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1967 DIGILAW 64 (RAJ)

Chanda v. Nanda

1967-03-20

B.C.MUKERJI, S.L.KAKAR

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This appeal has been preferred against order of the Revenue Appellate Authority, Kota dated 17.4.65. It is unnecessary to go in details of the facts of the case because it can be disposed of on the preliminary point of limitation. Chanda plaintiff, appellant here, filed a suit u/s 183 Rajasthan Tenancy Act against Nonda defendant, respondent here, before the Assistant Collector, Ramganj Mandi which was dismissed. An appeal before the Revenue Appellate Authority Kota met with no success and hence this second appeal. We have heard counsel for the parties and have also perused the record. Counsel for respondent raised a preliminary objection that the appeal is time barred. He pointed out that the appeal has been presented 120 days after the Revenue Appellate Authority had pronounced its judgment. This had been done on 17.4.65 in the presence of counsel for the parties and the appeal had been presented in the Board of Revenue on 16.8.65. Admittedly the limitation prescribed is 90 days. Counsel for the respondent argued that application for copy of the judgment had been presented before the Revenue Appellate Authority on 14.6.65 and this copy had been given on 28 6-65. Counsel for the respondent argued further that these 14 days could be excluded from the period of limitation but not the time spent in obtaining copy of trial courts order. Consequently, after exclusion of the period spent in obtaining copy of order of Revenue Appellate Authority the appeal had been presented after 106 days had lapsed since the judgment of the Revenue Appellate Authority bad been pronounced and so this was barred by limitation. Counsel for appellant cited A.I.R. 1923 Lahore 461 (Chuharmal vs. Beera Ram), A.I.R. 39 Himachal Pradesh 9 (Parasram vs. Devidas) & A.I.R. 1918 Allahabad 389(Narain Singh Sahai vs. Sheo Prasad). Counsel for appellant replied that copies of the judgment of both the first appellate court and trial court were essential and mandatory before the appeal could be filed. This was laid down under Rule 17 of Rajasthan Revenue Courts Manual. Counsel for appellant replied that copies of the judgment of both the first appellate court and trial court were essential and mandatory before the appeal could be filed. This was laid down under Rule 17 of Rajasthan Revenue Courts Manual. He stated that he had applied in the court of the Revenue Appellate Authority for copies of his own judgment as well as that of the trial court but had been given copy of the judgment of the Revenue Appellate Authority only and since then he had procured a copy of the judgment of the trial court also and the time obtained in securing this should be excluded from the period of computation. He had applied for copy of the judgment of the S.D.O. Ramganj Mandi on 15.7.65 received it on 13.8.65 and excluding this period as well as the time spent in obtaining copy 6f the judgment of the Revenue Appellate Authority the appeal was within time. Counsel for appellant cited 1965 RRD page 17 (Sohanlal Chaju-lal vs. Bolia) & 1964 RRD page 338 (Balmukand vs. Board of Revenue). First of all it has to be noted that in the application for copies presented before the Revenue Appellate Authority on 14.6.65 the designation of the trial court had been given as S.D.O. Kota and the date of judgment cited was 25.11.63. Both these were wrong. The trial court which had decided the case originally was S.D.O Ramganj Mandi and his date of judgment was 27.12.63. This mistake was reported by copying section of the Revenue Appellate Authority and the stamp pertaining to the trial courts order was returned to counsel for Chanda on 28.6.65. Apart from the fact that it was entirely due to mistake of counsel of Chanda that he could not get a copy of the trial courts order from the Revenue Appellate Authority. We find that A.I.R. 1918 Allahabad page 389 lays down that an appellant is not entitled to exclude from the period prescribed for filing the appeal, the days spent in obtaining a copy of the judgment of the court of first instance. It was held that the rule requires that no memo of appeal from an appellate decree or from an order shall be presented unless accompanied by a copy of the decree or order appealed against. It was held that the rule requires that no memo of appeal from an appellate decree or from an order shall be presented unless accompanied by a copy of the decree or order appealed against. This rule was not intended to alter and cannot be construed as in any way alter the provisions of Sec. 12 of Limitation Act. A.I.R. 1923 Lahore 461 lays down that only the time requisite for obtaining copy of the order appealed against and of the decree can be excluded but not the time taken to obtain copies of the trial courts judgment. A.I.R. 1952 Himachal Pradesh page 9 lays down that it is incumbent on an appellant in a second appeal to file not only copies of the decree and judgment appealed from but also a copy of the judgment of the court of first instance. No such rule can modify any rule or mode of computation prescribed by the Limitation Act. The appellant in second appeal is, therefore, not entitled to the benefit of the time taken by him in obtaining copies of the judgment of the trial court. These three rulings apply to the case with full force. The rulings cited by the appellant on the other hand have little or no relevancy. 1964 RRD page 338 does not apply, while 1965 RRD page 17 lays down that under Revenue Courts Manual Rule 17 appeal or revision must be accompanied by certified copy of judgment and decree of order appealed against as also a copy of the judgment of the original court. This rule is sound but as has been decided in the judgments quoted by counsel for respondent the period spent in obtaining copies of the judgment of the trial court cannot be excluded under the Limitation Act. In view of the above discussion it is found that the appeal of Chandra presented here is time barred and liable to be dismissed on that count and we order accordingly.