C.B. Capoor, J.C.
1. The interesting question of law that arises for consideration in the second appeal preferred by the defendant is as to the interpretation of Section 12 of the Limitation Act. The defendant had preferred an appeal against the judgment and decree of the trial Court in the Court of the District Judge and the same has been dismissed on the ground of having been filed after the expiry of the period of limitation. An oral prayer was made by the defendant-appellant before the learned District Judge for extending to him the benefit of Section 5 of the Limitation Act, but that prayer was also turned down.
2. The judgment of the trial Court was pronounced on 18-8-1958 and on the same day an application for obtaining a copy of the judgment and decree was filed on behalf of the defendant. The copies of judgment and decree were delivered on 26-8-1958. 26-9-1958 was a holiday and the appeal was filed on 27-9-1958.
3. The contention advanced on behalf of the defendant-appellant before the learned District Judge was that in calculating the requisite time for obtaining copies the day on which the application for obtaining copies was filed should be included and as such the appeal should be held to have been filed within the prescribed period of limitation. On behalf of the respondent, on the other hand, it was contended that in calculating the period requisite for obtaining the copy of the judgment the day on which the application for copy was made should not be included, for that day would be excluded on account of the fact that judgment was announced on that day.
In other words, the contention was that 18-8-1958 could not be excluded twice, once because of the announcement of judgment on that day and again because of the making of the application for obtaining a copy on that day. The learned District Judge relying upon a ruling of the Lahore High Court, reported in Ata Muhammad v. Pir Khan, AIR 1924 Lah 599 acceded to that contention. My attention, on behalf of the appellants, has been invited to a ruling of the Nagpur High Court, reported in Balkrishna Rajaram v. Baijnath Girdharilal, AIR 1939 Nag 150 where on a difference of opinion between Stone C. J. and Clarke J., Niyogi J. dissented from the 1924 Lahore case and overruled an earlier case of his own High Court, reported in Salam Singh v. Hira, AIR 1917 Nag 196 and held that where an application for copies of judgment and decree is made on the day on which the judinent is pronounced, that day should be included in the days requisite Tor obtaining copies, though that day is otherwise excluded by law in computing the prescribed period of limitation for appeal.
4. Sub-sections (1) and (2) of Section 12 of the Limitation Act read as below:
'(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded'.
'(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.'
5. It will have been noticed that in Sub-section (2) the expression 'the day on which the judgment complained of was pronounced' and the expression 'and the time requisite for obtaining a copy of the decree..............shall be excluded' have beenjoined by the conjunction 'and' and on a plain reading of that sub-section a person proposing to file an appeal is entitled to exclude not only the day on which the judgment complained of was announced but also the time requisite for obtaining a copy of the decree etc. appealed from or sought to be reviewed. The precise question that arises for consideration is as to whether the day on which an application for obtaining a copy is filed is to be included in computing the 'requisite time'.
Normally, the answer to the poser should be in the affirmative. The reasoning which appealed to Clarke J. in the aforesaid Nagpur case was that the 'time requisite' should be computed in the same way as the period of limitation is to be computed under Article 156, i.e. the day on which the application for copy is made should be excluded and the next day counted as the first day for the reason that one day comes to an end on the next day after the period commenced. So, the period necessary for obtaining a copy commenced when the application was made and the first day was over on the next day.
6. The atoresaid reasoning if I may say so with respect, is not quite clear. Its latter part suggests that the day on which an application for obtaining copies is filed whether it be the day on which the judgment is pronounced or any subsequent day should be excluded. So far as I am aware, there is no reported case in which such an extreme view has been taken. There is, however, no difference of opinion on the question that in computing the time requisite the day on which the application for obtaining copies of judgment is made should be included, provided the application is made subsequent to the day on which the judgment is delivered.
The conflict of opinion is only on the question as to whether such a day is to be included if that happens to be the day on which judgment is announced. So far as the earlier part of the reasoning is concerned, suffice it to say that the day on which the decree etc. is passed is excluded in computing the period of limitation provided by Article 156 by virtue of Sub-section (1) of Section 12. That sub-section cannot be invoked in aid in computing the 'time requisite' for the obvious reasons that computation of the 'time requisite' is not computation of a period of limitation prescribed for any suit, appeal or application and that it has not been provided in Sub-section (2) that the time requisite for obtaining a copy of the decree etc. is to be reckoned from a particular day.
According to the relevant Article of the Limitation Act, i.e., Article 152 so far as the instant case is concerned and Article 156 so far as the aforesaid Nagpurcase is concerned, the period of limitation begins to run from the date of the decree or order appealed from and if an application for obtaining a copy of the decree etc. is made on the same day that the decree etc. is passed there is no reason why that day should not be included in computing the 'time requisite' particularly when Sub-section (1) of Section 12 of the Limitation Act, or for the matter of that Section 9 of the General Clauses Act, 1897, does not in terms apply to the computation of the time requisite within the meaning of Sub-section (2) of Section 12 and it is agreed on all hands that if the day on which an application for copies etc. is filed is subsequent to the day on which a decree etc. is passed it is to be included in the calculation of the 'time requisite'.
7. Limitation Acts, it was observed by Stone C. J. in the aforesaid Nagpur case, should be construed so as to save rather than bar a proceeding and if on a plain reading of Sub-section (2) of Section 12 the day on which an application for obtaining a copy of decree etc. is filed is to be included in the 'time requisite', effect should be given to that interpretation even though in a particular case like the instant the same day may have to be excluded twice.
8. It was, if I may say so with respect, very aptly pointed out by Niyogi J. in the aforesaid Nagpur case:
'However startling, fantastic or absurd it may appear to be, the Courts cannot refuse to give effect to the plain meaning of the words used by the Legislature, if it does not conflict with reason and justice. There is nothing fundamentally unjust or unreasonable in excluding the same day twice'.
9. As for AIR 1924 Lah 599, suffice it to say that the point involved was decided on a concession made by the learned counsel for the appellants and in the judgment there is no discussion thereon. I am, therefore, in agreement with the view expressed by Niyogi, J., who concurred with the opinion of Stone C. J., in the AIR 1939 Nag 150. The learned District Judge was riot, therefore, right in throwing out the appeal on the ground of limitation.
10. In this view of the matter, it is not necessary to go into the question as to whether the learned District Judge erred in not extending to the appellant the benefit of Section 5 of the Limitation Act. If, however, it were necessary to go into that question, I would hold that the learned District Judge did not exercise a sound discretion in rejecting the request made by the learned counsel for the appellant. There is a divergence of judicial authority on the interpretation of Sub-section (2) of Section 12 and a mistake may well have been made by the appellant or his counsel in calculating the period within which the appeal could be filed.
Such a mistake cannot be said to have been a mala fide One. A bona fide mistake on the part of a counsel or his clerk in giving a wrong advice is held to be a sufficient cause within the meaning of Section 5 of the Limitation Act. The cases reported in Sheo Mohan Pande v. Kali Prasad Shukul, AIR 1920 All 290; Shib Dayal v. Jagannath, ILR 44 All 636: (AIR 1922 All 490) (FB) and Sunderbai v. Collector of Belgaum, ILR 43 Bom 376 : (AIR 1918 PC 135) may usefully be referred to in this connection.
11. In conclusion, this appeal is allowed with costs and the appeal filed by the appellant in theCourt of the District Judge is remanded to that Courtfor disposal in accordance with law.