Kaushal Prasad vs Moolchand Alias Mula Agrawal

S.C. Pandey, J.

This appeal u/s 100 of the Code of CPC is directed agaisnt the judgment and decree dated 3.3.1989 passed by Second Additional Judge, Raigarh in Civil Appeal No. 2-B of 1988 arising out of judgment and decree dated 15.4.88 passed by 3rd Civil Judge Class-II, Raigarh in Civil Suit No. 77-B of 1987.

The Court below has dismissed the appeal filed by Defendant on the ground that it is barred by time by three days, according to the following computation made by it. The trial Court passed the decree on 15th April, 1988, the application for certified copy of the decree was filed on 20th April, 1988 and the copy was received on 3 June, 1988. The appeal was filed on 30, June, 1988. The time requisite for filing the appeal was held to be the entire time consumed between 20 April 1988 to 3 June, 1988. The Lower Appellate Court computed this time as 44 days. The appellate was required to file appeal within 30 days. The Lower appellate Court found that after excluding 44 days as time requisite, the appeal should have been filed on 74th day (30+44). The 74th day was 27 June, 1988. Thus the appeal filed on 30th June, 1988 was held to be barred by three days. It was accordingly dismissed.

This Court by order dated 30.6.89 admitted the appeal and framed the following substantial question of law.

(i) Whether considering the explanation clause of Section 12 of the Limitation Act, the appeal before the lower Appellate Court was barred by Limitation.

(ii) Whether in the facts and circumstances of the instant case, the Lower Appellate Court was required to afford opportunity to explain the delay, if any, in filing the appeal.

The learned Counsel for the Appellant, Shri A.D. Deoras, at out-set argued that even according to the view taken by the Court below, the appeal could not be held to be barred by three days. It was submitted that the Court below failed to excluce two days. The day the certified copy was applied for and the day on which the copy was received have to be excluded. It excluded only one day whereas both the aforesaid days were liable to be excluded. Further the Court below did not exclude the day on which the judgment was delivered. The copying time would be 45 days, and excluding the date of delivery of judgment, the appeal would be barred by only one day.

In the opinion of this Court the contention of learned Counsel appears to be correct that the last day of filing the appeal was 29th June, 1988 and not June, 30, 1988. According to the Section 12 (1) of the Limitation Act, 1963 the date from which the limitation has to be reckoned should not be counted. Section 12 (2) of that Act, inter alia, provides that for calculating the time requisite for an appeal under the Code of Civil Procedure, the day on which the judgment was delivered together with time requisite in obtaining the certified copy of the decree shall be excluded. The period for obtaining certified copy would be excluded only if it amounts to time requisite within the meaning of the Section 12 (2) of the Limitation Act, 1963. It is well settled that the words ''time requisite'' mean the time properly required. It would include only that time which the Court spent in preparing the certified copy without any fault on the part of person applying for certified copy. The rules for applying for and obtaining a certified copy applicble to the Court would come into play. In this particular case there is no default of the Appellant. He is, therefore, entitled to exclude entire period for obtaining the certified copy of the decree between 20 April to 3 June 1988 (both the days inclusive). This period would be 45 days. If we exclude the day on which the judgment was delivered, the appeal filed on 30 June, 1988 was on 77th day and not on 76 day. It should have been filed on 75th day i. e. 29 June, 1988. Thus the conclusion of the Lower Appellate Court, that the appeal is barred by three days on the mode adopted by itself wrong. On its own computation, the Court below should have held that appeal is barred by one day.

The learned Counsel for the Appellant further contended the Court below should have given the Appellant the benefit of the explanation appended to Section 12 of the Limitation Act, 1963. It was contended that in terms of the explanation itself the Appellant was entitled to exclude the time taken in the preparation of the decree after the application for certified copy was applied for. This period was to be excluded in addition to the time taken in obtaining the certified copy. The Learned Counsel for the Appellant relied upon the decision in the case of Udayan Chinubhai v. R.C. Ball reported in AIR 1977 SC 2319. It was argued that after filing of the application for certified copy on 20th of April the Court prepared the decree on 21st of April. Thus two days have to be further excluded. It was further arggued that the Appellant should have been given an opportunity to explain the delay.

