STATE OJ< UTT AR PRADESH

MAHARAJ NARAIN AND OTHERS

January 30, .1968

[M. HIDAYATULLAH Al'D K. S. HEGDE, JJ.j

Limitation ACI, 1908, .1. 12(2)-"time rtquirite" for obtaining copy of order appealed fro1n-n1eaning of.

The appellanl Slate filed an appeal in the High Court on March 29, 1963 against the order made by the trial court on November 10, 1962 acquitting the rcpondents. According to the information contained in the copy of the order produced along w1lh the Memorandum of Appeal.

1he appeal was filed wilhin time.

It showed Iha! the copy was applied for on Novombcr 15. 1962 and it was ready on January 3. 1963. It was contended on behalf of the respondents 1ha1 the appeal was out of time in view of the fact that 1he appellant had applied for and obtained two

other copies of the orJcr appealed from and i'f time was calculated on the basis o[ thoc; c copies the appeal

v. a" beyond time.

In addition 10 the copy referred 10 earlier. the app<:llant had applied for another copy of the order appealed fron1 on December 3, 196:!. and that copy was ready for delivery on December 20, 1962.

The appellant also applied for yel another copy of rhc same order on Dcrcmbcr 21, 1962 and that copy was made ready on the same day.

II was not disputed lba1 if the period of limitation was con1puted on the basis of the t\l.'O later copies, the appeal

was barred hy limitation.

The High Court accepted the respondent's contention and dismissed the appeal.

On appeal to this Courl.

HELD : That lbc decision of 1he High Court under apoeal did not Jay down the law correctly.

The expression 'time requisite' in s. 12(2) of the Limitation Act can nol be understood as the time absolutely necessary for obtaining the copy

of the order.

Whal is deduc1ible under s. 12(2) is not the minimum F time within which a copy of lbc order appealed against could have been obtained.

It must be remembered that s. 12(2) e!llarges tho period of limitation proscribed under entry 157 of Schedule I. That stion permits the appellant 10 deducl from the time ta.ken for filing lbe appeal. the time required for obtaining lhe copy of the order appealed from and not any lesser period "'hich might hav~ been occupied if th~ application for copy had been filed al some 01hcr date.

That section lays no obligation on the appellant 10 be prompt in his application for a copy of the order.

G A plain reading of s. 12(2) shows 1ha1 in computing the peiiod of Iimi1a-

1ion prescribed for an appeal. the day on which the judgment or order complained of \Vas pronounced and the time taken by the court to make available the copy applied for. have lo be excluded. There is no justification for restricting the scope of 1ha1 provision. [844 E-HJ

Matltek and others v. Siter Moltai11111ad, A.l.R. 1935, Lah. 682; disapproved.

Pra111atlta Nat/1 Rov v. Lee, 49 I.A. 307 and /, N. Surry v.

T. S.

Clietlyar, 55 I.A. 161; distinguished.

...

A Panjam Y. Trimala Reddy, I.LR. 57 Mad. 560; Kunju Kesavan v.

M. M. Philip, A.LR. 1953 T.C. 552; B. Govind Raj Sewak Singh and Anr.

v. Behuti Narain Singh. A.LR. 1950, All. 486 and K. U. Singh v. M. R.

Kachhi, A.LR. 1960 M.P. 140; referred to.

CB'IMINAL APPELLATE JURISDICTION: C: !minal Appeal No. 122 of 1965.

B Appeal from the judgment and order dated December l,

1964 of the Allahabad High Court in Government Appeal No. 785 of 1963.

0. P. Rana, for the appellant.

!. P. Goyal and Sobhag Mal Jain, for the respondents.

The Judgment of the Court was delivered by

Hegde, J. In this appeal by certificate, the only question that arises for decision is as to the true scope of the expression "time requisite for obtaining a copy of the decree, sentence or order appealed from" found in sub-s. 2 cf s. 12 of the Indian Limitation Act 1908 which will be hereinafter referred to as the Act. The said question arose for decision under the following circumstances: The respondents were tried for various offences before the learned assistant sessions judge, Farrukhabad. The said learned judge acquitted them.

