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2018 DIGILAW 635 (RAJ)

Shanker Ram v. O. I. C.

2018-02-23

DINESH MEHTA

body2018
ORDER : 1. The Registry/Stamp Reporter has raised an objection about the competence of the appeal, pointing out that the appeal is time barred by 41 day. On perusal of the calculation made by the Stamp Reporter, it transpires that while calculating the delay aforesaid, the Office has not given deduction of the entire period spent in obtaining the certified copy viz. 02.05.2013 to 18.06.2013, more particularly for the period after 09.05.2013, as according to the Office, the certified copy was ready on 09.05.2013; the due date for delivery of the copy. 2. The endorsement in terms of Rule 234 of General Rules (Civil), 1986 exhibited on certified copy of the order dated 30.04.2013 runs as under:- Mr. V.L. Thanvi, learned counsel appearing for the appellant contended that the calculation of the delay as made by the Registry is incorrect. He submitted that the Office has not given deduction of the days lapsed after preparation of the certified copy viz. 09.05.2013 upto the date of receipt of the same i.e. 18.06.2013. He contended that admittedly, the notice intimating the fact that the copy is ready had not been issued, and until and unless the notice in this regard, as contemplated under Rule 240 of the General Rules (Civil), 1986 is issued, the period lapsed between the date of filing of the application for obtaining copy and the date of receipt of the certified copy is required to be excluded. He further asserted that though Rule 239 of the Rules, 1986 enjoins upon the Copying Department to intimate the definite date, but there is no such practice or mechanism to intimate the due date, when the copy will be ready. 3. In support of his contention, learned counsel for the appellant Mr. Thanvi, has filed his own affidavit, indicating therein that he had applied for obtaining certified copy of the order dated 30.04.2013 on 02.05.2013 and while applying the same, the Copying Section of the Tribunal below had not intimated him the expected date of preparation of the copy. He further emphasized that there is no procedure, practice or system in the Tribunal below or Sub-ordinate Courts, even by the Registry of this Court to intimate the applicant about the date when the copy will be kept ready. He further emphasized that there is no procedure, practice or system in the Tribunal below or Sub-ordinate Courts, even by the Registry of this Court to intimate the applicant about the date when the copy will be kept ready. It will not be out of place to reproduce the contents of the affidavit filed by the learned counsel for the appellant:- “That for obtaining the certified copy of the decision dated 30.04.2013. I applied for the same on 02.05.2013. On 02.05.2013 the office of issuing the certified copy did not give any particular date of preparation of the certified copy and when it was likely to be prepared. But subsequently when I found that the date of issuance of the certified copy was given on 09.05.2013 and it was prepared on that very day by the office but this I could now only on 18.06.2013 when I went to know as to whether the applied copy is ready or not. So far the notice of copy prepared, was not at all issue in this duration. However, I could obtain the copy on 18.06.2013 and the appeal was fined by me on 16.09.2013 as per the instruction of my client.” 4. Without prejudice to his stand that the appeal has been filed within the prescribed time, if calculated properly, he submitted that as an abundant caution, he has filed an application under Section 5 of the Limitation Act, seeking condonation of the delay and prayed that the delay, if any, be condoned. 5. Per-contra, Mr. Rajesh Choudhary, learned counsel appearing for the respondents submitted that the issue involved/ sought to be agitated by Mr. Thanvi, is squarely covered by Full Bench decision dated 24.07.2015 rendered in S.B. Civil First Appeal No.646/2011 titled as Om Prakash V. Smt. Shashi & Anr., wherein this Court upholding and approving the view taken by a Division Bench in case of Suresh Kumar Sharma V. Idol Laxmanji Maharaj, reported in 1973 RLW 160, has held as under:- “23. We have discussed in detail the various facts of these Rules above and for avoiding reputation, we would like to mention that whereas Rule 234 occupies the applicability of the period when the copy is not ready but is expected to be ready, Rule 235 comes into operation after the certified copy is ready. This situation is too patent and requires no further elucidation. This situation is too patent and requires no further elucidation. We are, therefore, of the view that the notice regarding preparation of copy which is ready under Rule 235 of the Civil Rules cannot be a substitute for the notice under Rule 234 notifying the date when the copy is expected to be ready. 6. Mr. Rajesh Choudhary, learned counsel for the respondents and other learned Counsels were however ad-idem about the position that the Registry of this Court or even the Subordinate Courts do not intimate the person applying for obtaining certified copy, about the date when the certified copy would be ready. 