Karanbir Singh vs Smt. Mukhtiar Inder Kaur and another

Mehar Singh, C.J. and Narula, J.—This appeal is admittedly out of time by four days. It is accompanied by an application u/s 5 of the Limitation Act, 1963 (Act 36 of 1963), praying that the appeal may be admitted, in spite of it being out of time by four days under the above section.

The judgment and decree of the Court of first appeal were made on February 16, 1967. An application for copies of the same was made on April 26, and the copies were ready on April 29, 1967. The limitation for filing the appeal was up to May 17, and adding four days spent in obtaining copies of the judgment and decree of the Court of first appeal, the last date for filing the appeal was May 21, 1967. Application for copy of the judgment of the trial Court, which is required to be filed with second appeal under rule 1 of Order 42, read with rule 1 of Order 41. of the Code of Civil Procedure, as applying in this Court, was made on April 24, and the copy was ready on May 9, 1967. So the ap�pellant had copies of the judgment and decree of the court of first appeal on April 29, and copy of the judgment of the trial Court on May 9, 1967, both dates much earlier than the last date for filing the appeal, that is to say, May 21, 1967. The appeal was actually filed on May 25, 1967. This is how it is obviously out of time by four days.

The Learned Counsel for the appellant contends that, although he is entitled u/s 12 of the Act to the exclusion of the time spent in obtaining copies of judgment and decree of the Court of first appeal, he is not entitled to the benefit of that provision so far as the time spent in obtaining the copy of the judgment of the trial Court is concerned, but what is not available to him u/s 12 should be allowed to him u/s 5 of the Act. If his contention is accepted, it would almost amount to giving effect to the provisions of section 12, where those provisions do not apply, under the guise of section 5 of the Act, under which section a different consideration prevails for admit ting an appeal out of time, and that consideration is that the appellant must satisfy the Court that he had sufficient cause for not preferring the appeal within the period of limitation prescribed. The Learned Counsel for the appellant in support of his contention relies upon AIR 1936 1007 (Lahore) , in which the facts were practically parallel to the facts of the present case, and Agha Haidar, J., while admitting the appeal u/s 5 of the Limitation Act observed-"under the rules of the Court an appeal would not be deemed to have been properly presented if the copy of the judgment of the first Court does not accompany the copies of the judgment and decree of the lower appellate Court. It is perfectly true that section 12, Limitation Act, does not make any mention of the judgment of the trial Court in second appeal and the time, which is excluded for the purpose of computing the period of limitation, is that which is taken up in the preparation of the copy of the judgment and decree appealed against; but, having regard to the rules framed by this Court, the appellant can claim the benefit of the provisions of section 5, Limitation Act, and ask the Court for excluding from the period of limitation the time spent in obtaining the copy of the trial Court''s judgment." The learned Judge in support of his approach relied upon George Gowshala v. Balak Ram AIR 1927 Lah. 717 A Division Bench decision of which the judgment was delivered by Tek Chand J., with whom Agha Haidar, J. concurred. In that case application for copy of the judgment of the first Court was made before the expiry of the period of limitation for filing the appeal, but it was supplied some three days after the expiry of that period. The appellant an that case, however, filed the appeal some further nine days after. Tek Chand J. observed under the law the appellant is not entitled as of right to deduct the period spent in obtaining a copy of the first Court''s judgment, but having regard to the fact that the appellant had actually made an application for a certificate copy of that Court''s judgment on 2nd November, 1923, before the Limitation for filing the second appeal had expired, we are prepared to make an allowance of the time actually spent in obtaining that copy, namely, up to the 5th January 1924. If the appellant had filed the copy of the 5th January or very soon afterwards, we would have held the appeal to be within time. But the appellant further delayed the riling of the copy for nine days and no explanation whetever is offered for this delay. * * * * * * * *

(The counsel for the appellant) argued that having regard to the working of section 5, Limitation Act, it was not necessary for him to give any explanation for this delay, if the Court was of the opinion that on the day on which the statutory period of ninety days expired he had sufficient cause for not presenting the appeal. After hearing him we are of opinion that there is no force in this contention. It is settled law that in order to have the benefit of section 5 it is the duty of the appellant to explain the delay for every day that elapses beyond the period allowed by the Limitation Act for filing an appeal. It cannot for instance be said that the existence of sufficient cause for not filing the appeal for a week after the statutory period would justify the laches of the appellant in delaying the presentation of the appeal for a fortnight." It is clear from the later part of the observations of the learned Judge that where indulgence u/s 5 of the Limitation Act is sought, delay of every day is to be explained, and it is further clear that the period spent in obtaining a copy of the judgment of the first Court is not excluded u/s 12 of the Act. In the present case, unlike George Gowshala''s case, application for copy of the judgment of the first Court having been made before the expiry of the period of limitation, copy of the same was also ready before the expiry of that period. So, in substance, the decision in Ghulam Aishan Bibi''s case is really not supported by Goerge Gowshala''s case. In the present appeal no explanation is given for not filing the appeal on May 21, and till May 25, 1967. On May 1967, the appellant had the copies of the judgment and decree of the Court of first appeal and also a copy of the judgment of the first Court. It was, therefore, incumbent upon the appellant to explain every single day''s delay for not filing the appeal to have the benefit of section 5 of Act 36 of 1963. No sufficient cause for such delay is even suggested and no affidavit is made explaining that delay. Obviously section 5 of the Act 36 of 1963 is not attracted to the facts of the present case. Another case reported as Mathra v. Ram Singh AIR 1927 Lab. 747, was also before the same Bench consisting of Tek Chand and Agha Haidar JJ., in which the judgment was delivered by Agha Haidar J., Tek Chand J., concurring with him. On facts, that case is a parallel to the present case because the copy of the judgment of the first Court was ready on the last day of limitation for filing the appeal, but it was filed with the appeal some three days after. Admission of the appeal was sought u/s 5 of the Limitation Act, but the learned Judges did not accept that, Agha Haidar J. observing-"No explanation is forthcoming of the delay in applying for the copy nor has any affidavit been filed on behalf of the appellants explaining the delay so as to bring the case within the provisions of section 5, Indian Limitation Act." So the learned Judges proceeded to dismiss the appeal as barred by time.

The appellant, in this case, had, as already pointed out, the copies of the judgment and decree of the Court of first appeal as also the copy Of the judgment of the first Court with him on May 21, 1967, the last date for filing the appeal, alter excluding, u/s 12 of Act 36 of 1963, the period spent in obtaining copies of the judgment and decree of the Court of first appeal, and yet in another four days no appeal was filed. No sufficient cause is shown why the appeal was not filed for those four days. It is settled that it is the duty of the appellant to explain every single day''s delay when claiming benefit of section 5 of the Act, and no such explanation is forthcoming, indeed none is even suggested. The only argument that has been urged is that although section 12 of the Act does not apply to such a copy, but in substance it should be applied under the guise of applying section 5 of the Act. This is apparently a fallacious argument and not supported by two Division Bench cases, already referred to, George Gowshala''s and Mathra''s cases. So, the appellant''s application u/s 5 of Act 36 of 1963 is dismissed with no order as to costs, and the result is that the appeal of the appellant stands dismissed as barred by time.