Case: Commissioner Of Sales Tax, U.P Vs. Madan Lal Das &amp; Sons, Bareilly

in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised of reviewed shall be excluded only if such copy has to be file alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of Judgment, when the legislature has not inserted such a proviso in section 12(2). It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revision petition. 6. The matter indeed is not res integra. In the case of J. N. Surty vs. T. S. Chettiyar (1), the Judicial Committee after noticing the conflict in the decisions of the High Courts held that section 12(2) of the Indian Limitation Act, 1908 applied even when by a rule of the High Court a memorandum of appeal need not be accompanied by a copy of the decree. Lord Phillimore speaking on behalf of the Judicial Committee observed :"Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation section 12 makes no reference to the Code of Civil Procedure or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction. It, 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." 7. Following the above decision, it was held by a Full Bench consisting of five Judges of the Lahore High Court in the case of Punjab Co-operative Bank Ltd., Lahore v. The Official Liquidators. The Punjab Cotton Press Co. Ltd. that even though under the Rules and Orders of the High Court no copy of the judgment is required to be filed along with the memorandum of appeal preferred under section 202 of the Indian Companies Act from an order of a single Judge, the provisions of section 12 of the Indian Limitation Act would be attracted. The provisions of section 12 were also held to govern an appeal under Letters Patent. 8. A full Bench of the Patna High Court in the case of Mt. Lalitkuari vs. Mahaprasad N. Singh, also held that the provisions of section 12 of the Limitation Act were applicable to Letter Patent appeals under Clause 10 of the Letters Patent. 9. The above decision of the Judicial Committee was followed by this Court in the case of Additional Collector of Customs, Calcutta & Anr. vs. M/s. Best & Co. 10. Similar view was expressed by this Court in the case of S. A. Gafoor vs. Ayesha Beghum & Ors. 11. It is plain that since 1928 when the Judicial Committee decided the case of Surty (supra), the view which has been consistently taken by the Courts in India is that the provisions of section 12(2) of the Limitation Act would apply even though the copy mentioned in that sub- section is not required to be filed along with the memorandum of appeal. The same position should hold good in case of revision petitions ever since Limitation Act of 1963 came into force. 12. Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respondent, and as such, it was not necessary for the respondent to apply for copy of the said order. In this respect we find that the copy which was served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner. 13. In the case of State of Uttar Pradesh v. Maharaj Narain & Ors. (6) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the Limitation Act, 1963.

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

Explanation:
1[ds]This contention is equally devoid of force. There is nothing in the language of section 12(2) of the Limitation Act to justify the inference that the time spent for obtaining copy of the order sought to be revised can be excluded only if such a copy is required to be filed along with the revision application. All that section 12(2) states in this connection is that in computing the period of limitation a revision, the time requisite for obtaining a copy of the order sought to be revised shall be excluded. It would be impermissible to read in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised of reviewed shall be excluded only if such copy has to be file alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of Judgment, when the legislature has not inserted such a proviso in section 12(2). It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revision petition12. Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respondent, and as such, it was not necessary for the respondent to apply for copy of the said orderIn this respect we find that the copy which was served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner13. In the case of State of Uttar Pradesh v. Maharaj Narain & Ors. (6) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the Limitation Act, 1963.