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1991 DIGILAW 438 (BOM)

Eble Egnesis Anthony v. T. Ramlingam Thuwal Swamy Pillay & others

1991-09-10

M.S.DESHPANDE

body1991
JUDGMENT - DESHPANDE M.S., J.:---This revision application is directed against the order passed by the 14th Additional District Judge, Nagpur, rejecting the objection raised by the applicant to entertain the appeal which, according to the applicant, was barred by time. 2. There is no dispute about the fact that if the time taken by one Shri Jadhao, Advocate in obtaining the copies were to be excluded, the appeal filed by the respondents would be within time. The objection is only to the using of the copy obtained by Advocate Jadhao for getting the benefit of section 12(2) of the Limitation Act. 3. The applicant, respondent No. 1 before the lower Appellate Court, objected to the appeal being entertained, on the basis of the copies obtained by Shri R.S. Jadhao, Advocate, on the ground that Shri Jadhao had no authority to obtain the certified copy on behalf of the respondents, because he had not filed either his power or Vakalatnama on behalf of the respondents in the lower Court and so the copy, which was obtained by Shri Jadhao, in the absence of a valid power, could not be used for excluding the time taken in obtaining the copy, under section 12(2) of the Limitation Act. Though the reply, which the respondents had given to that application, has not been annexed in the present case, the main part of the reply on which the applicant relied is given in extenso in para 3 of the revision application, in which it was contended for the respondents that the authority of Shri Jadhao to apply for the copy on behalf of the respondents cannot be challenged by the applicant and, if at all, it would be the respondents who could take steps, if they felt aggrieved, but in any event, Shri Jadhao's memo of appearance was on record of Civil Suit No. 131 of 1983, from which the appeal arose, and so Shri Jadhao was authorised to apply for the certified copy. In any event, it was contended that there could be nothing more than a procedural irregularity which could be cured at any time. To this, the applicant's contention was that Shri Jadhao had been authorised only for paying the process-fee and for no other purpose. 4. In any event, it was contended that there could be nothing more than a procedural irregularity which could be cured at any time. To this, the applicant's contention was that Shri Jadhao had been authorised only for paying the process-fee and for no other purpose. 4. Shri Sadawarte, learned Counsel for the applicant, contended that though under sub-section (2) of section 12 of the Limitation Act, in computing the period of limitation for an appeal or an application, the time requisite for obtaining a copy of the decree, sentence or order appealed from, or sought to be revised or reviewed, shall have to be excluded, what is implicit in the provision is that the time should have been taken by the party who was appealing or applying, and if the party had not taken any steps for obtaining the copy, no time could be excluded. Reliance was placed on several authorities. In the (State of Himachal Pradesh v. Kaidia)1, 1952 Criminal Law Journal 313, the position was that no steps whatsoever for obtaining the copy of the judgment had been taken by the Government and the Government used the copy obtained by the father of the deceased for preferring the appeal from acquittal. It was, therefore, held that though there is nothing in section 12 which requires that the application for a copy of the judgment should have been made by the Government or by somebody proved to have been acting in the matter as its agent, the act should, ultimately, be attributable to the Government, and since the copy, on which the appeal was preferred, had not been obtained by the Government and the action was not attributable to the Government, benefit of sub-section (2) of section 12 could not be taken by the Government. In (Ram Kishan Shastri v. Kashi Bai)2, I.L.R. (29) Allahabad Series 264, the learned Judges observed as follows : "We think it would be unduly restricting the language of section 12 of the Limitation Act if we were to hold, as did the lower Court, that the application for a copy of the judgment must necessarily be by the appellant or somebody proved to have been acting in the matter as her agent. The language of section 12 is very general. It provides that the time requisite for obtaining a copy of the decree shall be excluded in the computation of time. The language of section 12 is very general. It provides that the time requisite for obtaining a copy of the decree shall be excluded in the computation of time. The section does not say by whom the copy is to be obtained, nor does it introduce the words which have been suggested as necessarily embodied in the section, showing that the copy must be obtained for the purposes of an appeal." In (Jijibhai N. Surty v. T.S. Chettiyar)3, A.I.R. 1928 P.C. 103, it was pointed out that the word "requisite" is a strong word and it may be regarded as meaning something more than the word required. It means "properly required" and it throws upon the pleader or Counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. It is not necessary to refer to the other cases on which Shri Sadawarte relied, because there the controversy was not the same as is here, as to the scope of sub-section (2) of section 12 of the Limitation Act, and whether it required the copy to be obtained by some one at the instance or otherwise of the appellant. 