Javri Lal v. Hazari Singh — 1979 DIGILAW 265 (RAJ)

S.K. MAL LODHA, J.—This revision application by the decree-holder is directed against the order of the learned District Judge, Pali, dated August 24,1978, by which, he dismissed decree-holders appeal on the ground that it was lodged beyond the prescribed period of limitation. 2. The relevant facts necessary for the disposal of this revision are these. 3. The petitioner, vide suit No. 19 of 1979, obtained a decree on September 18, 1974. Execution was levied. The judgment-debtor-non-petitioner preferred objection under sec. 47, C.P.C. The objection of the judgment-debtor was accepted by the learned Civil Judge on April 7, 1976 and the decree-holder was directed to take possession of the shop marked as OPQR and not EFGH in the plan, which was submitted by the judgment-debtor. Being aggrieved by the afore-mentioned order, dated April 7, 1976, the decree-holder preferred appeal before the District Judge, Pali on May 18, 1976. On September 8, 1976, an application under sec. 5 of the Limitation Act (for short the Act) supported by the affidavits of Shri Kewalchand and Shri Jaswantraj, Advocate, was filed. The appeal was registered subject to objection of limitation on Nov. 2, 1976. Summonses were ordered to be issued to the judgment-debtor-non-petitioner and the appeal was fixed for arguments, on the point of limitation, on December 10, 1976. The learned District Judge, by his order dated August 24, 1978, dismissed the appeal as barred by time. While dealing with the application under sec. 5 of the Act, the learned District Judge recorded a finding that the advice opinion given by the learned counsel for the decree-holder was not bonafide. 4. Feeling dis-satisfied with the order of the learned District Judge, dismissing the appeal being time barred, the decree-holder has come to this Court in revision as aforesaid. 5. Having heard the learned counsel for the parties I am satisfied that no interference can be made with the order under revision. 6. The learned Civil Judge, passed the order on April 7, 1976. The decree-holder applied for its certified copy on April 16, 1976. The date fixed for issuing the copy was April 23, 1976. The copy was ready on April 23, 1976. As the delivery was not taken on the date when the copy was ready, notice was issued on May 1, 1976. After that, the copy was delivered on May 4, 1976. The date fixed for issuing the copy was April 23, 1976. The copy was ready on April 23, 1976. As the delivery was not taken on the date when the copy was ready, notice was issued on May 1, 1976. After that, the copy was delivered on May 4, 1976. The appeal was filed, as stated above, on May 18, 1976. It is not in controversy between the parties that if the period between April 23, 1976 and May 1, 1976 is excluded, the appeal before the learned District Judge was presented in time. 7. Learned counsel for the petitioner, on the basis of rr. 234 and 235 of the General Rules (Civil), 1952 (hereinafter referred to as the Rules) contends that the petitioner is entitled to get the period from April 23, 1976 to May 1, 1976 excluded being time requisite in obtaining the certified copy of the order appealed against. I may here read rr. 234 and 235 of the Rules, which are as under: "234. A definite date not ordinarily exceeding seven days ahead shall be fixed for the delivery of the copy and intimated to the applicant. The copy, as far as possible shall be delivered on the date so fixed. If for any reason, the copy is not ready for delivery on the date so fixed, the applicant shall be directed to attend on another date, when the copy may be expected to be ready for delivery. If the copy is not ready and the applicant does not appear on the date fixed, notice of the next date fixed for the delivery of copy shall be sent to him by post, if he has deposited the necessary postal chargas. If necessary postal charges have not been deposited, it shall be affixed on the notice board of the court." "235. When a copy is ready, and the applicant or his authorised agent is present, the copy shall be given to him. If the applicant or his authorised agent is not present, a notice over the signature of the head of office shall be affixed to the notice board notifying that the copy is ready for delivery. If from the date of the fixing of the notice, the applicant appears within three months, the copy shall be delivered to him. If the applicant or his authorised agent is not present, a notice over the signature of the head of office shall be affixed to the notice board notifying that the copy is ready for delivery. If from the date of the fixing of the notice, the applicant appears within three months, the copy shall be delivered to him. If the applicant does not appear within this period, the copy shall be destroyed under the ordar of the Presiding Offiicer, an entry to that effect being made in the remarks column in the register of copying applications." 8. According to r. 234 of the Rules the date ordinarily not exceeding seven days ahead is required to be fixed for the delivery of the copy and intimation of this date is to be given to the applicant. This is required to be done at the time of the presentation of the application for copy. It further provides that if the copy for certain reasons is not prepared on the date fixed, then the applicant is to be asked to attend on another date to be fixed, by which copy is expected to be ready for delivery. This is for the contingency when the copy is not ready for delivery on the date fixed and the applicant comes on that date. The other contingency is when the copy is not ready and the applicant fails to appear on the date fixed, then, according to r. 234, notice of the next date fixed for delivery of the copy is required to be sent to the applicant by post provided he has deposited the necessary postal expenses and in case of non-deposit of the postal-charges, the notice is to be affixed on the notice board. It is, thus, clear from r. 234 of the Rules that on the date, when the application for copy is made, date for delivery of copy is to be fixed and intimated. In case the copy is not ready, procedure to be adopted when the applicant appears on the date fixed and when he does not appear on the date fixed, has been laid down in it. R. 235 of the Rules provides for procedure when the copy is ready. It lays down that it shall be delivered either to the applicant himself or to his authorised agent. R. 235 of the Rules provides for procedure when the copy is ready. It lays down that it shall be delivered either to the applicant himself or to his authorised agent. Provision has been made in r. 235 regarding contingency when the copy is ready and the applicant or his authorised agent does not come to take its delivery. In such a contingency, it has been enjoined that a notice over the signature of the head of office should be affixed on the notice board notifying that the copy is ready. In case, the applicant or his authorised agent appears within three months from the date fixed, copy is required to be delivered to the applicant and if the applicant, or his authorised agent does not appear to take delivery of it within a period of three months, it has been made incumbent to destroy it under the order of Presiding Officer and an entry to that effect is required to made in the register of copying applications. 