| SooperKanoon Citation | sooperkanoon.com/717782 |
| Subject | Limitation |
| Court | Kerala High Court |
| Decided On | Nov-03-1992 |
| Case Number | A.S. No. 552 of 1992 |
| Judge | P.K. Balasubramanyan, J. |
| Reported in | AIR1993Ker83 |
| Acts | Limitation Act, 1963 - Sections 12(2); Kerala Civil Practice Rules - Rule 242 |
| Appellant | V. Sivalingam |
| Respondent | Dakshinamurthy and ors. |
| Advocates: | O. Ramachandran Nambiar, Adv. |
| Cases Referred | Copal Krishna Das v. Sailendra Nath Biswas |
P.K. Balasubramanyan, J.
1. The question for decision is whether the appeal is filed in time. The judgment of the trial court was pronounced on 21-12-1991. The application for copy was made on 24-12-1991. The copying sheets were called for on 27-1-1992. They were produced on 30-1-1992. The certified copy was ready on 31-3-1992. The date fixed to appear for receipt of copy was 31-3-1992 and it was delivered to the appellant on 31-3-1992 itself. The appeal was filed in this court on 27-6-1992. If we go by the above entries, the appeal was filed on the 92nd day and hence there is a delay in filing this appeal. But, it is contended on behalf of the appellant that he is entitled to the exclusion of 3 clear days from 27-1-1992 in view of Rule 242 of the Kerala Civil Rules of Practice. In other words, he contends that though the copying sheets were called for on 27-1-1992 and he produced them only on 30-1-1992, he does not lose the 2 days in between since he had 3 days time to produce the copying sheets as per Rule 242 of the Kerala Civil Rules of Practice and if the said period of 3 days is excluded, his appeal is filed in time.
2. The exclusion of time requisite for obtaining a copy of the decree is provided for by Section 12(2) of the Limitation Act. Section 12(2) of the Limitation Act reads :
'12. Exclusion of time in legal proceedings.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded'.
The words 'time requisite' has been the subject matter of judicial interpretation in several decisions. The question here is whether the 3 days time provided for by Rule 242 of the Kerala Civil Rules of Practice can be taken as the time requisite within the meaning of Section 12(2) of the Limitation Act. Rule 242 of the Kerala Civil Rules of Practice reads :
'242. Calling for Stamp Papers:-- Every day between the hours of 3 and 5 P.M. a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board of the copying section. Such list shall remain suspended for (three clear working days) in accordance with Rule 6, but, if the last day should fall during a vacation the list shall remain till the day after the re-opening day. Within that time, the applicant shall supply the stamp papers called for, failing which the application shall be struck off.
It is the submission of the learned counsel for the appellant that the 3 clear days provided for by Rule 242 of the Civil Rules of Practice is included in the time requisite for obtaining the certified copy.
3. As observed by the Privy Council in Pramath Nath Roy v. Lee, 49 Ind Appeals 307: (AIR 1922 PC 352) 'No period can be regarded as requisite under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order'. The question whether the 3 days made available to an applicant to produce the copying sheets with-out his application for copy being struck out for non-production of sheet is liable to be excluded is really concluded by a Division Bench decision of this court reported in Kurian Antony v. Chacko Happen, ILR 1961 (J) Ker 659. Speaking for the Division Bench, His Lordship Mr. Justice Madhavan Nair after considering the submission based on Rule 234 of the Civil Rules of Practice, then governing held:
'The time requisite for/obtaining copies is the time which an applicant takes to obtain the copies using all diligence possible on his part. The time taken by the appellant in supplying printing charges after the same was notified to him cannot be said to be time 'necessary' on his part consistent with the diligence expected of him in the matter. The applicant ought to deposit the required charges not later than the first day on which the office is open after the day on which the printing charges are notified; and if he neglects to do so he is not entitled to deduct the intervening days as part of the time 'necessary' or 'requisite' in obtaining the copy. It is really a prolongation of the time requisite for preparation of the copy caused by the neglect or indifference of the applicant. Any
'delay caused by the carelessness or negligence of a party applying for a copy cannot be taken into consideration or allowed for in computing the time requisite for obtaining the copy. The requisite does not mean requisite by reason of the carelessness or negligence of the applicant; it means the time which is occupied by the officer who has got to provide that copy, in making the copy'. Per Edge, C. J. in Parbati v. Bhola, ILR 12 All 79 at 82'.
