follows :19-6-74--the date of judgment appealed from. 24-6-74--the date of application for copy of judgment, 4-9-74 -- the date of signing of the decree. 13-9-74 --the date fixed for notifying the stamps and folios. 25-9-74--the date of delivery of stamps and folios. 27-11-74 -- the date on which the copy was made ready for delivery. 3-12-74 --the date of application for decree. 5-2-75 -- the date fixed for notifying the stamps and folios. 7-2-75--the date of delivery of stamps and folios. 20-2-75--the date on which the copy was ready for delivery. 11-4-75-- the date of filing of applications under article 133(1) of the constitution of india.16. it appears that there has been a total confusion in this matter on the part of the appellant in computing the.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This reference has been made by a Division Bench consisting of Mr. Justice P. K. Banerjee and Mr. Justice Rule K. Sharma under Rule 1 proviso (ii) Chap. II of the Appellate Side Rules. Rule 26 of Chap. XIII of the Appellate Side Rules provides:

'If the stamps and folios are not filed within seven days of the notification in the prescribed Register, the application shall be rejected by the Registrar or other officer of the Court.'

Similarly, Rule 323 of Chap. 17 of the Criminal Rules and Orders, Vol. 1 provides:

'If the requisite stamps and folios are not filed within three days of the notification in the prescribed manner, the application shall be rejected and a note to that effect shall be made in the Register No. (R) 16'.

2. The application before the Division Bench was an application for leave to appeal to the Supreme Court under Article 133(1) of the Constitution of India. It is common case that the application was not made within sixty days from the date of the judgment and decree as required under Article 132 of the Limitation Act, 1963. The questions that arose before the Division Bench related to periods of exemption that the applicant was entitled to in computing the period of limitation.

3. There were two questions which the Division Bench had to consider. These questions were:

1. Whether in computing the period of Limitation the applicant was entitled to advantage of seven days specified in Rule 26 of Chap. XIII of the Appellate Side Rules.

2. Whether the applicant was entitled to exemption of periods taken both for obtaining a certified copy of the judgment and for obtaining the certified copy of the decree as required under Section 12(3) of the Limitation Act, 1963.

4. So far as the first question is concerned, there was a judgment of a learned single Judge of this Court as also a judgment of the Division Bench, which we shall presently refer to, holding that in appropriate cases an applicant was entitled to exemption of the entire period mentioned in Rule 26 of Chap. XIII of the Appellate Side Rules or Rule 323 of Chapter 17 of Criminal Rules and Orders, Vol. 1.

5. With this view of this Court as expressed earlier Mr. Justice P. K. Banerjee and Mr. Justice R. K. Sharma could not agree. That is why this particular reference has been made.

6. On the second question, however, there is no difference of opinion but we assume for the sake of convenience that that question has also been referred to a larger Bench.

7. Let us deal with the second question first.

8. There are two judgments of this Court which are apposite in this connection. There is a Division Bench judgment in Rajani Nath v. Kalimohan Das, reported in 21 Cal WN 217 : (AIR 1917 Cal 619 (1)). The Division Bench has held that under Section 12 Clauses (2) and (3) of the Limitation Act. 1908, an appellant is entitled to a deduction of the time requisite as well for obtaining a copy of the decree as for obtaining a copy of the judgment, and if he has applied for copies of the judgment and decree at different times, both these periods should be excluded in computing the period of limitation allowed for presenting the appeal, unless the two periods overlap partially or entirely in which case the appellant is not entitled to have a deduction of the same time twice over.

9. There is also another judgment of a learned single Judge in Girish Chandra v. Narayan Chandra, reported in (1937) 65 Cal LJ 415. This judgment was delivered by Mr. Justice R. C. Mitter. In this case the judgment was pronounced on the 29th April. 1935 and the decree was signed on the 3rd May, 1935. An application for a copy of the judgment was made on the 9th May, 1935 and the copy was ready for delivery on the 15th May, 1935. The application for a copy of the decree was made on the 21st May, 1935 and the copy was ready on the 27th May, 1935. The appeal was filed on the 13th June, 1935. Mitter, J. has held that the appeal was presented within the time as the appellant was entitled to exclude for the purpose of computing the period of limitation both the period of time taken for obtaining the copy of the judgment and the period taken for obtaining the copy of the decree. The two several periods did not overlap each other.

10. It is therefore settled law that an appellant in computing the period of limitation for his appeal is entitled to exclusion both of the time required for obtaining a certified copy of the judgment and the period required for obtaining a certified copy of the decree. But in claiming these exemptions he is not entitled in case of over-lappings to deduction of any period twice over. We answer the second question referred to us accordingly,

