Chanan Ram and others vs Raj Kumar

Prem Chand Jain, C.J.—Raj Kumar Plaintiff-Respondent filed a suit for possession of the house in dispute on the allegations that he had purchased the same vide sale deed dated Ist July, 1955, from its previous owner Smt. Lal Devi. The suit was contested by Defendants (Petitioners). The parties led evidence. The trial Court did not find any merit in the suit and consequently dismissed the same, leaving the parties to bear their own costs.

Feeling aggrieved from the judgment and decree of the trial Court, Raj Kumar Plaintiff-Respondent filed an appeal. He also moved an application u/s 5 of the Limitation Act for condonation of delay, if any, in filing the appeal. He alleged that the judgment of the trial Court was pronounced on 10th October, 1984, and application for a certified copy was made on the same day. Copies were ready for delivery on 27th October, 1984, and were actually delivered on 29th October, 1984. The last day of limitation for filing of appeal expired on 27th November, 1984, which was a holiday, so the appeal was filed on the next working day i. e. 28th November, 1984. It was further alleged in the application that calculations were somewhat doubtful and there was a likelihood that the Defendants may raise an objection regarding the limitation. So, in order to avoid such a situation, extension of limitation was sought on the ground that according to calculations of the Appellant the limitation expired on 27th November, 1984, and, the mistake, if any, in calculation may be condoned and the appeal be entertained.

The application was resisted on behalf of the Defendants.

On behalf of the Plaintiff, contention was raised that the judgment was announced on 10th October, 1984 and he was entitled to the reduction of one day u/s 12(1) of the Limitation Act i. e. the day from which the limitation is to be reckoned, and that he was also entitled to avail another day u/s 12(2) of the Limitation Act as the day requisite for obtaining a copy and in this way the applicant was entitled to the reduction of 18 days and the appeal was thus within time. In support of this contention, reliance was placed on the judgment in Balkrishna Rajaram Modi v. Baijnath Girdhari Lal Tiwari and other A. I. R. 1939 Nag. 150., and of this Court in Kashmir Singh v. The Municipality Karnal 1983 P. L. J. 22. The learned District Judge followed the two decisions and consequently held the appeal to be within time.

Feeling aggrievd from the said order of the learned District Judge, the Defendants have preferred this revision. It came up for motion hearing before a learned Single Judge on February 11, 1986, when the following order was passed:

It is contended by the learned Counsel that the judgment was pronounced on 10th October, 1984 and on the same day the application for the copy was given. The appeal was filed on 28th November, 1984. In case 10th October is excluded, the appeal could be filed upto 26th November, 1984. However, the Court excluded 10 October twice, i. e., as the date for pronouncement of the judgment and as the date of applying for the copy which could not be done. Notice of motion for 11th March, 1986.

Final order be not pronounced till further orders." Thereafter, on March, 18, 1986, when the learned Counsel for the Respondents had put in appearance, the learned Judge passed the following order as follows:

It has been pointed out by Mr. Ashok Bhan that it was held in A. I. R 1924 Lah 599 that if the application for copies of the judgment and decree is filed on the date on which the judgment is pronounced, that day cannot be excluded twice. However, a different view was taken by a learned Single Judge of this Court in 1983 P. L. J. 22 dissenting with the said view. The learned Counsel contends that the learned Single Judge could not dissent with the view of Lahore High Court while sitting singly. Admitted D. B.

This is how we are seized of the matter-

We have heard the learned Counsel for the parties and find no merit in this petition.

Mr. Ashok Bhan, Senior Advocate, learned Counsel appearing for the Petitioner, contended that when an application for copies is made on the same day the judgment is pronounced, that day cannot be excluded twice, once as the day on which the judgment was pronounced and the second time as one of the days requisite for obtaining copies and that the appeal filed by the Respondent before the learned District Judge was time barred. In support of his contention, reliance was placed on a Single Bench in Ata Muhammad v. Ptr Khan A. I. R. 1924 Lah. 599. On the other hand, Mr. Verma, learned Counsel appearing for the Respondent, reiterated the stand taken before the learned District Judge and also placed reliance on those very decisions which were referred before the District Judge. We have considered the contentions of the learned Counsel for the parties and find no merit in this petition.