His Lordship also referred to the established practice of all the three High Courts that intergrated into the Kerala High Court as well as to the practice of this High Court in support of the conclusion that the applicant is not entitled to automatically exclude all the days provided for production of copying sheets or pr0inting charges. His Lordship observed:
'Further, it has been the consistent practice in this Court, as well as in the High Courts ofTravancore-Cochin, Travancore. Cochin and Madras, not to exclude from computation the period availed of by the party in supplying the printing charges after due notification. As the law does not take note of fractions of a day, and the day is counted from midnight to midnight, the day on which the notification was made, as also the day on which the payment was made were excluded in the computation; but where the party failed to supply the funds the next working day after the notification the period availed of was always counted as part of the time taken by the party to institute the appeal. A practice so plain and so consistently followed tanta-mounts to an established rule of court. Retaining the application for a week in the Copying Department awaiting payment of printing charges under Rule 234 of the Civil Rules of Practice is in our opinion an indulgence shown to the party, and an instruction given to the office not to dismiss the application too soon. But it does not mean that the party need pay the printing charges at the end of the time specified in the notification beyond which the same would not be accepted. If the time taken by the party for making deposit of printing charges after notification to him is not excluded to his advantage, it is conceded that this second appeal would be out of time'.
4. The Civil Rules of Practice was re-enacted with effect from 1-10-1971. Construing Rule 242 of the Rules, this court held in the decision reported in Mohammed v. Kunhammad Haji, 1973 KLJ 651 that if a holiday intervenes between the date of calling for the copying sheets and their production, the holiday can be excluded. It appears to me that by implication, this decision rejects the theory that the applicant is automatically entitled to the exclusion of all the 3 days provided for by Rule 242. Rule 242 of the Civil Rules of Practice as it then stood read as follows :
'242. Calling for stamp papers. Every day between the hours of 3 and 5 p.m. a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board of the Copying Section. Such list shallremain suspended for 3 days reckoned in accordance with Rule 6, but if the last day should fall during a vacation the list shall remain till the day after the reopening day, within that time, the applicant shall supply the stamp papers called for, failing which the application shall be struck off.
The only change brought about in this Rule subsequently is to replace the words '3 days reckoned11 with the words 'three clear working days'. This substitution does not have any relevance in the present context. As the Explanatory note accompanying the amendment notification itself indicates that it is only to clarify that 3 clear working days are made available for production of the copying sheets to keep the application for copy alive, His Lordship Mr. Justice Subramanian Poti (as he then was) observed in the decision referred to above as follows :
'Then the question is whether the party is bound to furnish stamp paper on the same day the stamp papers are called for. Normally it is difficult to say that this must be the case because there is no knowing at what time the papers arc called for and whether there was sufficient time for the party to comply with it on the same day. Besides, so far as the Kerala State is concerned, there is no difficulty in deciding this question. The Civil Rules of Practice indicate that there must be such exclusion. Rule 242 of the Kerala Civil Rules of Practice relates to calling for stamp papers and'the provision is that, every day between the hours of 3 and 5 p.m. a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board of the Copying Section. Such list will remain on the notice board for three days and within that time the applicant has to supply the stamp papers called for. Rule 29 of the same rules relates to presentation of proceedings and documents in Court. All documents including applications for copies of judgments and orders have to be presented to or filed in Court at any time before 3 p.m. or if the presiding officer so directs, even after 3p.m. during office hours. Therefore the normal rule is that papers must be presentedbefore 3 p.m. None can file any paper as of right after 3 p.m. though the Court permits it to be done in appropriate cases. The notification calling for stamp papers is to be published daily only between 3 and 5 p.m. Hence it is not possible to comply with it by furnishing stamp papers on the same day. Necessarily it follows that the said day should be excluded. If in between that day and the next working day any holiday intervenes there is necessarily exclusion of the period of the holidays. Therefore between the 8th September and llth September, 1972 there is no scope for reckoning any day as period spent for obtaining copy as has been reckoned by the office'.
In my view this reasoning reiterates the view that there is no automatic exclusion of the 3 days provided for by Rule 242 of the Civil Rules of Practice.
5. The learned counsel for the appellant referred to the decision reported in Sreevalsan Pillai v. Thankamoni Amma, 1987 (1) KLT 108 and submitted that if an application for copy is dismissed for non-production of copying sheets and is subsequently restored on application, the period between the dismissal and the restoration has been held to be 'time requisite' by a Division Bench of this Court and in the light of that decision, the period of 3 days also is liable to be excluded. He laid special emphasis on paragraph 2 of that decision and the effect of the reasoning therein, I am not in a position to agree with the learned counsel that the reasoning therein has any application here. On restoration of the application dismissed for default, it is as if there was no dismissal at all. The pointed question arising herein was not the subject matter of consideration in that decision.
