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Kirpa Ram and anr. Vs. Malha and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 34 of 1969
Judge
Reported inAIR1974HP9
ActsHimachal Pradesh High Court Rules - Rule 2; ;Himachal Pradesh High Court Order; ;Limitation Act, 1963 - Section 12
AppellantKirpa Ram and anr.
RespondentMalha and ors.
Appellant Advocate P.N. Nag, Adv.
Respondent Advocate S. Malhotra, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases Referred(Him Pra) (Om Parkash v. Shyam Lal
Excerpt:
- .....given under section 5, limitation act. which also contained the prayer for permission to file a copy of trial court's judgment. the application was. however, not supported by an affidavit. the deputy registrar accordingly ordered the memorandum of appeal to be returned and to be re-filed within one week.3. i would like to make it clear at the outset that the deputy registrar was acting on behalf of the court and whatever orders he made were more or less of a ministerial nature and could be stated to be the order of the court subject to modification by any learned judge to whom the said order might have been put up for reconsideration. since no reconsideration took place of this order, it should be deemed to have been the order of the court and the appellants were required to comply.....
Judgment:

D.B. Lal, J.

1. This second appeal is directed against the decision dated 11-12-1968 of the District Judge Simla, wherein the decision of the Senior Sub-Judge Chamba in a suit for declaration and possession relating to 35 bighas and odd land situate in Mohal Balana. Pargana Bhatti Tikri of District Chamba, has been set aside and the suit has been decreed. Accordingly the defendants have come up in second appeal in this Court.

2. The second appeal was filed on 18-3-1969. It is admitted on all hands that the appeal was time barred by three days. On 19-3-1969 the Deputy Registrar made a note signifying (a) that the correct provision of law under which the appeal was filed was not stated, (b) that the valuation for purposes of jurisdiction was not given, (c) that the appeal was time barred by three days, (d) that the judgment of the trial Court was not filed, and (e) that the application was given under Section 5, Limitation Act. which also contained the prayer for permission to file a copy of trial Court's judgment. The application was. however, not supported by an affidavit. The Deputy Registrar accordingly ordered the memorandum of appeal to be returned and to be re-filed within one week.

3. I would like to make it clear at the outset that the Deputy Registrar was acting on behalf of the Court and whatever orders he made were more or less of a ministerial nature and could be stated to be the order of the Court subject to modification by any learned Judge to whom the said order might have been put up for reconsideration. Since no reconsideration took place of this order, it should be deemed to have been the order of the Court and the appellants were required to comply with the shortcomings pointed out by the Deputy Registrar within one week with effect from 19-3-1969. The appellants got their affidavit prepared and sweared on 30-3-1969 and on 10-4-1969 the learned counsel representing the appellants answered the shortcomings pointed out by the Deputy Registrar. He pointed out. inter alia, that the time spent in taking the copy of judgment of the trial Court was also to be reckoned and as such the appeal was within time and could not be stated to be time barred by three days Apart from that, he stated that the copy of the judgment of the trial Court was somewhere misplaced by him and hence could not be tiled in time. Regarding the application under Section 5 of the Limitation Act, he made a note that the application was not called for and was given 'as a precautionary measure.' Thereafter the matter was laid to rest and no orders were made on the application under Section 5. nor any notice was taken of the non-compliance committed by the appellants of the order of the Deputy Registrar, as obviously he did not fulfil the shortcomings pointed out in the appeal within a period of one week.

4. When the appeal came up for hearing before me. the question of limitation was agitated with some vehemence and both the learned counsel addressed copiously on this question and I proposed to give my decision regarding thereto.

5. The preliminary question involved in this appeal is really based ontwo contentions. The first contention is as to the competency of the appeal, as it was not accompanied by required judgment of the trial Court. The second contention, of course, relates to the application of Section 5 of the Limitation Act As to the first contention, under the High Court Rules & Orders Vol. V. Chap-ter-I. Part I. Rule 2 (b). the memorandum of appeal was required to be accompanied by a copy of the judgment of the Court of first instance. Unless such a copy was filed, the appeal was not complete. The appellants could of course take some time from the Court to file a copy of that judgment. In the instant case, the time granted was of one week and the copy was not filed within this period. It was rather filed on 10-4-1969. There is no affidavit of the appellants justifying the delay which they committed in filing such copy. The learned counsel, of course, noted at the fag-end of the application filed under Section 5 that the copy was misplaced somewhere in his office. He too did not take care to get further extention of time, after one week was granted by the Registrar for this purpose. No details are given in the application as to the date when the copy was misplaced and as to the date when it was actually found. It appears, the learned counsel just became inactive after mentioning this fact in the application and chose to re-file the appeal on 10-4-1969 as if he could do that even on a much later date. The rule laid down by the High Court has a statutory basis The appeal was decidedly incompetent as it was neither accompanied by a con of the judgment of the trial Court, nor the said copy was filed within the period deemed to be given by the Court. In fact no prayer was made for the extension of any such period which was initially one week. I would, therefore, hold that the appeal was not validly filed before 10-4-1969. There is no explanation for delay upto this date and it is time barred and must be dismissed.

6. Regarding the application under Section 5 of the Limitation Act, firstly it deals with the period of three days only. Since there is an affidavit that the appellants fell sick, it may be stated that the ground stated was justified. The appellants claimed limitation from the time spent in taking the copy of the judgment of the trial Court. Under Section 12 of the Limitation Act. that time could not be taken into consideration (see: Custodian. Evacuee Property Punjab v. Prabhu Dayal Chhajan Lal (AIR 1960 Pun 298)). Apart from this, there was no valid reason for delay upto 10-4-1969 when the appeal was completed and filed in Court. For an application under Section 5, the first consideration is that the expiration of the period of limitation gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties and this valuable right which has accrued favour of the decree-holder should not be dispensed with in a light-hearted manner. Besides that the other consideration is, sufficient cause for excusing the delay, and in the instant case the delay is not only of three days but of a period upto 10-4-1969 when the appeal was filed and the reason given was that the copy of the trial Court judgment was misplaced somewhere which fact remained unsubstantiated.

7. A learned Judge of this Court in C. R. No. 43 of 1971 (Him Pra) (Om Parkash v. Shyam Lal) decided on 24-7-1972 considered the application for condonation of delay in filing a copy of the judgment of the trial Court. The learned Judge found no satisfactory explanation for the delay and since the copy was held to be necessary for completing the grounds of revision, the revision petition itself was rejected. Similarly I do in the present case which relates to second appeal. As there is no sufficient cause for explaining the delay upto 10-4-1969, the second appeal has Sot to be dismissed on point of limitation.

8. The appeal is dismissed as it is time barred.

9. In the special circumstances, the parties are left to bear their own costs.


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