Judgment:
-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER
S.B. CIVIL FIRST APPEAL NO.646/2011 (Om Prakash v. Smt. Shashi & Anr.) Date of Order ::
24. h July, 2015 PRESENT HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE GOPAL KRISHAN VYAS HON'BLE MR.JUSTICE ARUN BHANSALI Mr. R.R.Nagori, Senior Advocate, assisted by Mr. Alkesh Agarwal, Mr. B.L.Choudhary, for the appellant. Mr. Ashok Chhangani, for the respondents. .... BY THE COURT : The regular first appeal preferred to assail the judgment and decree dated 13.12.1999, passed by learned Additional District Judge No.3, Jodhpur, was reported to be barred by limitation from 33 days'. The appellant-defendant contested the office report with assertion that an application to have certified copy of the judgment and decree was submitted on 21.12.1999. The certified copy was to be delivered on 22.12.1999, however, being not prepared on that day the same was given on 27.3.2000. Prior to that no other date of delivery of copy was notified as per Rule 239 of the General Rules (Civil), 1986, therefore, as per the appellant-defendant the period from 21.12.1999 to 27.3.2000 is required to be excluded while -2- computing limitation to file appeal as time taken in obtaining certified copy within the meaning of Section 12 of the Limitation Act. Suffice to mention that in the certified copy, as per the endorsement made by the copying section of the original court, the application was submitted on 21.12.1999 with an anticipating date for delivery of copy as 22.12.1999. The copy was ready for delivery on 29.12.1999 and a notice to this effect was issued on 7.3.2000. The copy then was delivered to the appellant-defendant on 27.3.2000. The office on the count that a notice was issued on 7.3.2000 treated the period from 22.12.1999 to 7.3.2000 as the time taken in obtaining certified copy and on basis of that made a report about 33 days' delay in filing the appeal. The appellant-defendant while meeting with the office objection emphasised that the period from 21.12.1999 to 27.3.2000 is required to be excluded as the time taken in obtaining certified copy by relying upon two Single Bench judgments of this Court. A Single Bench of this Court in Mangilal v. Sitaram, reported in 1957 RLW368 held that if the certified copy applied for is not ready on the date fixed and neither next date for delivery of copy is given nor notice about its preparation is affixed on the notice board then the time from the date of preparation of copy to the date of delivery of the same is to be treated as a part of the time taken in obtaining certified copy. -3- In other judgment i.e. Suresh Kumar Sharma v. Idol Laxmanji Maharaj, reported in 1973 RLW160 a Single Bench of this Court held as under:-
“8. Reference may also be made to a decision of this Court in Mangilal v. Sitaram. In this case on similar facts, an appeal against an order of the court of Magistrate First Class Jodhpur under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was dismissed by the District Magistrate as time barred. The application for copy was given on 21-6-1956 as the date for supplying the copy. The copy was not ready on that date and so it was not given to him. The copy was ready on 3-7-1956. It was contended that a period between 3-7-56 and 7-7-56 could not be excluded because the applicant ought to have been present in the court on 3-7-56 and obtained the copy. At that time Rule 144 was in force and it correspondences to Rule 234 of the General Rules (Civil), 1952. Dave J.
as he then was, held that as no further date was fixed for the supply of the copy on 21-6-57, and as the applicant had not deposited necessary postal charges, a notice should have been affixed under Rule 144(3) on the notice board of the court. If such a notice were affixed on the notice board of the court, then the applicant would not have been entitled to exclusion of time between 3-7-56 and 7-7-56. But since no such notice was affixed, he was certainly entitled to the exclusion of this period. In the present case, as well, no notice was affixed on the notice board of the copying department that the defendant should obtain his copies on 28-1-69. He is therefore, entitled to the exclusion of the period between 28-1-69 to 12-2-69.”
. -4- The respondent plaintiff contested the stand of the appellant-defendant with submission that issuance of notice dated 7.3.2000 is a notice sufficient about copy being ready, therefore, the period subsequent to such notice cannot be excluded by computing limitation as time taken in obtaining certified copy. The contention advanced was supported by a Single Bench Judgment of this Court in Moolchand Soni v. Virendra Kumar, reported in 1981 RLW121 in which it was held as under:-
“4. It has always been held that under Section 12 of the Limitation Act the exclusion of time would be for such period which was requisite for obtaining a copy of the decree or judgment, appealed from. The time "requisite" for obtaining a copy ordinarily commenced on the date when the copy applied for and extends upto the date when the copy is ready for delivery. But if the applicant has no knowledge about the date on which the copy was likely to become ready for delivery and no such date is fixed, then the applicant may be allowed time upto the date of actual taking of delivery. But once a notice issued to the applicant that the copy is ready for delivery, under Rule 235 of the Rules, then the applicant cannot ignore such a notice and he cannot insist for exclusion of time upto the date of actual delivery of the copy, on the ground that notice under Rule 234 was not issued. Although the courts should be careful in complying with the provisions of the Rules and notice under Rule 234 should normally be issued in cases where the copy is not ready for delivery on the date fixed and the applicant also does not appear on that date. But in cases where the next date for delivery of copy is not fixed or intimated to the -5- applicant under Rule 234, then a notice issued under Rule 235 would serve the same purpose of furnishing information to the applicant that the copy is ready for delivery. The crux of the matter is that the applicant must be made aware of the fact that the copy applied for would become ready by a particular date or that it has already become ready for delivery and till then the applicant is entitled to exclusion of time under Section 12 of the Limitation Act, as the time "requisite" for obtaining the certified copy. Once a notice under Rule 235 is affixed on the notice board, the applicant cannot thereafter be heard to say that he had no knowledge about the date when the copy would become ready.”
