Case: Addl. Collector Of Customs, Calcutta &amp; Anr Vs. M/S. Best &amp; Co

the order or judgment the appellant would not be entitled to exclusion of time as such time would not be " requisite" time within the meaning of S. 12 (2) and the High Court was therefore right in dismissing the appeal as being beyond time. The Privy Council disagreed with this contention holding that S. 12 contained a positive direction for exclusion of time and that such direction applied irrespective of whether the rules permitted the filing of an appeal or an application without annexing the copy of the order or judgment. The Privy Council emphasised that the positive direction contained in S. 12 was unconditional inasmuch as there was no reference therein to the Code of Civil Procedure and the section did not say why the time was to be excluded. At p. 170 of the report (Ind app): (at p. 105 of AIR) the Privy council observed:"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it." 11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or order. 12. In imperial Bucket Co. v. Smt. Bhagwati Basak AIR 1954 Cal 520 there are however observations to the effect that an appellant will have the benefit of S. 12 in a case where he has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite. As the Privy Council observed, a party might like to examine the judgment or the decree or the order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. But in Gangaram v. Beharilal, AIR 1952 Bhopal 39 a view has been taken that sub-ss. 2 and 3 of S. 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review. This view is not in consonance with and in fact is contrary to the interpretation of S. 12 by the Privy Council in Surtys Case, 55 Ind. App. 161: (AIR 1928 P. C. 103) (supra) and is therefore unwarranted. The same must also be said of Abdul Aziz v. Jai Ram, AIR 1951 Him Pra 67. As observed by the Privy Council in Surtys case, 55 Ind App 161: (AIR 1928 PC 103 ) (supra) the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Haji Hassum v. Noor Mohammad, (1904) ILR 28 Bom 643, Kalipada Karmakar v. Shekharbasini Dasya, 24 Cal LJ 235: (AIR 1917 Cal 320) and Waid Ali Shah v. Nawal Kishore, (1895) ILR 17 All 213 was that an appellant was entitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy. The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz., that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application which in its unamended form was in their view time barred would have been well within the period of limitation. In our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be, must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it7. Two views were, however, canvassed before us on the construction of S. 12. One was that the right of exclusion of time is qualified by the words "time requisite for obtaining a copy of the decree, sentence or order" in sub-section 2. Therefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application it is not possible to say that the time required for obtaining such a copy was requisite. In such cases the time in obtaining copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order. Certain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree, judgment or order is not actually annexed to the application or the memorandum of appeal. The other view is that sub-ss. 2 and 3 of S. 12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position even where a certified copy of the judgment gives all the necessary information enabling the party to decide to proceed further or not, he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not necessary to prepare a formal order, if such an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied forRule 4, in Chapter XXXIII - A of the Rules of the High Court requires that an application for leave to appeal shall be made by a notice of motion before the appellate Court and shall be presented in the prescribed form, viz.; Form No. 3. That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application. The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order. But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents10. In regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of S. 12 would not apply where it is not necessary to annex a copy of the judgment or order. For, in such a case it is not possible to say that the time taken in obtaining such a copy is time "requisite" within the meaning of that expression in sub-s.2 of S. 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or orderIn our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation.