J. N. SURTY v. T. S. CHETTYAR, FIRM (DEFENDANTS) — 1928 DIGILAW 11 (SC)

Judgement Appeal (No. 56 of 1927) by special leave from two decrees of the High Court in its appellate jurisdiction (June 8, 1925, and February 26, 1926), the first dismissing an appeal from a decree of the High Court in its original jurisdiction, and the second refusing an application for review. 9 Law Rep. 55 Ind. App. 161 ( 1927- 1928) J. N. Surty V. T. S. C hettyar, Firm 20 The only question in the present appeal was whether an appeal by the present appellant from a decree of the High Court in its original jurisdiction dated January 8, 1925, was barred by limitation. By the Indian Limitation Act, 1908, Sch. I., art. 151, the period allowed was twenty days. Sect. 12, sub-s. 2, provided that in computing the period the " time requisite for obtaining a copy of the decree " should be excluded. By Order xli., r. 1, of the Code of Civil Procedure, 1908, a memorandum of appeal had to be accompanied by a copy of the decree as well as of the judgment; but a rule of the High Court, made under s. 122 of the Code, provided that a memorandum of appeal against a decree of the High Court might be presented without a copy of the decree. The terms of s. 12 and of the rule of the High Court are set out in the judgment of the Judicial Committee. Affidavits filed by the appellants legal advisers, with a petition for an extension of time, stated that an application for copies of both the judgment and the decree was made on January 8, 1925, the date on which the judgment was delivered ; that on March 25 a copy of the judgment was ready for delivery, but that a copy of the decree was not ready until April 27, when it was obtained on payment of an urgent fee. The affidavits alleged ignorance of the rule of the High Court. The petition was heard by Robinson C.J. and Brown J. They doubted the alleged ignorance of the rule, and were of opinion that in any case no ground for indulgence had been shown; the appeal was accordingly dismissed. The effect of s, 12, subs. 2, of the Indian Limitation Act was not argued upon the application. The petition was heard by Robinson C.J. and Brown J. They doubted the alleged ignorance of the rule, and were of opinion that in any case no ground for indulgence had been shown; the appeal was accordingly dismissed. The effect of s, 12, subs. 2, of the Indian Limitation Act was not argued upon the application. The appellant petitioned for review of judgment on the ground that he was entitled under s. 12, sub-s. 2, to the time requisite for obtaining the copy of the decree, and that consequently the appeal was in time. The Court admitted a review, being of opinion that having regard to the affidavits the alleged error could be regarded as one apparent on the face of the record. The hearing on review took place before Rutledge C.J. and Chari J., who held that the appeal was. barred. The learned judges were of opinion, shortly stated, that as the rule made it unnecessary to file a copy of the decree, the time occupied in obtaining it could not be regarded as " requisite" within the meaning of s. 12, sub-s. 2. The proceedings are reported at I. L. R. 4 R. 265. The High Court granted a certificate that the matter was one fit for appeal to the Privy Council, but the appellant having failed to give security within the time requisite, the certificate was revoked. The Judicial Committee granted special leave to appeal. 1928. Jan. 23, 24. Kenworthy Brown and Parikh for the appellant. Under s. 12, sub-s. 2, of the Indian Limitation Act, 1908, the time occupied in obtaining a copy of the decree was to be excluded, it not being suggested that there was any delay or default by the appellant whereby that time exceeded the "time requisite/ Rule 5 of the High Court rules gave the appellant the privilege of filing a memorandum without a copy of the decree, but did not affect the plain and uncon ditional provision in s. 12, sub-s. 2. That provision would operate even if it was to be assumed that the copy could be required only for the purpose of filing, for the " time requisite " to do an act does not depend upon whether in any particular case the act is required to be done. That provision would operate even if it was to be assumed that the copy could be required only for the purpose of filing, for the " time requisite " to do an act does not depend upon whether in any particular case the act is required to be done. But, as was pointed out by the Full Bench of the Allahabad High Court in Wajid Ali Shah v. Nawal Kishore (( 1893) I. L. R. 17 A. 213, 216 (F.B).), an appellant may well require to see the terms of the judgment and decree before filing his memorandum. Judicial authority in India supports the appellant Bihari Lall Mookherjee v. Mongolanath (( 1879) I. L. R. 5 C. 110.); Kalipada v. Shekhar Basini Dasya (( 1916) 24 Cal. L. J. 235(F.B.).); Haji Hassum v. 9 Law Rep. 55 Ind. App. 161 ( 1927- 1928) J. N. Surty V. T. S. C hettyar, Firm 21 Nur Mahomed (( 1904) I. L. R. 28 B. 643.) ; Kirpa Ram v. Bakhi ( 1907, P. R. No. 114.); Mahabir Prasad Tewari v. Jamuna Singh, (( 1922) I. L. R. 1 P. 