Ngangom Nilamani Singh Tomba Singh v. Union of India
1962-06-01
T.N.R.TIRUMALPAD
body1962
DigiLaw.ai
ORDER :- This is a revision petition against the order of the District Judge dated 20-1-1962, condoning the delay in filing Civil Appeal No. 12 of 1960. 2. The petitioner, as plaintiff, obtained a decree before the Subordinate Judge in Title Suit No. 37 of 1958 against the respondent, the Union of India on 17-12-1959. The respondent applied for copy of the judgment and decree on 19-12-1959. The decree was actually drawn up on 24-12-1959. On 31-12-1959 the copies were completed and a notice was affixed on the Notice Board of the District Court to that effect on the same date. Copies were actually taken delivery of by the Government Advocate only on 12-1-1960 and the appeal was filed by the respondent on 8-2-1960. 3. The C. O. C. of the District Court noted on the appeal memo on 8-2-1960 that if the limitation began to run from the date of completion of the copy, namely, 31-12-1959, the appeal was barred by limitation, but that if it began only from the date of which copies Were delivered, the appeal was presented within time. On this note, the appeal was posted for admission by the Court to 15-2-1960. On 10-2-1960, the Government Advocate filed an application supported by an affidavit filed by the Government Advocate himself praying that the delay, if any, in filing the appeal may be condoned. After giving notice of this application to the petitioner, the learned District Judge passed an order stating that the time between 19-12-1959 and 12-1-1960 had to be excluded and that if the said period was excluded the appeal was within time and no question of condonation arose and he therefore admitted the appeal. 4. This order was taken in revision to this Court and this Court set aside the order of the District Judge and stated that as the fact that the copy was ready for delivery was clearly notified on the Notice Board on 31-12-1959 as required under Rule 113 of the General Rules (Civil) 1956, the period from 1-1-1960 to 12-1-1960 cannot be excluded for purpose of limitation and that the appeal was beyond time and that the District Judge should therefore consider the application for condonation and see if the delay should be excluded.
Thereafter the District Judge took up the application and he accepted the affidavit of the Government Advocate and stated that the Government Advocate was not intimated by the copying Department that the copy was ready for delivery on 31-12-1959 or on any other date, that as the Government Advocate was anxious for getting copies of the judgment and decree, he deputed his clerk to enquire if the copies were ready and the copies were then delivered to his clerk on 12-1-1960 and finally that he accepted the statement of the Govt. Advocate, that he honestly believed throughout that the time requisite for obtaining copy was upto 12-1-1960 and acting on that bona fide and honest belief he filed the appeal on 8-2-1960 and that such bona fide mistake on the part of the pleader would constitute sufficient cause within the meaning of Section 5 of the Limitation Act. The District Judge, therefore, condoned the delay. 5. Now in revision, the petitioner urged that the fact that the copy was ready for delivery having been notified as required under Rule 113 of the General Rules (Civil) 1956 on 31-12-1959, it must be presumed that the appellant had knowledge of the said notification on that date and that it was due to want of care and attention and due to gross negligence that the appeal was not filed within time and that the mistake committed cannot therefore, be accepted as bona fide. 6. In the affidavit filed by the Government Advocate. I find certain very relevant matters mentioned. One is that the Copying Department intimated to him that some stamps had to be affixed to the certified copies and accordingly the requisite stamps were furnished on 31-12-1959, but that he was not intimated that the copies would be ready for delivery on 31-12-59 itself. He further states that as he was anxious for delivery of the copies, he deputed his clerk to enquire when the copies would be delivered and then the Copying Department delivered the copies to his clerk on 12-1-1960. He next states that in the copies so delivered to him, he did not see any reason mentioned "for the delay in presentation of the copy if any" and hence he was under the bona fide and honest impression that the time for obtaining copies extended upto 12-1-1960 and in this impression he filed the appeal on 8-2-1960. 7.
He next states that in the copies so delivered to him, he did not see any reason mentioned "for the delay in presentation of the copy if any" and hence he was under the bona fide and honest impression that the time for obtaining copies extended upto 12-1-1960 and in this impression he filed the appeal on 8-2-1960. 7. The statements in the affidavit have not been challenged by the petitioner. All that he would say is that in spite of the statements, it has to be accepted that there has been negligence and want of care and attention and that in the face of the Rules, and particularly Rule 113 framed by this Court, the Government Advocate should have known that the period between the date, 31-12-1959 when the copy was completed, and the date, 12-1-1960, when the copies were delivered, both of which dales are mentioned on the copies themselves cannot be excluded for purpose of limitation. Reliance also was placed on the decision Kasimkhan v. Chandratan, AIR 1954 Raj 25 which stated that where an appeal was filed beyond time on the mistaken advice of the pleader who was not conversant with the change in the law of limitation, which had taken place nearly eleven months before the filing of the appeal, it cannot be said that the lawyer had acted with due care and attention and such wrong advice negligently given cannot be a sufficient cause within the meaning of Section 5 of the Limitation Act Another decision relied on was Mohanlal Jagannath v. Tejsingh Thakur Kanyalal. AIR 1958 Madhya Pradesh 96 wherein it was held that though a mistake of the counsel was no doubt a good ground for extension of time under Section 5 of the Limitation Act, the mistake must be a bona fide one and not one which proceeded from misconduct or negligence or want of reasonable skill. The decision of the Punjab High Court, namely, Dina Nath v. Munshi Ram, AIR 1953 Punj 298 was also cited, in which it was held that the mistake of a partys legal adviser as to jurisdictional value and court-fee, which he would have discovered if the legal adviser had only taken the trouble of looking up any elementary book on Court-fees and Suits Valuation Act cannot be said to be bona fide and hence time cannot be extended. 8.