7. I have heard learned counsels for the parties and examined the law on the subject; including the following judgments:- (i) Om Prakash Vs. Smt. Shashi & Anr. (S.B. Civil First Appeal No.646/2011), decided on 24.07.2015. (ii) Surja Ram Vs. Krishan Lal, reported in 1993 3 CCC 207 . (iii) Ram Lal Vs. Bhanwari Devi, reported in 1984 RLW (Raj.) 605. (iv) Moolchand Soni Vs. Virendra Kumar, reported in 1981 RLW (Raj.) 121. (v) Suresh Kumar Sharma Vs. Idol Laxmanji Maharaj, reported in 1973 RLW (Raj.) 160. (vi) Mangilal Vs. Sitaram, reported in AIR 1957 Raj. 339 . 8. As far as the Full Bench decision dated 14.07.2015 of this Court is concerned, the same lays down that after the notice under Rule 240 (the earlier Rule 235) of the General Rules (Civil), 1986 parametria and Rule 897 (iv) of Rajasthan High Court Rules, 1952 has been issued, if the person does not collect the certified copy, deduction of the period after issuance of the notice cannot be given, but if no such notice has been issued and the copy is not ready on the due date, the applicant shall be entitled to claim deduction of the entire period from the date of application to the date of receipt of the copy. 9. However, the question as to whether the period spent between the date when the copy is ready and the date of obtaining certified copy, when no notice under Rule 240 of the General Rules (Civil), 1986 has been issued, is still a gray area, as no law has been cited by any of the parties on this issue. 10. 9. However, the question as to whether the period spent between the date when the copy is ready and the date of obtaining certified copy, when no notice under Rule 240 of the General Rules (Civil), 1986 has been issued, is still a gray area, as no law has been cited by any of the parties on this issue. 10. It is to be noticed that the due date given for preparation of copy, as indicated in the endorsement was 09.05.2013 and the copy was ready on such date i.e. 09.05.2013. However, the applicant omitted or neglected to take the copy on such date and even thereafter though it was lying in the office. The question which arises for consideration in the present case is, as to whether the applicant can claim deduction of the days till the copy is actually taken/received/obtained by him? 11. For the purpose of exclusion of time lapsed in obtaining certified copy, Section 12 of the Limitation Act is the enabling provision, which reads thus:- “12. Exclusion of time in legal proceedings. - (1) In computing the period of limitation 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 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. (3) … … … (4) … … ...” 12. A perusal of sub-section (2) of Section 12 of the Limitation Act reveals that the legislature has used the expression “the time requisite for obtaining a copy of the decree”………….; while providing for exclusion of time in relation to preparation of the judgment/decree. It is not simply the time for obtaining a copy of the decree, sentence or order simplicitor; and the time for obtaining has further been qualified by the use of word ‘requisite’, which in considered opinion of this Court, has its own implication and bearing. It is not simply the time for obtaining a copy of the decree, sentence or order simplicitor; and the time for obtaining has further been qualified by the use of word ‘requisite’, which in considered opinion of this Court, has its own implication and bearing. Conscious use of adjective ‘requisite’ shows legislative intent of providing exclusion of only that part of the time, which is required or is requisite for obtaining a copy of the decree or judgment and not the entire time consumed in taking or obtaining a copy of the decree. 13. The expression “requisite” implies something more than required. The proper connotation rather essence of such expression is that the time indicated or prescribed for obtaining the certified copy alone can be excluded. 14. It will not be out of place to reproduce relevant Rules 239 & 240 of the General Rules (Civil) 1986, which deal with the preparation and supply of certified copy of the order, which read as under:- “239. Date of delivery of a copy. - 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. 15. If for any reason, the copy is not ready for delivery on the date so fixed, the applicant or his authorized agent shall be directed to attend on another date, when the copy may be expected to be ready for delivery, and his signature or thumb impression as the case may be, shall be obtained on the application. 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 charges, if necessary postal charges have not been deposited, it shall be affixed on the notice board of the court, and an entry to this effect shall be made on the application. 