432.) Although the present question did not arise in Pramatha Nath Roy v. Lee (( 1922) L. R. 49 I. A. 307.), the judgment of the Board assumes that s. 12, sub-s. 2, applies generally. If the rule of the High Court was intended to alter the effect of s. 12, sub-s. 2, it is ultra vires. Sir George Lowndes K.C. and Jardine for the respondent. Sect. 12 of the Indian Limitation Act, 1908, is to be presumed to have been enacted in relation to Order xli., r. 1, of the Code of Civil Procedure, 1908, which requires that copies of both the decree and judgment should accompany the memorandum of appeal. A copy of the decree not being necessary in this case owing to the rule of the High Court, no time was " requisite " within the meaning of s. 12 for the purpose of obtaining it. An appellant does not require a copy of the decree as well as of the judgment unless he has to file both. A copy of the decree not being necessary in this case owing to the rule of the High Court, no time was " requisite " within the meaning of s. 12 for the purpose of obtaining it. An appellant does not require a copy of the decree as well as of the judgment unless he has to file both. The respondents contention is supported by Fazal Muhammad v. Phul Kuar (( 1879) I. L. R. 2 A. 192 (F. B.).); Kumara Akkappa Nayanim v. Sithala Naidu (( 1897) I. L. R. 20 M. 476.); Abu Backer Sahib v. Secretary of State for India (( 1909) I.L.R. 34 M. 505 (F.B.)) ; Jadhoji Raghoji v. Bajoo Babaji. (( 1899) 1 Bom. L. R. 112.) It was not competent to the Bombay Court in Haji Hassum v. Nur Mahomed (( 1904) I. L. R. 28 B. 643.) to reverse its previous decision. The present point was not before the Board in Pramatha Nath Roy v. Lee. (( 1922) L. R. 49 I. A. 307.) Having regard to the Rangoon rule no time was requisite within the meaning of s. 12 ; it is not contended that the rule effected an alteration in the section. Kenworthy Brawn in reply. No question as to the effect of s. 12 of the Limitation Act, 1877, arose in Fazal Muhammad v. Phul Kuar. (1) The appeal was under the letters patent, and by a rule of the High Court (The rule was made presumably under s. 19 of Act XXIV of 1866.) the period prescribed for appealing was ninety days with a discretion in the Court to extend the time. As appears from s. 4 of the Act of 1877, s. 12 operated only where the Act itself prescribed a period for limitation, and the Act prescribed no period in the case of a letters patent appeal in Allahabad see Sch. II., art. 151. Sir George Lowndes K.C. conceded that the Allahabad decision did not apply in the present case. Feb. 14. The judgment of their Lordships was delivered by LORD PHILLIMORE. The appellant is plaintiff in a suit brought on the original side of the High Court of Rangoon which was dismissed on January 8, 1925. On April 28 he presented to the appellate side of the Court a memorandum of appeal against the decree. Feb. 14. The judgment of their Lordships was delivered by LORD PHILLIMORE. The appellant is plaintiff in a suit brought on the original side of the High Court of Rangoon which was dismissed on January 8, 1925. On April 28 he presented to the appellate side of the Court a memorandum of appeal against the decree. The judge before whom the appeal came for admission noted that the appeal appeared to be out of time and directed that this point should be argued as a preliminary question before a bench of the High Court. Thereupon the appellant filed affidavits explaining the delay, and also a petition praying for an extension of time. The Court decided that he was in delay, and that no sufficient reason had been shown for any indulgence and dismissed the appeal. Thereupon the appellant applied for a review of the decree dismissing the appeal, and for the first time argued that under the provisions of the Indian Limitation Act, the time during which he was procuring a copy of the decree and a copy of what is called the judgment—that is, the judges reasons for the decree—was not to be reckoned as part of the period of twenty days which was prescribed by art. 151 for such appeas. To this it was answered by the respondents that this section applied only to cases where the Code of Civil Procedure required that the memorandum of appeal should be accompanied by copies of the 9 Law Rep. 55 Ind. App. 161 ( 1927- 1928) J. N. Surty V. T. S. C hettyar, Firm 22 judgment and decree, and that by the rules of the High Court of Rangoon, which could modify that Code, where the appeal presented was not from a decree in the mofussil but from the original side of the same Court, the appeal could be presented without annexing the two documents, and that cessante ratione cessat lex, and, therefore, the period of twenty days was unqualified. It may perhaps be questioned whether the appellant, who had not taken this point when the matter first came to be argued, was entitled to raise it by a proceeding in review; but leave was given to him so to apply. The Court then heard his arguments, but decided in favour of the respondents affirming its previous decision that the appeal was out of time. The Court then heard his arguments, but decided in favour of the respondents affirming its previous decision that the appeal was out of time. It is from this decision that the present appeal is brought. Sect. 12 of the Limitation Act provides (inter alia) as follows " (2.) