BHAGAT RAM v. BASANT RAM — 1981 DIGILAW 22 (HP)

JUDGMENT H. S. Thakur, J. (Oral).—The appellants have filed this application under Section 5 read with Section 12 of the Indian |Limitation Act praying that the time taken for obtaining the copy of the judgment and decree of the lower appellate Court, from 12-6-1979 till 22-8-1979 be condoned. The undisputed facts are that the lower appellate court dismissed the appeal of the appellants on 8-6-1979. An urgent application for obtaining the copies of the judgment and decree sheet was filed on 12-6-1979. It is stated in the present petition that according to the practice the urgent copies of judgment and decree had to be supplied within 48 hours. The copies were, however, not prepared within that time. The appellants are stated to have visited the office of the Copying Agency several times, but no date was given by which the copies would be ready. The copies were ultimately delivered to the appellants on 22-8-1979 though the same had been prepared and attested on 26-7-1979. It is contended by the learned counsel for the appellants that in case the period from 26-7-1979 to 22-8-1979 is excluded or condoned, the appeal would be within limitation This fact is not disputed even by the learned counsel for the respondents. 2. It is contended by Shri K. D. Sud, the learned counsel for the respondents, that the appeal is patently barred by limitation for the reason that the appellants have not explained the delay in obtaining the requisite conies from the Copying Agency from. 26-7-1979 till 22-8-1979. It is further contended that even if the copies were obtained by the appellants on 22-8-1979, they could still file the appeal by 24-10-1979, whereas the appeal was filed on14-11-1979 It is further contended that the appeal was not properly filed as the attested copies of the judgment of the trial court were not filed therewith. It may be pointed out that the appellants had filed a separate application for dispensing with the filing of the judgment of the trial court or extending time to file an attested copy thereof afterwards. That application is numbered as C M P No. 1727 of 1979 and shall be decided separately. 3. There are rules framed for the supply of copies of record, under the control of Deputy Commissioners in Himachal Pradesh. That application is numbered as C M P No. 1727 of 1979 and shall be decided separately. 3. There are rules framed for the supply of copies of record, under the control of Deputy Commissioners in Himachal Pradesh. Rules 1.19 and 120 may be reproduced for a ready reference which deal with urgent applications for supply of copies :— "1.19. Urgent applications to take priority over ordinary applications.— Orders made on urgent applications shall have priority over all orders made on ordinary applications; orders on urgent applications and orders on ordinary application shall have, as far as possible, priority among themselves, according to the date and serial number of each order, subject to any special! orders in any particular case or cases. 1.20. Prompt delivery of urgent copies.—An applicant for an urgent copy shall be entitled to have his copy furnished to him, if possible, by the second working day after the filing of the application." It is not disputed that an urgent application for the supply of copies was made on behalf of the appellants. As pointed out earlier above, the copies were not supplied to the appellants by the second working day. The learned counsel for the appellants has referred to a decision in Shikhr Chane v. Krishan Chand [1968 P. L. R. (Del Sec.) 363]. In this judgment Mr. Justice I. D. Dua has observed that a litigant applying for a copy cannot be expected to go to the Copying Department every day to enquire as to when his copy would be ready. Such a position will be untenable for it is both impracticable and unreasonable and also unjust. The applicant is entitled to be informed as to when his copy will be ready, otherwise the delay in securing the same could not be made rigidly to go against him. Reliance has also been placed on a judgment in Madan Singh and others v. Puran Singh and others [A. I. R. 1926 Lah 84]. The learned Judge while dealing with this aspect of the matter observed that where the delay in producing the copy of the decree was due to the office, not informing the applicant of the date when the copy would be ready, limitation under Section 5 of the Limitation Act will be extended. Similar is the view taken in Rura Mai v. Ram Chand [A. I. R. 1936 Lah 200]. Similar is the view taken in Rura Mai v. Ram Chand [A. I. R. 1936 Lah 200]. In this judgment it was observed by the learned Judge that the copying department is a department under the control of the Deputy Commissioner and is a branch of the Deputy Commissioners office. Once this position is established, it follows that no person can be damnified on account of the laches, ignorance or negligence of any official attached to a department connected with the administration of justice. 4. The learned counsel for the respondents has referred to a decision in Shakuntla Devi Jain v.Kanta Kumari and others [1968 D. L. T. 528]. It was a decision in a case where the application for obtaining copies of the judgment and decree was made long after the expiry of the period :of limitation prescribed for appeals. Under the situation no question of excluding the time spent in obtaining the copies arose. 5. It is further contended by the learned counsel for the respondents that even if the copy of the decree and the judgment of the lower appellate court was supplied to the appellants on 22-8-1979, the appeal could be preferred till about 24-10-1979. Therefore, the appellants have been highly negligent in not filing the appeal within that period. On this account, it is contended that the appeal deserves to be dismissed as barred by limitation. 