Against the order of acquittal the State went up in appeal to the High Court of Allahabad. The said appeal was dismissed as being barred by limitation. The correctness of that decision is in issue in this appeal.

Item 157 of the first schedule to the Act prescribes that the period of limitation for an appeal under the Code of Criminal Procedure 1898, from an order of acuittal is three months from the date of the order appealed from.

But sub-s. 2 of s. 12 provides that iu computing the period of limitation prescribed for ari appeal th" day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the order appealed from shall be excluded.

The memorandum of appeal was filed into court on March 29,

1963. The order appealed from had been delivered on November 10, 1962. According to the information contained in the copy of the order produced along with the said memorandum the appeal was within time. It showt:d that that copy was applied for on November 15, 1962 and the same was ready on January 3, 1963.

It was contended on behalf of the respondents that the appeal was out of time in view of the fact that the appellant had applied for and obtained two other copies of the order appealed from and if time is calculated on the basis of those copies the appeal was beyond time. In addition to the copy referred to earlier, the

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(1968] 2 SC.R.

appellant had applied for another copy of the order appt'aled A from on Drcember 3, 1962 and that copy was ready for delivery on Dc-:c::.· <:r 20, 1962. The appellant also applied for yet another copy of the same order on December 21, 1962 and that copy was made ready on the same day. There is no dispute that if the period of limitation is computed on the basis of those copies 1:1c appeal was barred by limitation. But the point for considera- B lion is whether the obtaining of those copies has any relevance in the matter of computing the period of limitation for the <:ppeal.

The High Court of Allahab1d accepted the contentio..i of the respondents that in determining the time requisite for obtai,1ing a copy of the order appealed fro1.1, it had to take into consideration the copies made available to the appellant on the 20th c and 2 lst December, 1962. 1t opined that the expression 'requisite' found in s. 12(2) means "properly required", and hence the limitation has 10 be computed on the basis of the copy made available to the appellant in Decembtr, 1962.

It was not disputed on behalf o( the respondents that it was not necessary for the appellant to apply for a copy of the order appealed from immediately after the order was pronounced. The a1 :>ellant could have, if !I chose to take the risk, waited till the ninety days period allowed to it by the 'tatutc was almost exhausted.

Even then the time required for obaining a copy of the order would have been deducted in calculating the period of liinitation for filing the appeal.

Hence Ire expression 'timt requisite' cannot be understood as the time absolutely neccsary for obtaining the copy of the order. What is , teductible under s. 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained.

It must be remembered that sub-s. 2 of s. 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date.

That section lays no obligation on the appellant to be prompt in his application for a copy of the order.

A plain reading of s. 12 (2) shows that in computing the period of limitation prescribed for an appeal. the day on which the judgment or order complained of was pronounced and the time taken by the court to make available the copy applied for, have to be excluded. There is no justification for restricting the scope of that provision.

If the appellate courts are required to find out in every appeal filed before them the minimum ti.ne requ; red for obtaining a copy of the order appealer! from, it would be unworkable. In that event every time an appeal is filed, the court not only will hav~ to see

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V.P. STATE v. MAHARA. NARAIN (Hegde, J.) 845

whether thP, appeal is in time on the basis of the information availble from the copy of the order filed along with the memorandum of appeal but it must go further and jiold an enquiry whether any other copy had been made available to the appellant and if so what was the time taken by the court to make available that copy.

This wo•.1ld lead to a great deal of confusion and enquiries into the alleged !aches or diktoriness in respect not of copies produced with the memoranC:11m of appeal but about other copies which he might have got and u5ed for other purposes with which the court has nothing to do.