5. Miss Sarin, learned Counsel for respondents Nos. 1 and 2, pointed out that in (Union of India v. M/s. Ibrahim Gulaba Tubacco Merchant)4, A.I.R. 1966 Madhya Pradesh 52, the Madhya Pradesh High Court went so far as to say that it is immaterial who obtained those copies, and all that is required is that only those copies, which are actually filed with the appeal, are to be taken into account for the purpose of section 12 of the Limitation Act. The Court further observed that it was not the Court's concern, for the purposes of that appeal, to enquire into the truth of the allegations made in the respondent-plaintiff's affidavit, that the copies which were borrowed from the other side had been misappropriated by the appellant, as that was the look out of the respondent who may resort to such legal remedy as restoration of possession of those copies. With respect, it is not possible for me to go as far as the learned Judges went in considering the provisions of section 12(2) of the Limitation Act. I find that what is to be seen is whether obtaining the copy was attributable to the appellant. 6. With respect, it is not possible for me to go as far as the learned Judges went in considering the provisions of section 12(2) of the Limitation Act. I find that what is to be seen is whether obtaining the copy was attributable to the appellant. 6. Though an objection was raised before the lower Appellate Court about the manner in which the reply came to be filed by the non-applicants to the objections raised by the applicant, in that, the reply was signed only by the Counsel, the applicant overlooked the fact that even the application raising objections had not been signed by him but his Advocate. There was no verification to either the objections raised by the applicant or the reply which was filed by the non-applicants to the objections. The obvious position, however, was that Shri Jadhao had, at one stage, put in his memo of appearance in Civil Suit No. 131 of 1983 for the non-applicants, and it was he who applied for and obtained the certified copies which accompanied the memo of appeal. Since the copies obtained by Shri Jadhao had been used by the non-applicants, it followed that the act of the non-applicants had been ratified. In (Hyderabad Import Export Co. v. United Trading Co.)5, A.I.R. 1958 Andhra Pradesh 652, it was pointed out that the relation between a pleader and his client is, in the final analysis, no more and no less than that of principal and agent, and the client may ratify the acts of his pleader, and ratification means previous authority. In (Raghunath Devi v. Administrator, Srinagar Municipality)6, A.I.R. 1962 Jammu Kashmir 83, also it was held that Rule 4 of Order 3 of the Code of Civil Procedure is only a directory provision, and substantial compliance of Order 3, Rule 4 is achieved in a case where the pleader makes an application with the consent of a party and subsequently files a formal Vakalatnama duly executed by that party. 7. In the circumstances of the present case, when the action taken by Shri Jadhao, Advocate, was only for applying for a certified copy of the judgment and decree, it was not really necessary to have a Vakalatnama filed for the purpose. 7. In the circumstances of the present case, when the action taken by Shri Jadhao, Advocate, was only for applying for a certified copy of the judgment and decree, it was not really necessary to have a Vakalatnama filed for the purpose. All that was necessary was that the application should have been made at the instance of the appellants, and having regard to the fact that Shri Jadhao had at one time filed his memo of appearance in the case, it is not necessary to look for any more authority for his act of applying for the certified copies and making those copies available to the non-applicants for filing the appeal. 8. Shri Sadawarte took me in quite some detail to the provisions of Chapter XXVI of the Civil Manual and the other provisions of the Limitation Act and section 41 of the Bombay Civil Courts Act. It is not necessary to go into all those technicalities, because all that is necessary for ascertaining in order that the time for obtaining copies may be excluded, is that the act of applying for the copies should be attributable to the appellant. That position obtains here, and no exception can, therefore, be taken to the view taken by the Court below. 9. In the result, I see no merit in this Revision Application. Rule discharged with costs. Rule discharged. -----