. Before proceeding further, it shall be appropriate to mention that the Rules 239 and 240 of the General Rules (Civil), 1986 are pari-materia to Rules 234 and 235 respectively of the General Rules (Civil), 1952. For ready reference Rules 239 and 240 of the General Rules (Civil), 1986 are quoted below:-
“239. Date for delivery of a copy.- A definite date not ordinarily exceeding seven days ahead shall be fixed for the delivery of the copy and intimated to the applicant. The copy, as far as possible, shall be delivered on the date so fixed. If for any reason, the copy is not ready for delivery on the date so fixed, the applicant or his authorised agent shall be directed to attend on another date, when the copy may be expected to be ready for delivery, and his signature or thumb impression as the case may be, shall be obtained on the application. If the copy is not ready -6- and the applicant does not appear on the date fixed, notice of the next date fixed for the delivery of copy shall be sent to him by post, if he has deposited the necessary postal charges. If necessary postal charges have not been deposited, it shall be affixed on the notice board of the Court, and an entry to this effect shall be made on the application.
240. Delivery of a copy when ready.- When a copy is ready, and the applicant or his authorised agent is present, the copy shall be given to him. If the applicant or his authorised agent is not present a notice under the signature of Officer-in-charge shall be affixed to the notice board notifying that the copy is ready for delivery. If from the date of of affixing of the notice, the applicant appears within two months the copy shall be delivered to him. If the applicant does not appear within this period, the copy shall be destroyed under the orders of Officer-in-Charge and an entry to this effect being made in the remarks column in the register of copying applications (Reg.11).”
. On 10.1.2003 learned Single Bench after examining the judgments referred above noticed conflicting views taken by the Court, thus, referred the matter to get the following questions decided by a Larger Bench :- “(i)Whether in absence of issuance, or affixation of any notice under Rule 239 of General Rules (Civil), 1986, the applicant shall be entitled to exclusion of time, as time requisite for obtaining copy, upto the date when he actually takes delivery of the copy, or only upto the date of issuance, or affixation of notice under Rule 240?. -7- (ii)Whether in cases where notice under Rule 240 is issued or affixed, issuance or affixation of notice under Rule 239 is not required?. (iii)In case above two questions are answered in favour of issuance of notice under Rule 239, whether the notice under Rule 239 is required to be issued and/or affixed on the date which was earlier fixed to be the date on which the copy was expected to be ready for delivery?. (iv)Whether the judgment of this Court in Suresh Kumar's case lays down the law correctly, or the one in Moolchand's case lays down the law correctly?.”. While pondering the entire issue, we noticed that the conflict between the judgments cited before learned Single Bench was subject matter of another reference made in the case of Ram Lal v. Bhanwari Devi, reported in 1984 RLW605 In the case aforesaid the Larger Bench consisting of two Hon'ble Judges examined the judgments given in the cases of Suresh Kumar Sharma v. Idol Laxmanji Maharaj (supra) and Moolchand Soni v. Virendra Kumar (supra), and held as under :-
“23. We have discussed in detail the various facts of these rules above and for avoiding reputation, we would like to mention that whereas Rule 234 occupies the applicability of the period when the copy is not ready but is expected to be ready, Rule 235 comes into operation after the certified copy is ready. This situation is too patent and requires no further elucidation. We are, therefore, of the -8- view that the notice regarding preparation of copy which is ready under Rule 235 of the Civil Rules cannot be a substitute for the notice under Rule 234 notifying the date when the copy is expected to be ready.