The High Court in arriving at the decision that the appeal is barred by time relied on the decision of the Lahore High Court in Mathe/a and Others v. Sher Mohammad('). It also sought support from the decisions of the Judicial Committee in Pramatha Nath Roy v. Lee(') and J. N. Surty v. T. S. Chettyar('). The Lahore decision undoubtedly supports the view taken by the High Court. It lays down that the words "time requisite" mean simply time required by the appellant to obtain a copy of the decree assuming that he acted with the reasonable promptitude and dili gence. It further lays dpwn that the time requisite for obtaining it copy is the shortest time during which the copy would have been obtained by the appe!lant, and it has nothing to do with the amount of time spent by him in obtaining the copy which he chooses to file with the memorandum of appeal.

With respect to the learned judges who decided that case we are unable to spell out from the language of s. 12(2) the requirement that the appellant should act with reasonable promptitude and diligence and the further condition that the time requisite for obtaining a copy should be the shortest time during which a copy could have been obtained by the appe!lant. We are of the opinion that the said decision does not lay down the law correctly.

Now we shall proceed to consider the decisions of the Judicial Committee relied on by the High Court. IP ?ramatha Nath Roy

v. Lee(') the appellant was found to be guilty of !aches.

The Judicial Commitee held that he was not entitled to deduct the time lost due to his !aches. It is in that context the Board observed that the time which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order could not be regarded as 'requisite' within sub-s. 2 of s. 12. That decision does not bear on the question under consideration.

In J. N. Surty v. T. S. Chettyar('), the question that fell for decision by the Judicial Committee was whether in reckoning the time for presenting an appeal, the time required for obtaining

(!)A.LR. !935 Lah. 682.

(3) 55 I.A. 161.

(2) 49 I.A. 3 7.

LJSup.Cl/68-10

8~6

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[1968] 2 S.C.R.

a copy of the decree or judgment must be excluded even though by the rules of the court it was not necessary to produce with the memorar.dum of appeal the copy of the decree or judgment.

Their Lordships answered that question in the affirmative. While deciding that question, their Lordships considered some of the observations made by the High Court relating to the dilatoriness of some Indian practitioners.

In that context they observed :

"There is force no doubt in the observation made in the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatoriness of some Indian practitioner; and their Lordships would he unwilling to discourage any such effort.

All, however, that can be done, as the law stands, is for the High Courts to be strict m applying the provision of exclusion.

The word 'requisite' is a strong word; it may be

:"garded as meaning something nfore than the word 'required'.

It means 'properly required' and it throws upon the pleader or counsel for the appellant the ,.. ::ssity of showing that no part of the delay beyond the prescribed period is due to his fault."

In other words, what their Lordships said was that any delay due to the default of the pleader of the appellant cannot be deducted.

There can be no question of any default if the steps taken by the appellant are in accordance with law.

Hence, the above quoted observations of the Judicial Committee can have no application to the po:nt under consideraion.

Preponderance of judicial opinion is in favour of the conclusion reached by us earlier. The leading case on the subject is the decision of the fu]] bench of the Madras High Court in Panjamv. Tri ma/a Reddy('), wherein the court laid down that in s. 12 the words 'tim.~ requisite for obtaining a copy of the decree' mean the time beyond the party's control occupied in obtaining <he copy which is filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for the copy had been filed on some other date. Th's decision wa! followed by the Travancore-Cochin High Court in Kunju Kesavan

v. M. M. Philip('), by the Allahabad High Court in B. Gorind Raj Sewak Singh and Another v. Behuti Narain Singh(') and by the Madhya Pradesh High Court in K. V. Singh v. M.

Kachhi(').

From the above discussion it follows that the decis-'on under appeal does not lay down the la"' correctly.

But yet we arc of

Ctl 1.L.R. l7 Ma<l. 561. (Jl A .IR J9; J All. 486.

(2) A.J.R. 195) T.C. 552.

(4) A.l.R. t960 M.P. 14J.

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A the opinion that this is not a fit case to interfere with the order of the High Court dismissing the appeal. The respondents were acquitted by the assistant sessions judge, Farrukhabad on November 10, 1962. We were informed by learned counsel for the State that this appeal was brouht to this court mainly with a view to settle an important question of law, and under instructions B from the State government he told us that he does not press the appeal on merits. Accordingly this appeal is dismissed.

R.K.P.S.

Appeal dismissed.