11. We now go back to the first question. In Jairaj Prasad v. Om Prokash, reported in (1975) 79 Cal WN 553 Mr. Justice A. K. De had granted exemption of the entire period referred to in Rule 323 of Chap. XVII of Criminal Rules and Orders. The petitioner before the learned Judge filed an application for the copy of an order passed on April 11, 1974 on the same date. The department informed that the requisite stamp folios were to be filed by the 13th April, 1974. The petitioner filed the folios on April 18, 1974. The copies were made ready on April 20, 1974. The petitioner was advised by his advocate in the trial court that he was entitled to deduct nine days from April 11, 1974 to April 20, 1974 and the last date for filing an application against the order passed on April 11, 1974, was July 20, 1974. The petitioner handed over the papers to his learned advocate in the High Court on July 17, 1974 when he was told that the time for filing the application had expired on July 14, 1974. The advocate, however, prepared the application for revision and filed it on July 19, 1974 and also filed along with it an application for condonation of delay under Section 5 of the Limitation Act, 1963. It was, however, contended at the hearing of the application for condonation of delay that the application for revision filed on July 19, 1974 was within time and no condonation for delay was necessary. Mr. Justice A. K. De has held that the application for revision of the order passed on the 11th April, 1974 was within time and the application for condonation of delay was redundant as the petitioner was entitled to deduct the entire period of nine days from April 11, 1974 to April 20, 1974 from the period of limitation according to general practice and on the ground that the application for the copy not having been rejected on April 14, 1974 or on April 18, 1974 under Rules 322 and 323 of the Criminal Rules and Orders, Vol. 1 and folios having been accepted on April 18, 1974, the date of putting the requisites and folios should be deemed to have been extended to April 18, 1974. The learned Judge has also held that the delay, if any, in filing the application would have been condoned on that ground. His Lordship has held further that the petitioner was entitled to deduct two days which his advocate in the High Court had taken to prepare the petition as a sufficient cause for delay and that the petitioner was entitled to condonation of the delay on the ground of wrong advice given by his advocate in the lower court.

12. A similar view was taken with regard to Rule 26 Chap. XIII by a Division Bench consisting of Mr. Justice Amresh Roy and Mr. Justice S. N. Bagchi in S.C.A.T. No. 3644 of 1969 (Cal). The Division Bench stated :

'that the period allowed by the rules for furnishing folios notified for copies is a period of time which the party is entitled to his credit because if folios are supplied within that period then the party has per se acted with due diligence. On the present report of the Stamp Reporter the application does not appear to be beyond limitation. Let it be registered. Inform the learned Advocate for the petitioner.'

In other words the Division Bench has held that under the Appellate Side Rules the parties are entitled to deduction of time taken for the entire period from notification till deposit of stamps and folios.

13. There are therefore two judgments of this court. There is a judgment of a learned single Judge holding that the entire period taken from notification till deposit of stamps and folios and the delivery of copy may be excluded in computing the period of limitation under Rule 322 Chap. 17 of Criminal Rules and Orders aforesaid. There is a Division Bench judgment holding that the entire period in similar circumstances under Rule 26 Chap. XIII of Appellate Side Rules aforesaid shall also be excluded. In the instant case also the applications for copy had not been rejected by this Court and stamps and folios put in after seven days were duly accepted by office.

14. With these views, expressed by the learned single Judge and the Division Bench, Mr. Justice P. K, Banerjee and Mr. Justice R. K. Sharma have not agreed. It seems to us that the view taken by the Division Bench consisting of Mr. Justice Banerjee and Mr. Justice Sharma which has referred the question to us should be accepted. By framing rules this Court cannot extend the period of limitation prescribed by the Limitation Act. A date is fixed by the department under the Rules for filing the stamps and folios. The Rules permit that within specified periods the stamps and folios have to be delivered. If stamps and folios are not delivered within this specified period, the application for copies are liable to be rejected. But the period specified in the Rules has, in our view, nothing to do with extension of the period of limitation prescribed by the Limitation Act. If there is delay in depositing and delivering the stamps and folios after notification, that delay also cannot be taken advantage of by a prospective appellant or applicant, as the time taken cannot be said to be the time requisite for obtaining copy of order or decree under Section 12(2) of the Act. In this view of the matter, we express our respectful agreement with the referring Division Bench and hold that period prescribed by our Rules for delivery of stamps and folios cannot be excluded in computing the period of limitation. The fact that a proposed appellant or applicant has made a delayed deposit and the Court has accepted the delayed deposit instead of rejecting the application does not in our opinion, make any difference. We answer the first question accordingly.

15. In the instant case the relevant dates are as follows :

19-6-74--The date of judgment appealed from.

24-6-74--The date of application for copy of judgment,

4-9-74 -- The date of signing of the decree.

13-9-74 --The date fixed for notifying the stamps and folios.

25-9-74--The date of delivery of stamps and folios.

27-11-74 -- The date on which the copy was made ready for delivery.

3-12-74 --The date of application for decree.

5-2-75 -- The date fixed for notifying the stamps and folios.

7-2-75--The date of delivery of stamps and folios.

20-2-75--The date on which the copy was ready for delivery.

11-4-75-- The date of filing of applications under Article 133(1) of the Constitution of India.

16. It appears that there has been a total confusion in this matter on the part of the appellant in computing the period of limitation.

17. The Additional Stamp Reporter has not referred to or considered the afore said judgments of Mr. Justice A. K. De and Mr. Justice Amaresh Roy and Mr. Justice S. N. Bagchi in reporting that the delay in making the application was six days. The Stamp Reporter in a subsequent report made on our requisition reports relying on the aforesaid judgments that there has been no delay at all and the application was within time. The report of the Stamp Reporter shall be kept in the records of these proceedings.

18. The applicant before us, the State of West Bengal in the affidavit of Dinesh Chandra Roy, Assistant in the office of the Legal Remembrancer, West Bengal filed on the 27th March, 1978 admits that the delay was either of seven days or of 45 days. According to the applicant, the delay was due to the confusion in the mind of the applicants' advocate owing to the two judgments we have cited and the misappreciation of the legal position. On an examination of the relevant dates, it appears that there was a delay of ten days in filing the applications. In view of the judgments referred to above with which we have not agreed and the confusion caused thereby and in the special circumstances of this case we condone the delay in making these applications.

19. The applications far condonation of delay are therefore allowed. The applications for leave to appeal to the Supreme Court shall now be registered and be proceeded with accordingly.

20. The Rules are accordingly made absolute.

21. There will be no order as to costs.

Sabyasachi Mukharji, J.

22. I agree.

S.K. Datta, J.

23. I agree.


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