24. Learned Judge in Mool Chand Soni's case (supra) has observed as under :
“4. It has always been held that under Section 12 of the Limitation Act the exclusion of time would be for such period which was requisite for obtaining a copy of the decree or judgment, appealed from. The time "requisite" for obtaining a copy ordinarily commenced on the date when the copy is applied for and extends upto the date when the copy is ready for delivery But if the applicant has no knowledge about the date on which the copy was likely to become ready for delivery and no such date is fixed, then the applicant may be allowed time upto the date of actual taking of delivery. But once a notice is issued to the applicant that the copy is ready for delivery, under Rule 235 of the Rules, then the applicant cannot ignore such a notice and he cannot insist for exclusion of time upto the date of actual delivery of the copy, on the ground that notice under Rule 234 was not issued. Although the courts should be careful in complying with the provisions of the Rules and notice under Rule 234 should normally be issued in cases where the copy is not ready for delivery on the date fixed and the applicant also does not appear on that date. But in cases where the next date for delivery of copy is not fixed or intimated to the applicant under Rule 234, then a notice issued under Rule -9- 235 would serve the same purpose of furnishing information to the applicant that the copy is ready for delivery. The crux of the matter is that the applicant must be made aware of the fact that the copy applied for would become ready by a particular date or that it has already become ready for delivery and till then the applicant is entitled to exclusion of time under Section 12 of the Limitation Act, as the time "requisite" for obtaining the certified copy. Once a notice under Rule 235 is affixed on the notice board, the applicant cannot thereafter be heard to say that he had no knowledge about the date when the copy would become ready.”. 25. No doubt, the learned Judge has emphasised the object of Section 12 of the Limitation Act and we have got no hesitation to accept the observations so far as they relate to the object of Section 12. However, we find ourselves unable to accept the conclusions drawn in respect of the interpretation of Rules 234 and 235 on the basis of the above object because with due respect, we are of the considered opinion that Rules 234 and 235 have been enacted for different purposes and neither they are over-lapping nor they case be substituted by each other.
26. As mentioned above the notice under Rule 235 is affixed on the notice board when the applicant or his authorized agent is not present. In case he is present the implication of affixing of notice would lose the relevancy.
27. We cannot ignore the importance and salient feature that litigants are spread over in vast areas and they - 10 - cannot attend the Copying section of the Courts day to day for obtaining copies. It may also be noticed that Copying Rules contemplate that copy must be supplied normally within a week in case he has applied on ordinary fees and as the situation exists today this rule is not complied with and non-compliance and disobedience may be bonafide, because of paucity of staff and absence of mechanical devices, as they are not available in the Munsif Courts and District Courts and there is a great rush of work making the task of the copying section difficult. In such a situation to expect from the litigant that he would keep track as and when the copy is ready without prior information about its acceptancy as contemplated by Rule 234, would be doing great injustice to him. It is with this object that Rule 234 of the Civil Rules should be given its independent, separate importance and its rigour should not be undersigned or lightened by resort to compliance of Rule 235. Whereas this interpretation would result in enhancing and achieving justice in its substantial form, the other interpretation by making Rule 234 regulatory and holding that compliance of Rule 234 and 235 is sufficient would also result in creating great hardship to the litigants. We are also not unmindful of the statutes that a particular rule cannot be held to be surplus or superfluous and if the rule making authority has provided requirement of two or three notices under Rules 234 & 235, each one will have to be given its due importance. Thus it is Section 12 of the Indian Limitation Act, which permits the exclusion of time in such period which was acquisitioned for obtaining the copy. It is also true that time ordinarily means on the date when the copy is applied for but it is not true that it expects upto the date when the copy is ready for delivery only because unless the copy becomes ready for delivery on the date fixed - 11 - when the application is given or on the extended date which again is intimated to the applicant and his representative or on the further extended date which is either intimated to the applicant or notified on the notice board, the applicant cannot have any knowledge as to when he has to be given delivery of the copy.
28. It should not be forgotten that Rule 235 is primarily meant for notifying those copies which are ready, so that if they are not collected, they can be destroyed after three months as mentioned in Rules. The information which is to be gathered from the notice under Rule 235 is notional and based on the legal fiction because even when the litigant or his representative is not available the knowledge will be attributed to them. Such a situation is resorted to in extreme cases when earlier notices under Rule 234 have been complied with. We find it difficult to accept the view taken in Mool Chand's case that mere notice of Rule 235 would be enough and non-compliance of Rule 234 would not allow exclusion of time as laying down the correct law. In our view the distinction drawn by the Hon'ble Judge in Mool Chand Soni's case in respect of the decision and the provisions laid down in Mangilal's case is also not based on any rulings.
29. As we have observed above the notice under Rule 235 contemplates different contingency and cannot be a substitute for Rule 234.
30. We have, therefore, no hesitation in holding that the decision of Mool Chand's case fails to lay-down the correct law. The decision of Suresh Kumar Sharma v. Laxmichand Ji Maharaj (supra) lays down the correct position of law in respect of Rules 234 and 235 of the General Rules.”
. - 12 - The questions referred to us, as a matter of fact have already been adjudicated and answered by Division Bench of this Court in Ram Lal v. Bhanwari Devi (supra), hence no further adjudication of the issue is desirable. The reference made to this Bench hence is answered in the terms of the law laid down in the case of Ram Lal v. Bhanwari Devi (supra). Let the appeal be listed before learned Single Bench for disposal of the same in accordance with law. Early disposal of the appeal is highly desirable as the same is pending at its preliminary stage since the year 2000. (ARUN BHANSALI),J.
(GOPAL KRISHAN VYAS),J.
(GOVIND MATHUR),J.
MathuriaKK/PS.