9. The contention of the learned counsel is that from rr. 234 and 235, it can safely be inferred that the period when the copy is ready on the date fixed for its delivery and the date when the notice, as required by r. 235 is affixed on the notice board that delivery of the copy be taken within a period of three months from the date of its affixation, is time requisite under sec. 12 (2) of the Limitation Act, and, thus, the applicant is entitled to claim its exclusion. Learned counsel for the petitioner, therefore, submits that the copy was ready on April 23, 1976 and notice was affixed on May 1, 1976, the petitioner is entitled to the exclusion of the aforesaid period as time requisite. 10. For a better appreciation of the contention of the learned counsel for the petitioner, reference may be made to Sec. 12 (2) of the Limitation Act, which runs as under : "S. 12 (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." In State of U. P. Vs. Maharaja Narain (1), it was observed: " The expression time requisite cannot be understood as the time absolutely necessary for obtaining the copy of the order. What is deductible under S. 12 (2) is not the minimum time within which a copy of the order appealed against, could have been obtained. It must be remembered that sub-sec. (2) of S. 12 enlarges the period of limitation prescribed under entry 157 of schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the Application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in his application for a copy of the order. A plain reading of S. 12(2) shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the time taken by the court to make available the copy applied for, have to be excluded. There is no justification for restricting the scope of that provison." The expression time requisite was again examined in G. K. Das vs. S. N. Biswas (2). Chandrachud, J., as he then was, speaking for the court observed as under :— "The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently." Time requisite is not always the time, actually spent in securing the copies. The whole question is what was the time taken for obtaining of the copies. In this case, date fixed for delivery of the copy was April 23, 1976. The copy was ready on that day. The petitioner or his authorised agent, as the copy was ready on that day, should have gone to take delivery of the copy on the date fixed for issuing it. As the copy was ready on that day, it would have been delivered to the petitioner had he gone there. The copy was ready on that day. The petitioner or his authorised agent, as the copy was ready on that day, should have gone to take delivery of the copy on the date fixed for issuing it. As the copy was ready on that day, it would have been delivered to the petitioner had he gone there. Time taken from the date of presentation of the application for copy i.e. April 16, 1976 and the date when the copy was ready i. e. April 23, 1976 (which was also the date fixed for issuance of copy) is only the time requisite for obtaining the copy under sec. 12(2) of the Act. What is contemplated by r. 235 of the Rules is that when the copy is ready on the date fixed and the applicant or his authorised agent does not take its delivery on that date, then before destroying it, a notice is to be given informing the applicant that if he does not come within a period of three months from the date of affixing notice, the copy shall be destroyed. I find it difficult to agree with the learned counsel that even when, the copy was ready on the date fixed about which the applicant had intimation, still he would be entitled to the exclusion of the period between the date when the copy was ready and the date when the notice was affixed informing him that copy is ready for delivery. This, in my opinion, cannot be said to be the time requisite for obtaining copy within the meaning of sec. 12(2) of the Limitation Act. In this view of the matter, the period from April 23, 1976 to May 1, 1976 cannot be said to be time requisite for obtaining the copy and the petitioner was not entitled to its exclusion. It follows, therefore, that the appeal, which was presented before the learned District Judge, was beyond time. 11. The learned District Judge rightly dis-believed the version of the petitioner that Kewalchand, Mukhtiarknas of the decree-holder, went to take delivery of the copies on April 23, 1976 and that they were not ready. It follows, therefore, that the appeal, which was presented before the learned District Judge, was beyond time. 11. The learned District Judge rightly dis-believed the version of the petitioner that Kewalchand, Mukhtiarknas of the decree-holder, went to take delivery of the copies on April 23, 1976 and that they were not ready. I agree with the learned District Judge that the version is wrong, for, the simple reason that no application was moved by him before the officer-in-charge that the copy was not ready on the date fixed and that when he went to take delivery on the date fixed, he was not directed to attend on another date when the copy was expected to be ready for delivery. The certified copy which was submitted with the memo of appeal, shows that the date fixed for issuing the copy was April 23, 1976 and on that day, the copy was ready. The version given by Kewalchand, Mukhtiarknas of the decree-holder was, therefore, wrong. The finding in this regard cannot be interfered within this revision. 12. Learned counsel next argued that Shri Jaswant Raj, Advocate, gave the advice that period from April 23, 1976 to May 1, 1976 will be excluded and the petitioner acted on this advice, and as it was a bonafide, one, this constitutes sufficient cause under sec. 5 of the Limitation Act and so, the period should be excluded. After examining this aspect in detail, the learned District Judge observed :— ^^mDr foospu ls ;g Li"V gksrk gS fd ;ksX; vfHkHkk"kd vihykFkhZ }kjk nh xbZ jk; lnHkkouk iw.kZ ugh Fkh D;ksfd og mis{kk iw.kZ rjhds ls nh xbZ FkhA^^ This was not shwon that in arriving at this conclusion, the learned District Judge has exercised his jurisdiction illegally or with material irregularity. This finding, thus, calls for no interference by this Court. 13. No other point survives for my consideration. The result is that this revision application has no force and it is, accordingly, dismissed. In the circumstances of the case, I leave the parties to bear their own costs.