Case: Udayan Chinubhai Vs. R. C. Bali

3. On April 14, 1976, the appellant, who stays in Ahmedabad, requested Shri Bharatinder Singh, his Advocate in Delhi, in the trial Court, to take necessary steps to file an appeal in the High Court and the said Advocate made an application for certified copies of the judgment and the decree on April 17, 1976. Later on the appellant requested Shri P.H. Parekh, Advocate, to file the appeal in the High Court. Shri Parekh was informed by Shri Bharatinder Singh that he had made the application for certified copies in April, 1976 and that he would handover the certified copies as soon as these were received.4. Since, however, for a long time the said certified copies were not received by him from Shri Bharatinder Singh, Shri Parekh filed another application for certified copies of the judgment and decree on July 14, 1976, after signing of the decree. The said copies were ready on September 17, 1976 and were received by Shri Parekh on that day. Shri Parekh prepared the Memo of appeal, got it approved from his client in Ahmedabad, purchased the court fees payable on the Memorandum of appeal on September 25, 1976, and filed the appeal in the High Court on September 29, 1976.5. It is stated that Shri Parekh was all along of the opinion that since the first copy had been applied for in April, 1976 and since that was not ready, the appeal would be well within time and since the said certified copies would be obtained from Shri Bharatinder Singh, Shri Parekh would file the said certified copies to show that the appeal was within the period of limitation. It is further stated that Shri Parekh was also of the opinion that the time for limitation would start running from May 6, 1976, since that was the date when the respondent paid the deficient court fees and the final decree was drawn up and signed. It was under these circumstances, it was claimed before the High Court, that the appeal filed was within the period of limitation as prescribed by Art.116(a) of the Schedule to the Limitation Act, 1963.6. The Registry of the High Court pointed out that the appeal was time barred and the appellant, therefore, filed an application explaining all the aforesaid facts and circumstances with regard to the delay in presentation of the appeal and also contended that in fact there was no delay if the time ran from May 6, 1976.7. The High Court held that the appeal was, prima facie, time barred taking the date of the decree as March 27, 1976, which was the date of the judgment and refused to condone the delay of 12 days which, according to the High Court, was not adequately explained. The High Court, however, made a significant observation taking note of the entire circumstances of the case that "all this makes out sufficient cause for condoning the delay upto that time", that is September 17, 1976, when Shri Parekh took delivery of the certified copy. It may be mentioned here that Shri Bharatinder Singh took delivery of the certified copies on December 22, 1976, although these were ready for delivery on June 11, 1976.

Reasoning:
10. In the old Limitation Act, 1908, the Explanation was not there and there was a sharp cleavage of opinion in the High Courts with regard to the expression "the time requisite for obtaining a copy of the decree". Dealing with S.12(2) of the old Act, this Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava [1961 (2) SCR 918   : AIR 1961 SC 832   : 1963 (2) SCJ 11] made the following observation at page 926is, however, a sharp difference of opinion in regard to cases where an application for a certified copy of the decree is made after the said decree is drawn up. In dealing with such cases Courts have differed as to what would be the period requisite for obtaining the certified copy of the decree. The Bombay, Calcutta and Patna High Courts, appear to have held that the period taken in drawing up of the decree would be part of the requisite period, while other High Courts have taken a contrary view. It is significant that though the High Courts have thus differed on this point, in every case an attempt is judicially made to do justice between the parties. The Bombay view was the majorityany period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period under S.12(2) of the Limitation Act, 1908.Relying on the new S.12(2) read with the Explanation of the 1963 Act, it is not possible to accept the submission that in computing the time requisite for obtaining the copy of a decree by an application for copy made after preparation of the decree, the time that elapsed between the pronouncement of the judgment and the signing of the decree should be excluded. The Explanation does not countenance such a construction of S.12(2). It is to set at rest the difference of views amongst the High Courts that the Explanation was introduced and it is not permissible now to allow the same controversy to be perpetuated even after the 1963 Act.The object of the Explanation is to facilitate computation of the time requisite for obtaining a copy of the decree about which there had been earlier sharp difference of judicial opinion. It will be an irony if the same difference of opinion continues even after the new Explanation. Since the Explanation is apparently capable of conflicting views still current in several High Courts which have been noticed in the Bombay Full Bench case of Subhash Ganpatrao Buty (supra), two of which are now from the same High Court, it is not possible merely to decide, as the Full Bench has done, "on a natural and grammatical meaning of the Explanation" to S.12(2). It is clear from the decision of the Full Bench that it would have arrived at a different conclusion and would have perhaps even agreed with the decision of the single Bench of that Court if it did not fall into an error in holding that there was absolutely no ambiguity in the Explanation notwithstanding conflicting views expressed by some of the High Courts, including their own, to which their attention was drawn.22. We would not approve of reading the words in the Explanation "shall not be excluded" by mentally substituting them as "shall be included" for the purpose of construction. There is a scheme underlying the several clauses in S.12 along with the Explanation which is the opening section in Part III of the Act under the title "Computation of period of Limitation".