Bhag Singh and Others vs Radhey Sham and Another

J.V. Gupta, J.—Landlord Radhey Sham sought the ejectment of his tenants Bhag Singh and others from the house, in dispute, situated in Ludhiana. The Rent Controller passed the eviction order on 23rd May, 1983. Appeal against the said order of the Rent Controller was filed on 22nd July, 1983. Since the certified copy of the order of the Rent Controller for which the application was made on 1st June, 1983, was not available, an application was filed that the tenants be allowed to file the appeal without the certified copy although an uncertified copy of the impugned oretr of the Rent Controller was filed along with the memorandum of appeal. The appeal was duly admitted and notice was issued to the landlord. After the landlord was served, he moved an application to the effect that the appeal was barred by time because earlier, the tenants as well as the landlord had made separate applications for obtaining the certified copies of the impugned order of the Rent Controller on 23rd May, 1983, the day the order was passed by him. The copies thereof under Order XX, Rule 6-B, Code of Civil Procedure, (for short, the Code), were made available to the parties on 30th May, 1983. Even the rules have been framed by this Court in this behalf in the year 1982. It was also prayed that since the certified copies had also been made available to the tenants, the appeal could be filed by them within 15 days thereof. Therefore, the appeal filed by them on 22nd July, 1983, was barred by time Reply was filed to the said application on behalf of the tenants. It was admitted that the application for obtaining the copies under Order XX, Rule 6-B of the Code was made by their counsel, but it was stated that the same was of no consequence because the appeal was filed with an uncertified copy of the impugned order and the application for obtaining the certified copy thereof was filed within time, i.e, on 1st June, 1983 and that from the date, of the Rent Controller order dated 23-5-1983 the appeal was within time. The learned Appellate Authority came to the conclusion that when the first certified copy under Order XX, Rule 6-B was made available on 30th May, 1983, the period of limitation started from that date and that the appeal having been filed on 22nd July, 1983, was barred by time Consequently, the appeal was dismissed as time-barred. Dissatisfied with the same, the tenants have come up in revision to this Court.

The learned Counsel for the Petitioners contended that even if it be assumed that the copy of the order of the Rent Controller dated 23rd May, 1983, was obtained on 20th May 1983, under Older XX, Rule 6-B of the Code, even then what is to be seen for computation of limitation is the certified copy of the order appealed against, filed in the appeal and if the appeal is within time according to the same, then the appeal could not be dismissed as barred by time, simply because earlier the copy was made available on 30th May, 1983. In support of the contention, the learned Counsel relied upon State of Uttar Pradesh Vs. Maharaj Narain and Others, , Kolikipudi Atchamma and Others Vs. Kolikipudi Keti and Another, On the other hand, the learned Counsel for the Respondent submitted that tenants were entitled to the requisite period spent on obtaining the first copy which according to the learned Counsel was supplied en 30th May, 1983 and, therefore, the limitation started from that day. In support of the contention, the learned Counsel relied upon Mahabir Vs. 4th Additional District Judge, Fatehpur and Others, and Joint Agrl. Marketing Advisor v. Baby 1983 (1) S. L. R. 484.

I have heard the learned Counsel for the parties and have also gone through the case law cited at the bar

It may be stated at the outset that it is not disputed that if it be assumed that no copy of the order of the Rent Controller was obtained till (sic)th May, 1983, the appeal filed on 22nd July, 1983, with uncertified copy thereof was within limitation because the application for obtaining a certified copy of the order of the Rent Controller was made on 1st June, 1933. Thus, the only question to be decided in this appeal is as to whether the appeal filed on 22nd July, 1983, was barred by time because the type written copy of the order of the Rent Controller under Order XX, Rule 6-B of the Code, was made available on 30th May, 1983, to the tenants.

In Maharaja Narain''s case (supra), the provisions of Section 12(2) of the Limitation Act, (hereinafter called the Act) came up for consideration before the Supreme Court It provides for exclusion of time in legal proceedings It stipulates that in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of 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 or sought to be reviewed, shall be excluded. In paragraphs 6 and 7 of the judgment, their Lordships observed,-

It was not disputed on behalf of the Respondents that it was not necessary for the Appellant to apply for a copy of the order appealed from immediately after the order was pronounced. The Appellant could have, if it chose to take the risk, waited till the ninety days period allowed to it by the statute was almost exhausted. Even then the time required for obtaining a copy of the order would have been deducted in calculating the period of limitation for filing the appeal Hence the expression ''time requisite'' cannot be understood as the time absolutely necessary for obtaining the copy of the order. What is deductible u/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-section (2) of Section 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 eider 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 Section 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 provision.

If the appellate Courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from, it would be unworkable. In that event every time an appeal is filed, the Court not only will have to see whether the appeal is in time on the basis of the information available from the copy of the order filed along with the memorandum of appeal but it must go further and hold an enquiry whether any other copy had been made available to the Appellant and if so, what was the time taken by the Court to make available that copy. This would lead to a great confusion and enquiries into the alleged laches or dilatoriness in respect not of copies produced with the memorandum of appeal but about other copies which he might have got and used for other purposes with which the Court has nothing to do.

Thus, it is evident that the Court has to see whether the appeal is within time or not from the copy of the order filed along with the memorandum of appeal. As observed earlier, it is not disputed in the present case, that the appeal will be within limitation when it was filed on 22nd July, 1983, because the application for obtaining the certified copy was filed on 1st June, 1983 which was made available on 10th August, 1983, and meanwhile the appeal was filed with the uncertified copy of the order because the tenants, on account of the urgency of the matter, wanted to obtain the stay order. In that situation, it becomes immaterial if the tenants obtained the type written copy earlier under Order XX, Rule 6 B of the Code. Since, in the present case, the application for obtaining the certified copy which was to be filed along with the appeal, was made within limitation, the appeal as such was certaintly within limitation when it was filed on 22nd July, 1983, and could not be dismissed as barred by time. The authorities relied upon by the learned Counsel for the Respondent are clearly distinguishable and have no applicability to the facts of the present case.

In Mahabir''s case (supra), it was observed that it was only the time requisite for obtaining the certified copy which could be excluded u/s 12 of the Act. In the said case, from the material on the record, it was found that the State claimed a different right by directing copying department to prepare ft second copy for its benefit. In these circumstances, it was observed therein,-

It should further be seen that while excluding the period u/s 12 of the Limitation Act, what it material is not the date of delivery of the copy to the applicant but the date when the copy is ready. When in the facts of the instant case, there was complete lack of diligence in getting the delivery of the copy, the State could not be allowed to get advantage of such lack of diligence.

In Baby''s case (supra), (sic) was Section 5 of the Kerala High Court Act, 1959, which came up for consideration before the Division Bench of the Kerala High Court and as such, the said decision also has no applicability to the facts of the present case.

As a result of the above discussion, this revision petition succeeds and is allowed. The impugned order is set aside. The Appellate Authority is directed to decide the appeal on merits in accordance with law. The parties have been directed to appear before it on 19th December, 1983.