240. Delivery of a copy when ready. - When a copy is ready, and the applicant or his authorized agent is present, the copy shall be given to him. 240. Delivery of a copy when ready. - When a copy is ready, and the applicant or his authorized agent is present, the copy shall be given to him. If the applicant or his authorized agent is not present a notice under the signature of Office-in-charge shall be affixed to the notice board notifying that the copy is ready for delivery. If from the date of affixing of the notice, the applicant appears within two months the copy shall be delivered to him. If the applicant does not appear within this period, the copy shall be destroyed under the orders of Officer-in-charge and an entry to this effect being made in the remarks column in the register of copying applications (Reg.11).” 16. A close and conjoint reading of Rule 239 & 240 of General Rules (Civil) 1986 reveals that as per Rule 239 a definite date not ordinarily exceeding 7 days ahead shall be fixed for the delivery of the copy and intimated to the applicant; and as far as possible, the copy shall be delivered on the date so fixed. Second para of Rule 239 requires a notice to be given to the applicant, if the copy is not ready for delivery on such date fixed by the Court. 17. Whereas Rule 240 of the Rules of 1986 provides that when a copy is ready and the applicant is not present to collect the copy, notice under the signature of Officer-in-charge shall be affixed on the notice board informing that the copy is ready for delivery. The notices envisaged under Rule 239 & Rule 240 of the Rules of 1986 operate in entirely different spheres and are meant for different purposes. The notice under 239 of the Rules of 1986 is a notice intimating the date, when copy will be ready; while notice under Rule 240 of the Rules of 1986 is a notice intimating the factum of copy being ready for delivery. The effect of the notices under Rule 239 & 240 of the Rules have different consequences. Issuance of notice under Rule 239 of the Rules, 1986 does not stop the clock of limitation from running whereas a notice under Rule 240 freezes the time clock at least for the purpose of calculation of limitation or exclusion of time as provided under sub-section (2) of Section 12 of the Limitation Act, 1963. 18. Issuance of notice under Rule 239 of the Rules, 1986 does not stop the clock of limitation from running whereas a notice under Rule 240 freezes the time clock at least for the purpose of calculation of limitation or exclusion of time as provided under sub-section (2) of Section 12 of the Limitation Act, 1963. 18. In the present case neither notice under Rule 239 nor under Rule 240 had been issued, nevertheless the Copying Department of the Court, pursuant to the appellant’s application dated 02.05.2013 had fixed the date of 09.05.2013, as the date of giving copy which is 7th day from the date of the application in terms of Rule 239 of the Rules of 1986. As such, accepting the version of the leaned counsel for the appellant-applicant as echoed by learned counsels present in the Court that the date when the copy will be kept ready or the due date is never intimated to the applicant, the period of 7 days being maximum period, as provided in Rule 239 of the Rules alone can be reckoned, as the ‘requisite time for obtaining the copy’. 19. In that view of the matter even if the expected date of preparation of copy is not intimated to the applicant, a party would be entitled for exclusion of 7 days only, as the Copying Department/Registry is not expected to give a date later than 7 days ahead of the date of the application. 20. Notice under Rule 239 of the Rules becomes relevant only if the copy is not ready on the date indicated in the endorsement or within the period prescribed under Rules 237 & 238 of the Rules of 1986; whereas the notice contemplated under Rule 240 of the Rules is required to be issued, if the applicant fails to take the copy, after it is prepared. 21. In light of the aforesaid discussion, if the facts of the present case are examined, it is apparent that the Copying Department had fixed/notified the date of preparation of the copy as 09.05.2013, pursuant to the application filed by the applicant on 02.05.2013. 21. In light of the aforesaid discussion, if the facts of the present case are examined, it is apparent that the Copying Department had fixed/notified the date of preparation of the copy as 09.05.2013, pursuant to the application filed by the applicant on 02.05.2013. Even if it is accepted that the applicant/Counsel for the applicant was not informed of such date, an applicant was required to bear in mind that the date for preparing the copy can not be beyond 7 days ahead of the date of application, as contained in Rule 239 of the Rules. As such an applicant is entitled to claim reduction of 7 days only, if the copy is ready within such statutory period. 22. The judgment cited by Mr. Choudhary and the cases cited therein are distinguishable on the facts, inasmuch as in all the cases the copy was admittedly not ready on the date mentioned in the endorsement and the same came to be prepared on the date subsequent thereto and no notice under Rule 239 of the Rules was issued and in some cases, notice under Rule 240 of the Rules was issued. Whereas, in the present case, the certified copy was ready on 09.05.2013, the date fixed and indicated in the endorsement or within the time prescribed under Rule 239 of the Rules of 1986. 