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of 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 reviewed, shall be excluded. (3.) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded”. Under the Code of Civil Procedure, Order xli., r. 1, makes it necessary that the memorandum of appeal should be accompanied by copies of the decree and judgment, and this is the general rule. Sect. 122, however, gives power to the High Courts, established under the Indian High Courts Act, 1861, and the Chief Courts of the Punjab and Lower Burma, to annul, alter or add to the rules in the Code, and by the Government of India Act, 1915, this power is extended to other High Courts. Several High and Chief Courts have exercised this power, and in particular this High Court has made rules in the following terms — “Memoranda of appeal and applications for revision shall be accompanied by certified copies of the following documents (1.) The. decree or order against which an appeal or an application is made. (2.) The judgment on which such decree or order is founded unless the Court dispenses there with, and (3.) In appeals and applications from appellate decrees or orders the judgment of the Court of first instance, unless the Court dispenses therewith. " Provided that a memorandum of appeal against a decree or order of the High Court in the exercise of its original civil jurisdiction may be presented without a certified copy of the decree or formal order accompanying it." It is therefore not necessary on an appeal to the appellate side that the memorandum of appeal should have Doth documents annexed to it. And if the only reason for excluding the time for procuring these documents was that they were necessary to the presentation of the appeal, it might be said that the provisions of s. 12 could not have been meant to apply to such a case. Even so, however, there would be a difficulty in dealing with the grammatical construction of the words ; but their Lordships, if they had found a consistent course of practice, would have been disposed to accept the construction put upon them by the High Court of Rangoon. When, however, the matter comes to be examined, it is found that there have been divergencies of opinion in the several High Courts, and that the more prevalent opinion is not that which has been taken by the High Court of Rangoon In Haji Hassum v. Nur Mahomed (I. L. R. 28 B. 643.) Jenkins C.J. and Batchelor J. held that in 9 Law Rep. 55 Ind. App. 161 ( 1927- 1928) J. N. Surty V. T. S. C hettyar, Firm 23 reckoning the time for presenting an appeal, the time required for obtaining a copy of the judgment must be excluded, even though by the rules of the Court it was not necessary to obtain a copy of the judgment to file with the memorandum of appeal. In Kirka Ram v. Rakhy ( 1907, P. R. No. 114.) the Court held that s. 12 of the Limitation Act applied to appeals under s. 70 of the Punjab Courts Act under which the period for appealing was ninety days, and that the time required for obtaining copies of the judgment and decree must be excluded, though by the rules of the Court such copies were not required to be annexed to the memorandum in that particular class of appeal. In Kalipada v. Shekhar Basini (24 Cal. L. J. 235.) Sanderson C.J. and Mookerjee J. held that in a case where the period of ninety days was prescribed for appealing, s. 12 of the Limitation Act excluded the period required for obtaining a copy of the decree, even though the rules did not prescribe that a copy of the decree should be attached to the application. The point also arose, though indirectly, as a matter for consideration, on Wajd Ali Shah v. Nawal Kishore. The point also arose, though indirectly, as a matter for consideration, on Wajd Ali Shah v. Nawal Kishore. (I. L. R. 17 A. 213.) In that case the argument began from the other end. It was contended for the respondent that it must be the rule that a copy of the decree should be annexed to the memorandum of appeal, because the Limitation Act excluded the time for procuring that copy. But the reply made by Edge C.J., presiding over a Full Bench, was that there might be other reasons for giving to the appellant this time. The Chief Justice pointed out that the Legislature might intend to give possible appellants time to consider the terms of the decree before hurrying into an appeal from it. To these authorities it should perhaps be added that in the ease of Pramatha Nath Roy v. Lee (L. R. 49 I. A. 307.), it seems to have been assumed that the time properly required for obtaining copies of the two documents was to be excluded, the discussion turning upon the question whether the steps taken by the appellant were sufficiently prompt to entitle him to the benefit of this provision. It appeared at one time during the course of the argument that an earlier decision of a Full Bench of the High Court of Allahabad when Sir