(1), (2), (3) and (4) use the same expression "shall be excluded" for the purpose of computing the period of limitation. The period of limitation is defined in S.2(j) and "means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act". Whenever, therefore, under S.12 a prescribed period of limitation has to be computed certain days are permitted to be excluded in order that a person who desires to appeal is not put to any inconvenience or hardship in the prescribed period being shortened by certain exigencies for no fault of his or for reasons beyond his control.Computation of limitation is predominantly the governing factor in S.12. In order to achieve an easy computation of the period of limitation without hardship to litigants and to avoid vicissitudes oflitigious exercises which the old section had been subjected to, the Explanation has been introduced. In order to enable a correct computation of the period of limitation under S.12(2) with certitude, when it is provided, therein, that certain time has to be excluded, it is then clearly provided, at the same time, in the Explanation that a particular period of time shall not be excluded. As if the section and the Explanation say : You are permitted to exclude the time requisite for obtaining a copy but in computing that time, which is requisite and which is allowed for exclusion under S.12(2), you shall not exclude, while computing the period of limitation, the time that had elapsed from the date of judgment to the date of your application for a copy. The object seems clearly to be not to give premium to unmerited idleness and indifference of litigants in making application for copy.27. The words "under this section" in the Explanation are significant relating, as it does, to the governing topic in the section, namely, computation of the period of limitation. There are no twin topics, one for computation of the period of limitation under S.12(2) and the other for computation of the time requisite for obtaining a copy of the decree under the Explanation divorced from computation of limitation. The Explanation cannot be read in isolation disowning the substantive provision, namely, S.12(2).28. The position may be different if a decree in law cannot be prepared because ofwith some directions in the judgment. The Explanation does a composite service, positive as well as negative. Positively it prescribes a mode of correct computation of the time requisite by a process of exclusion and negatively it mandates for not excluding the time before making an application for copy. The Explanation does not warrant inclusion of a certain period positively excluded by it for the purpose of computing the period of limitation by "including" that excluded period for the benefit of a person prior to his making an application for copy. The interdict of the Explanation must be respected.29. The subject matter of S.12(2) and the Explanation is identical and, with respect, we are unable to agree with the opinion of the Full Bench in Subhash Ganpatrao Buty (supra) that there is a dichotomy of "topic" in the said two provisions. We have seen that there may be scope for two views on the Explanation and that would inevitably forbid a mere grammatical construction of the same on the touchstone of the plain text divorced from the object of the provision. The real intent will have to be discovered from the scheme of the provisions. It is by following that rule of construction, we have gone into the history and background of the provision together with the recommendation of the Law Commission, as also the Objects, and Reasons of the Bill in order to arrive at the proper intent of the Explanation.30. In interpreting the provisions of a statute the courts have to give effect to the actual words used whether couched in the positive or in the negative. It is not permissible to alter the cohesive underlying thought process of the legislature by reading in positive sense what has been set out in negative terms. The courts will try to discover the real intent by keeping the diction of the statute intact. This is another cardinal rule of construction.31. The view we have taken does not require us to mentally substitute the words in the statute for those used by the legislature. Besides, even under the new Act there having already arisen a conflict of decisions in several High Courts the sooner the controversy is set at rest the better. We are happy that in arriving at this decision we are effectuating a very useful recommendation of the Law Commission whose anxiety in the Report was clearly manifest to put an end to an ancient judicial conflict. The Court will do its duty not to recommence another series of litigation.32. The correct legal position, therefore, is that under S.12(2) read with the Explanation a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the singing of the decree if he made the application for a copy only after preparation of the decree. We endorse the views on the line of the Bombay High Court in Sitaram Dada Sawant (supra). With respect, the Full Bench decision in Subhas Ganpatrao Buty (supra) cannot be approved.33. This will, however, not conclude the matter before us.34. While the above is the true legal position that emerges from S.12(2) read with the Explanation there may be an exceptional case, as the instant one, before us.35. The time requisite for obtaining a copy under S.12(2) must be that time which is "properly required" for getting a copy of the decree [see Lala Bal Mukand (supra)]. It is not possible to conceive how a person may obtain a copy of a decree if that decree, in view of the recitals in the judgment pronounced, cannot be prepared without some further action by a party. A judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case, a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a decree immediately after pronouncement of the judgment, no matter if, in fact, the decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or forwith such directions or for other legally permissible reasons, the party, who is required to comply with such directions or provisions, cannot rely upon the time required by him, under those circumstances, as running against his opponent.36. When a judgment is delivered in the presence of the parties clearly announcing certain steps to be taken by the plaintiff before the decree can be prepared, the matter stands on an entirely different footing. In the present case without deposit of the deficient court fees by the plaintiff the decree could not be instantly prepared under the law. Time was given to the plaintiff for that purpose and there could be no decree in existence in law until the plaintiff supplied the court fees. Without the existence of the decree any application for a copy of the decree would be futile. Therefore, on the facts of this case, in view of the operative part of the judgment, the date of the decree was when the plaintiff furnished the court fees as ordered. It was only then for the first time possible to prepare the decree in terms of the judgment. In this case the decree was prepared on the very day, namely, May 6, 1976, when the court fees were furnished by the plaintiff. As has been observed in Lala Bal Mukand (supra) it would have been "extravagant" for the appellant to apply for a copy of the decree before the decree could be prepared. On the special facts of this case there was no default on the part of the appellant and the appeal was not barred by limitation. The respondent cannot take advantage of his own default to defeat the appellants appeal on the ground of limitation. The period of 90 days, in this case, will count from the date when the plaintiff had deposited the court fees, as ordered, when only the court could take up the preparation of the decree. It is not a case of the court omitting or delaying to prepare the decree without any further action by a party.37. Even otherwise, in the entire circumstances of the case disclosing sheer indifference, perhaps, negligence, on the part of the Advocate, Shri Bharatinder Singh, and no laches, whatever, on the part of the appellant, we would have been inclined to condone the delay of 12 days under S.5 of the Limitation Act.