In Balkrishna Rajaram Modi''s case (supra) Niyogi, J. who agreed with the view of Chief Justice Stone, has dealt with a similar question in detail thus:

The material part of S. 12, Limitation Act, is as follows:

In computing the period of limitation prescribed for an appeal, an application for a 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 from or sought to be reviewed, shall be excluded.

It is evident that in computing the period of limitation prescribed for appeal, two periods are to be excluded: the day on which the judgment is pronounced, and (ii) the lime, i.e., the days requisite for obtaining copy of the decree. The first period is excluded by operation of law and the second by act of the party. The first is unconditional and absolute, and the second in conti-gent on the making of an application for copies. The first is excluded whether such an application is made or not. It is clear that they are distinct and separate in their purpose. The day on which the judgment is pronounced would invariably be a fraction of a calendar day and the law ignores or eliminates that day absolutely so as to ensure to the party concerned as many complete days as are prescribed for any suit or appeal or application. Thus in the case of appeals, the Appellant would have clear 90 days under Article 156. The copying time is excluded because the Appellant is unable to appeal without filing a copy of the decree if not of judgment. The necessity of filing the copy imposes on the Appellant a disability which he works off by applying for it. The law, therefore, allows him to deduct the days lost in obtaining the copy from the prescribed period of limitation. It cannot be reasonably contended that the day on which the application for copy is made is not a day re-quiste for obtaining the copy. It is, therefore evident that an Appellant is entitled to a deduction of the number of days beginning with the day on which he applies for to the day which he obtains the copy from the number of clear days of limitation prescribed by the statue. This conclusion is supported by the express wording of S. 12. It may be that in an exceptional case, such as the present, one day happens to be excluded twice. However startling, fantastic or absurd it may appear to be, the Courts cannot refuse to give effect to the plain meaning of the words used by the Legislature, if it does not conflict with reason and justice. As I have indicated above, there is nothing fundamentally unjust or unreasonable in excluding the same day twice. If, as Batten A. J. C. remarked in 13 N L R 89, the period of limitation is the actual period beginning on a certain date, not an abstract number of days, there is no reason why it should not be regarded that the time requisite for obtaining copy is the actual period beginning on a certain dale, i. e. the date on which it is applied for, not an abstract number of days. In both cases it should be the actual period which should be computed.

If S. 12 (2) is put in a concrete form so as to make it applicable to appeals, it would read as follows: In computing 90 days prescribed for an appeal..... the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree.....shall be excluded. The meaning is plain that period which is taken up in the preparation of copy should be excluded from 90 days. A question may arise whether the Appellant would be entitled to a deduction of the period even when he applies before the judgment is pronounced. My answer is positively in the negative. There can be no preparation of a copy when the original itself is non existent. The case is however different when the judgment is pronounced and the preparation of a copy is possible. The Appellant has the right to apply for copy as soon as the judgment is pronounced and the delivery of the copy is only a question of time. It cannot therefore be disputed that the day on which he applies for copy after the judgment is pronounced is a day requisite for obtaining copy. If so, that day must be excluded from the prescribed period of limitation, i.e. to say 90 days. It must be noticed that Batten A. J. C. himself excluded it, but he excludes it from the time requisite for obtaining copy. That is evidently contrary to the enactment which excludes it from the prescribed period of limitation because it includes it in the period requisite for obtaining copy.

With respect we are in full agreement with the view aforesaid as the same is more appealing than the view taken in Ata Muhammad''s case (supra) wherein there is not much discussion on the point. In this view of the matter, agreeing with the view taken in Balkrishna Rajaram Modi and Kashmir Singh''s cases (supra) we hold that the appeal filed before the learned District Judge was. within time. We further find that the view taken in Ata Muhammad''s cast (supra) does not lay down correct law.

Consequently, we dismiss the revision petition but in the circumstances of the case, make no order as to costs.