Robert Stewart was Chief Justice (Final Muhammad v. Phul Kuar (I. L. R. 2 A. 192.)), was to the contrary effect; but after closer examination it was discovered by their Lordships that the case was not a decision on the Limitation Act, but upon what is known as a letters-patent appeal, that is an appeal under the clause in the charter constituting the Court; a rule fixed the period for appeal and there was no provision like that in the Limitation Act for excluding the period of time required for getting copies of the judgment and decree. The learned counsel for the respondents who, at first, relied upon this case, upon consideration, saw that this was so, and withdrew the case from his argument. It seems how ever, that other tribunals have not been equally fortunate in discovery. The three other decisions on which the respondents relied take their origin from a misapprehension of the above case. In Jadhoji Raghoji v. Rajoo Babaji (1 Bom. It seems how ever, that other tribunals have not been equally fortunate in discovery. The three other decisions on which the respondents relied take their origin from a misapprehension of the above case. In Jadhoji Raghoji v. Rajoo Babaji (1 Bom. L. R. 112.) the Court expressed the opinion that inasmuch as the annexation of the two documents to the memorandum of appeal was not necessary, the exclusion provided by s. 12 of the Limitation Act did not apply. However, in the circumstances the Court held that the delay might be excused, and allowed the appeal to proceed. This may explain why the apparently opposite view was taken in Haji Hassums case (I. L. R. 28 B. 643.) without referring the matter to a Full Bench. There is, at any rate, this to be said, the earlier case in 1 Bom. professes to be founded on the case in 9 Law Rep. 55 Ind. App. 161 ( 1927- 1928) J. N. Surty V. T. S. C hettyar, Firm 24 2 All. which, as already observed, when closely investigated, affords no such foundation. Then there are two cases in the High Court of Madras. The earlier one, Kumara Akkappa Nayanim v. Sithala Naidu (I. L. R. 20 M. 476.), in which it was held definitely that the period was not to be deducted, the Chief Justice saying " that the provision can only be held to apply where it is necessary to file with such appeal a copy of the decree or judgment/ and Shephard J. quoting the Allahabad decision as supporting his view. It so happens, however, that there was another ground upon which it could be held, and was held, that the section of the Limitation Act did not apply, as the proceedings were under an Act which is complete in itself, though this was not the prominent ground put forward by the Court. Lastly comes the other case {Abu Backer Sahib v. Secretary of State for India (I. L. R. 34 M. 605.)), the point arising under the same Act, and the case being decided like the previous one, on both grounds, though on this occasion greater prominence was given to the special Act. Lastly comes the other case {Abu Backer Sahib v. Secretary of State for India (I. L. R. 34 M. 605.)), the point arising under the same Act, and the case being decided like the previous one, on both grounds, though on this occasion greater prominence was given to the special Act. Besides these authorities there are, in the arguments in the cases cited, references made from time to time to unreported cases, and their Lordships have also investigated some authorities laid before them which, however, have no real bearing The result, as has been already stated, is that the preponderance of practice is in favour of the appellant. 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. Sect. 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. If, 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 co d 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. 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 practitioners ; and their Lordships would be unwilling to discourage any such effort. All, however, that can be done as the law stands, is for the High Courts to be strict in applying the provision of exclusion. All, however, that can be done as the law stands, is for the High Courts to be strict in applying the provision of exclusion. The word " requisite " is a strong word ; it may be regarded as meaning something more than the word " required." It means " properly required," and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up by his opponent in drawing up the decree, or by the officials of the Court in preparing and issuing the two documents, he is not responsible. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, and the 9 Law Rep. 55 Ind. App. 161 ( 1927- 1928) J. N. Surty V. T. S. C hettyar, Firm 25 case remitted to the High Court to be heard upon its merits. The appellant must have the costs of the appeal to His Majesty in Council and the costs of the first hearing when the admissibility of his appeal was discussed in the High Court. Inasmuch, however, as he did not take the right point on that occasion and thereby brought about the application in review, he must pay the costs of that application by way of deduction from those awarded to him.