6. The question which is to be determined in this application is whether the time between the preparation of the copy and taking delivery thereof can be condoned/excluded or not, under the present facts and circumstances. As observed earlier above, the copy of the judgment and decree sheet was delivered to the appellants on 22-8-1979 and not within the normal period. As such, if this time is excluded, the appeal is apparently within limitation. 7. Looking at the facts and circumstances of the case, and bearing in mind the fact that no intimation about the preparation of the copies was sent to the appellants and the same was also not supplied to them within the normal time whereas the application for the same was made on urgent -basis, I am of the view that the application deserves to be favorably considered. A litigant is not supposed to visit the office of the Copying Agency every day. A litigant is not supposed to visit the office of the Copying Agency every day. As such, the appellants are reasonably entitled to the exclusion of the period from the date of the preparation of the copies and the actual date of delivery of the same to the appellants. The expression "sufficient cause" used in Section 5 of the Limitation Act has been designedly left undefined because so varied and unpredictable are the permutations and combinations of human behaviour and conduct that it is neither possible nor desirable to visualise all the future contingencies that may require consideration of the question of extension of the prescribed period. Accordingly, one cannot formulate a rigid rule of universal application serving all possible eventualities as a straight jacket, and each case falls for decision on its own peculiar circumstances. This provision is inspired by the anxiety felt by the Legislature to advance substantial justice by providing for cases of delay caused by circumstances beyond reasonable control of the applicant, considered from a practical point of view in the background of the common course of human conduct and all the relevant circumstances. 8. For the foregoing reasons, I am of the view that the period that elapsed between the preparation of the copies of the decree and judgment and the delivery thereof to the appellants is to be excluded. Accordingly, the application is allowed. C. M. P. No. 1727 of 1979. 9. This is an application filed by the appellants praying that the production of the copy of the judgment of the trial court may either be dispensed with or the time be granted for producing the same. 10. It may be pointed out that the appellants Have already filed an attested copy of the judgment of the trial court on 3-3-1981. This application came up for consideration on 1-10-1980. The learned counsel for the respondents, however, prayed for time to file reply to this application. The reply was filed, but the application was ordered to be decided along with C. M. P. No. 1726 of 1979. 11. It is contended by the learned counsel for the respondents that since the copy of the judgment of the trial court was not filed along with the appeal and also no specific ^orders were passed by the court on this application, the appeal was not properly constituted and deserved to be .dismissed. 11. It is contended by the learned counsel for the respondents that since the copy of the judgment of the trial court was not filed along with the appeal and also no specific ^orders were passed by the court on this application, the appeal was not properly constituted and deserved to be .dismissed. He has referred to the decisions in Karambir Singh v. Smt. Mukhtiar Inder Kaur [1968 P. L. R. 438] and Shiv Dutt Sharma v. Prem Kumar Bhatia [1969 D. L. T. 394]. So far as this Court is concerned, sitting as a Single Judge I have to follow the view taken by this Court in Finun v. Gianu [1976 ILR (HP Series) 76]. The learned Single Judge of this Court in that case observed as follows :— "The difficulty arises because of Rule 2 (b) of Chapter I-A of Vol. V (ibid) because it lays down that a copy of the judgment of the trial court must be filed along with grounds of appeal unless the same is dispensed with by the Judge. Firstly, the said copy has been dispensed with for the reasons stated by me above; secondly, to me it appears the rule is neither statutory nor mandatory. A Division Bench of this Court has held in C. M. P. No. 655 of 1975 arising from F, A. O. No. 6 of 1975 titled : Union of India v. Shri Vishwa Nath Sud and another, decided on June 6, 1975, that the rules of the court other than those specified in Chapter XXI of Vol. I are neither statutory nor mandatory. The Division Bench was considering Clause (xv) of Rule 1 of Chapter III-B of the Rules of the Court, and held that the said clause was neither statutory nor mandatory. A similar view can be taken for Rule 2(b) of Chapter I-A of Vol. V, which is sought to be applied in the present case In view of that Division Bench decision of this Court, it is not difficult to hold in the present case that the said rule is neither statutory nor mandatory. As such non-compliance of the said rule shall not make the memorandum of appeal incompetent on 8-22-1969." 12. V, which is sought to be applied in the present case In view of that Division Bench decision of this Court, it is not difficult to hold in the present case that the said rule is neither statutory nor mandatory. As such non-compliance of the said rule shall not make the memorandum of appeal incompetent on 8-22-1969." 12. As pointed out earlier above, the application had been filed along with the appeal which remained undecided, but in the mean time the appellants submitted the attested copy of the judgment of the trial court. Under the circumstances, the application is allowed and the delay, if any, in filing the attested copy of the trial court judgment is condoned. Application allowed.