6. The decision reported in Udayan Chinubhai v. R.C. Ball, 1977 (4) SCC 309 ; (AIR 1977 SC 2319) also does not advance the claim of the appellant. In fact in paragraph 35 of the said decision their Lordships observed :
'......A judgment which is unconditionedby 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 partycannot 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 for non-compliance with 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'.
This decision only indicates that vigilance on the part of the appellant in applying for copy alone entitles him to exclude the time spent by the office in preparing the decree.
7. During my investigation, I came across a decision of the Andhra Pradesh High Court reported as In re Javvaji Venkateshwarlu, AIR 1974 AP 319 wherein dealing with Rule 127 of the Andhra Civil Rules of Practice, a learned Judge of that court has upheld an argument like the one raised by the appellant herein. The learned Judge has reasoned thus:
'In the case of catling for stamp papers or calling for printing charges, I do not think that the time stipulated in the notice board for calling for stamp papers or printing charges, can be said to be the time lost by the party on account of his carelessness or negligence. I think that is the time requisite for the court to make the copies ready. It must be treated to be in the same manner as the time taken by the office for calling for or ascertaining the necessary stamp papers or printing charges to be paid by the party.
As is indicated in Rule 127 of Civil Rules of Practice, where the copy applications are not accompanied by requisite number of stamp papers or requisite amount of printing charges,the Civil Rules of Practice contemplate only calling for such stamp papers or printing charges within a particular period fixed by the Court. If the stamps arc filed or charges are paid within that time fixed, the party must be deemed to have complied with that direction of the Court. If the party complies with that direction on the last date of the period (granted) by the Court, he is deemed to have complied with the Court direction on the first day of the direction, and the time taken for compliance by the party shall be time taken by the Court as time requisite for supplying copies.'
With great respect, I do not think that there is any scope for invoking any fiction regarding the date of production of the copying sheets. The period prescribed by Rule 242 of the Civil Rules of Practice is only to save the application for copy from dismissal for 3 days. It does not operate to create a fiction that whenever the sheets are produced within that period they must be taken to have been produced the day next to the calling of the sheets. According to me Rule 242 of the Kerala Civil Rules of Practice operates in a different field and cannot be pressed into service in the determination of the time requisite within the meaning of Section 12(2) of the Limitation Act.
8. This view I have taken is also supported by the decision of the Orissa High Court reported in Smt. Aparajita Dibya v. Binod Behari Patra (1988) 66 Cut LT 557 : (AIR 1989 Orissa 271) wherein his Lordship Mr. Justice Mohapatra, differing from the view of the Madras High Court in the decision reported in Muthulakshmi v. Swaminathan, (1981) 11 MLJ 94 has held:
'Perusal of Section 12 of the Limitation Act makes it clear that the time taken by the authority to supply the copy is to be excluded and the time taken by the applicant is not to be excluded. A defective application for copy is not to be entertained and is liable to be rejected. To protect the application from rejection three days period is granted to file the requisites. If the same are not filed within three days as provided, the application isliable to he rejected and thereafter, a fresh application is to be filed. This cannot be interpreted to be time requisite for the purpose of obtaining a copy. With great respect, I am not able to agree with the view of the Madras High Court in the decision reported in Muthulakshmi's case (supra). Accordingly, the benefit which was given for protecting an application cannot be taken advantage of for the purpose of computing limitation. In this view of the matter, there is no doubt that there is delay of three days and the Stamp Report is correct'.
The decision of Ratnam J, reported in 1981 (II) MLJ 194, with great respect does not appear to me to give sufficient reasons to exclude wholesale, the three days made available to an applicant for copy to produce the copying sheets to save his application from dismissal though the decision of the Supreme Court reported in Copal Krishna Das v. Sailendra Nath Biswas, AIR 1975 SC 1290 is also referred to therein. The said decision of the Supreme Court lays down clearly that a party was not entitled to add the period during which he did not deposit the funds for collecting the copy for want of funds after the copy was prepared by the office. According to that decision time requisite did not include the delay caused by the applicant's carelessness or negligence, When the sheets are not produced the day next to their being called, it can only be attributed to the carelessness of the applicant to act promptly. With respect I am therefore not in a position to agree with the ratio of the Madras decision.
9. In the light of the decision reported in ILR 1961 (1) Ker 659 and for the reasons given above, I hold that the appellant is not entitled to exclude automatically the 3 days referred to in Rule 242 of the Kerala Civil Rules of Practice.
In the view I have taken that the appellant is not entitled to the exclusion of the 3 days referred to in Rule 242 of the Kerala Civil Rules of Practice, the appeal is beyond time. The learned counsel prays for time to make an application under Section 5 of the Limitation Act for condoning the delay in filing theappeal. The appellant is granted time to file the necessary application.