8. There is no doubt that if there has been want of due care and attention on the part of the Advocate for the respondent which will amount to negligence, any mistake in calculating the period of limitation by the Advocate will not be treated as a bona fide mistake and it will not be treated as sufficient cause under Section 5 of the Limitation Act. In this case, we notice that the Government Advocate filed the appeal under the impression that it was within time and that he filed the application for condonation of the delay only when the office pointed out that the period between 31-12-1959 and 12-1-1960 may not be excluded from the period of limitation. It is seen from the judgment of the Supreme Court in Elangbam Mani Singh v. M/s. H.H. Brothers, Civil Appeal No. 295 of 1955, D/- 13-8-1959 (SC) which was a case which went up from this Court, that there is a practice obtaining in Manipur to give a slip to the party who makes the application for copy in which the date when the copy would be ready for delivery is mentioned. Evidently, this practice was due to the reason that people have to come from even Hill areas where transport and communication facilities are very poor. In the present case no such slip appears to have been given. But what was pointed out was that it was put up on the Notice Board on 31-12-1959 that the copy was ready for delivery and that if the applicant for copy does not take the copy when it was so put up on the Notice Board, the date subsequent to 31-12-1959 cannot be treated as the time requisite for obtaining a copy of the decree within the meaning of Section 12(2) of the Limitation Act. My attention in that connection was also drawn to Rule 113 of the General Rules (Civil) 1956 under which the list of copies not delivered has to be affixed on the Notice Board. Rule 113 is as follows : "Copies not delivered to the applicants on the day on which they are ready or on the following day shall be entered in a list which shall be affixed forthwith, to the notice board". For the respondent, it was pointed out that it was on 31-12-1959 that stamps were supplied for being affixed to the copies.
For the respondent, it was pointed out that it was on 31-12-1959 that stamps were supplied for being affixed to the copies. Now if stamps were supplied only on 31-12-1959 and this fact is admitted by the petitioner in his objection filed before the District Judge, it is not known how under Rule 113, this particular copy can be included in the list on 31-12-1959. Rule 113 says that if copy is not delivered to the applicant on the date on which the copy is ready or on the following day, it shall be entered in a list which shall be affixed forthwith to the notice board. Thus, this particular copy which was said to have been completed on 31-12-1959 can at best come on the notice board only on 2-1-1960, because 1-1-1960 happened to be a holiday. Thus, if it was put up on the notice board on 31-12-1959, it was not according to Rule 113. One is also unable to understand why it was not intimated to the respondent by the Copying Department that the copy would be ready on 31-12-1959 itself, that is, on the very day the stamps were supplied. Thus, in a case like this, 31-12-1959 cannot be taken as the date when limitation will begin to run against the respondent. 9. We find from the copy granted to the respondent in the present case that the date of completion of the copy is mentioned as 31-12-1959 and the date of delivery is shown as 12-1-1960. In the column shown as "the reason for delay in presentation of the copy if any", no entry has been made by the Copyist and it is left blank. Actually, this column is intended for the purpose of limitation. It is on this reason for the delay, that the question will arise whether the period between the date of completion of the copy and the date of delivery of the copy should be excluded or included for the purpose of limitation. Thus, when this column is left blank, the Advocate or the party receiving the copy cannot know that the period will not be excluded for the purpose of limitation.
Thus, when this column is left blank, the Advocate or the party receiving the copy cannot know that the period will not be excluded for the purpose of limitation. In fact, in the affidavit of the Government Advocate, he has stated that he was anxious to get the copy after 31-12-1959 and he had to send his clerk to the Copying Department when there was further delay to get the copies and then alone the copies were supplied to him on 12-1-1960. It is also clear that between 2-1-1960 and 12-1-1960, these copies were not put up in the fist under Rule 113 of the General Rules (Civil) 1956. Thus when the Government Advocate found that this column "reason for the delay" was left blank, the period till 12-1-1960 should be excluded from the limitation. Even if it is not to be excluded, we have to accept that there was sufficient cause to explain the delay. Under the circumstances, this Court has to accept that there was no negligence and no want of care and attention on his part. The negligence must be treated as that of the Copyist in not filling up the column reason for delay. The learned District Judge was right in condoning the delay in the present case and in receiving the appeal on file. The revision petition fails and it is dismissed, but under the circumstances without costs. Revision dismissed.