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Allahabad High Court · body

1968 DIGILAW 320 (ALL)

Syed Athar Husain v. Abdul Samad

1968-08-27

J.N.TAKRU

body1968
JUDGMENT J.N. Takru, J. - This revision by the plaintiffs is directed against the order of the learned District Judge, Allahabad dated the 23rd October, 1965, holding that his application to appeal as a pauper was time barred, and granting him time to deposit the requisite court fee. 2. It appears that the applicant instituted a suit against the opposite party which was dismissed on the 30th May, 1964. On the same day the applicants applied for copies of the judgment and decree, which were ready on the 11th July, 1964 and the 15th July, 1964 respectively. The applicants preferred their appeal in the lower appellate court on the 10th of August, 1964 and along with their memorandum of the appeal, filed an application for leave to appeal as a pauper. The opposite parties preferred objections that as the application for leave to appeal as pauper was filed beyond 30 days and there was no provision under the Limitation Act, whereby the period of the limitation could be extended, the said application was time-barred. The learned District Judge took the view that Section 12 of the Limitation Act was not applicable to an application to appeal as pauper, but opined that as the memorandum of appeal accompanying the application had to be accompanied with copies of the judgment and decree appealed against it was only just that where it appeared that the application could not be presented within thirty days due to the reasons enumerated in Section 12, as in this case, the delay in filing the application to appeal as a pauper should be condoned. But as the applicants had not filed any application under Section 5 of the Limitation Act he held that the application to appeal as a pauper must be held to be time-barred. He therefore rejected that application and granted the applicants one month's time to deposit the requisite court fee. Hence this revision. 3. On behalf of the applicants their learned counsel, Shri K. B. Mathur, con-tended that the view taken by the learned District Judge that an application for leave to appeal as pauper did not fall under Section 12 of the Limitation Act, was erroneous and he therefore failed to exercise the jurisdiction vested in him, by refusing to entertain and dispose of his application to appeal as a pauper on merits. In my opinion this contention is well founded. 4. In my opinion this contention is well founded. 4. Now Section 12 of the Limitation Act in so far as it is material for the present purposes reads as follows : - 12 (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review or 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. 5. Section 12 (1) is in general term and applies to all applications. Subsec. (2) however qualifies the word 'application' and con-fines its application to 'applications of three kinds only', viz. (1) an application for leave to appeal, (2) an application in revision and (3) an application for review. The question falling for determination therefore is whether the words 'an application for leave to appeal' are of sufficiently wide import to include an application for leave to appeal as pauper or not? On the plain terms of that sub-section, I see no justification for excluding 'an application for leave to appeal as a pauper from the expression 'an application for leave to appeal'. 6. Shri N. D. Ojha, the learned counsel for the opposite parties contended that as in the Limitation Act prior to the Limitation Act of 1908, the word 'as a pauper' occurred after the words 'an application for leave to appeal' and those words are not to be found either in Section 12 (2) of the Limitation Act of 1908 or the Limitation Act 1963, it would seem that the intention of the Legislature was to exclude an application for leave to appeal as a pauper from the expression an application for leave to appeal' from the corresponding provision in the latter acts. In my opinion no such intention can be attributed to the legislature, if the language of Section 12 (2) of the 1908 and the 1963 Limitation Acts are clear and unequivocal and on its plain meaning includes all types of applications for leave to appeal. It is not disputed that if the provisions of Section 12 (2) and (3) are applicable to application for leave to appeal in forma pauper is then the present application for leave to appeal as pauper is well within time and no application under Section 5 of the Limitation Act is necessary. The view taken by me above is supported by the Full Bench decision of the Kerala High Court in Bhanumathi Amma Rugmini Amma v. Nand Amma Kamalamina, A.I.R. 1964 Ker. 173. 7. Before parting with this case I might mention that the decision relied upon by the Learned District Judge in Ram Charan v. Shri Radha Kishan Ji, A.I.R. 1951 Alld. 242 has not laid down that Section 12 of the Limitation Act does not apply to applications for leave to appeal as pauper. In that case the application for leave to appeal as pauper was filed on the 77th day from the date of the judgment and decree and the time taken in obtaining their copies was only 40 days. Thus the application in that case was 7 days beyond time in any case. As an application under Section 5 of the Limitation Act had been filed this Court held that it was liable to be allowed. 8. Thus for the reasons stated above this revision succeeds and is allowed and the learned District Judge is directed to treat the applicant's application for leave to appeal as pauper as filed within time and to dispose of it in accordance with law. The applicants are entitled to the costs of this revision.