23. In this view of the matter, it was required of the applicant/his Counsel to contact the Office on 09.02.2013 or immediately, thereafter to collect the copy which was lying with the Copying Section. It is true that till date of receipt of the copy i.e. 18.06.2013, no notice under Rule 240 of Rules, 1986 had been issued. But in the considered opinion of this Court, the notice contemplated under Rule 240 of the Rules is only an intimation to the party of the fact that the copy is ready and such notice is meant for the purpose of warning the applicant that if he does not turn up to collect the same, the copy so prepared shall be destroyed. Non issuance of the notice under Rule 240 of the Rules does not enlarge the period of limitation and irrespective of the fact that the notice under Rule 240 had been issued or not, the party concerned is not entitled to claim curtailment of the period. 24. Non issuance of the notice under Rule 240 of the Rules does not enlarge the period of limitation and irrespective of the fact that the notice under Rule 240 had been issued or not, the party concerned is not entitled to claim curtailment of the period. 24. According to this Court, in light of Rule 239 of General Rules (Civil) 1986, an applicant is expected to go and collect the copy on the 7th day, even if he is not informed or intimated about the date of preparation of the copy. An applicant can claim reduction of the period till issuance of notice under Rule 240 of the Rules of 1986, only if he can prove that the copy was not ready up to the 7th day of the date, when he had filed an application for the copy. 25. In view of the discussion aforesaid, this Court is of the considered opinion that the appellant-applicant is not entitled to claim subsumption of the period from 09.05.2013 to 18.06.2013 as the requisite time in obtaining the copy, as the copy was ready on the 7th day of the application; being the due date. 26. This Court taking cognizance of the fact that there is no mechanism to inform the date on which the copy shall be ready, as envisaged under Rule 239 of the Rules directs that the concerned Copying Department while receiving the copying application would inform the applicant about the date on which the copy shall be kept ready and in absence of such intimation, the expected date shall be treated to be the next working day when it is an urgent application and 7th day ahead of the date of the filing of the application, if the application is ordinary as provided under Rules 237 and 238 of the Rules of 1986 respectively. If the copy is ready during the period of 7 days, the maximum period of 7 days shall be considered excludable for “for the purpose of sub-section 2 of Section 12, which uses the expression “time requisite for obtaining the certified copy”. If the stance of the appellant is accepted, it would do violence with Rule 239 of the Rules of 1986 and an applicant would be given undue advantage or premium of his lackadaisical attitude of not bothering to collect the copy, which is lying ready with the Court. 27. If the stance of the appellant is accepted, it would do violence with Rule 239 of the Rules of 1986 and an applicant would be given undue advantage or premium of his lackadaisical attitude of not bothering to collect the copy, which is lying ready with the Court. 27. As an upshot of the above discussion, this Court sustains the Office objection and holds that the appeal has been filed with a delay of 41 days. Having held so, this Court proceeds to consider the appellant’s application under Section 5 of the Limitation Act. 28. The applicant has asserted in his additional affidavit filed in support of the application under Section 5 of the Limitation Act that the Office has not intimated the appellant about the date, on which the copy shall be kept ready, for which, the Counsel approached the Registry/Copying Section on 18.06.2013 to collect the copy and receive the same. 29. It is rather surprising that despite receiving the certified copy on 18.06.2013, the appellant has allowed a period of three months to pass and filed the instant appeal only on 16.09.2013. A reading of the application under Section 5 of the Limitation Act reveals that the appellant was under impression that the appeal is required to be filed within a period of 90 days from receipt of the copy, and since he had received the copy on 18.06.2013, the appeal may be filed by 15.09.2013. 30. Though such understanding of law of the appellant, as has been held hereinabove is incorrect and untenable, but since there was no law on this issue, this Court accepts the explanation of the appellant that he was bona fide of this opinion that appeal can be filed within 90 days of the receipt of the copy. 31. The delay of 41 days is bona fide though based on incorrect interpretation of law. However, the same deserves to be condoned and is hereby condoned. 32. The application under Section 5 of the Limitation Act is allowed. 33. The appeal be registered as a regular appeal and be listed for admission after two weeks.