The Learned Counsel for the Respondent the argument that the explanation appended to the Section 12 (ibid) could not be read in the manner suggested by the Counsel for the Appellant. It was submitted that the Appellant had already excluded April 20 and April 21 as time requisite for obtaining the certified copy. There was no scope for excluding the two days again. It was further contended that the Appellant did not file any application for condonation of delay within the Court below or in this Court and therefore there is no question of giving the Appellant further opportunity.

The contention raised by the Learned Counsel for the Appellant depends upon the question, what is the meaning of time requisite u/s 12 (2) of the Limitation Act, 1963. It is well established that the time requisite ''means the time'' properly required and, therefore, the Court is powerless to add more than the time exact time required for obtaining the certified copy. It follows that a person claiming exclusion of time requisite in obtaining a copy of the decree or order or must prove that the time spend in obtaining the copy was required by him without any default on his part.

We may briefly consider the principles of interpretation of an act like the Limitation Act. The Limitation Act 1963 or for that matter any other law providing for limitation of time to bring an action is restrictive of the right of a party to initiate an action beyond the period prescribed. The Legislature does not encourage stale claims recognizing the harsh reality that the life of human beings is short and even more so the human memory. The march of inexorably time not only, gradully and stealthily niggles at the life time of human being but also disturbs the wealth of memory at their command by making it misty and unclear. A stale claim makes it difficult for a Judge to find out true facts and would make the decision based more on judicial hunch rather than on facts. There is another reason for limiting the actions by prescribing time. Life abhors to pay thrvydom. It prefers stability and continuity. The legislatures is too procognize this fact and want the things to settle down to a particular level. In that sensee the statute of limitation is an statute of ''repose''. There is further reaspon for prescribing limitation. The law of Limitation closes the flood gates of litigation and thereby controls it. It is in the interest of state that it should not be overwhelmed by litigation. Therefore the limitation of action is provided for some what arbitrarily by the statute of limitation. It reflects less than an ideal situation because it militates against the ideal that one and all are entitled to get justice. The purport of the above exercise is to emphaize the fact the limitation Act, 1963 is to be read as an enactment limiting the substantive rights of the parties by barring the remedies. The rule of interpretation for such a statute is to construe its word strictly. It is like penal or taking statute. We have to look to litera legis to find out the sententia legis. The literal interpretation is favoured because the courts do not want to enlarge the scope of a restrictive statute by the process of interpretation. The construction of the statute is grammatical and natural. There is hardly any room for judging the intendment or considering any other equitable question when the language of the statute is clear. This view has been taken in number of cases. AIR 1932 165 (Privy Council); AIR 1941 6 (Privy Council) AIR 1962 SC (716) (Purushothaman v. State of Kerala) AIR. 1941 SC (856) (M/s Bundelkhand Motor Transport Co. v. Behari lal Chaurasia). However this principle of statutory construction even in a statute of restriction, must give way to the broad principle of finding out the true intention of legislature, when the words ued by the legislature are not free from difficulty.

The Section 12 of Limitation Act 1963 is being reproduced herewith in order to deal with the argument of the learned Counsel.

Section 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 any 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) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.

(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded."

Explanation -In computing under this Section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

The Court is now required to construe the words ''time requisite'' as are used in Sub-section (2) (3) and (4) of Section 12 of the Limitation Act, 1963 in order to solve the contraversy raised by the Learned Counsel for the Appellant. The ''time requisite'' has to be excluded from the period prescribed for limitation for appeal or an application in aforesaid clauses so that a party is enabled to file an appeal or an application mentioned therein. The words ''time requisite'' has to be construed strictly rather than liberally as they are used in a statute of limitation. The idea behind the exclusion of time requisite it that a party cannot file an appeal or an application properly unless it obtains a certified copy of the judgment and decree or the order impugned. It would be obvious, where the rules of the Court of the procedural law, require filing of acertified copy alongwith the memo, of appeal or application, it may be impossible to file the appeal or application, if time taken in preparation of the copy is more than period prescribed in case the time for the preparation of the certified copy is not excluded. Even otherwise a litigant would not be entitled to get full time prescribed by the legislature in case the certified copy is not given on the date of judgment or the order. Thus the intention of the legislature was to give full time prescribed by it. Therefore, ''time requisite'' for obtaining the certified copy was directed to be excluded. There was no intention to give more than ''time requisite'', that is to say, the time which was strictly required for filing the appeal or application. The extension of the benefit of Section 12 has also been given to those cases where it not necessary to file a certified copy on the analogy that the certified copy would still be necessary for filing an appeal or application and a party can claim exclusion of time. However Courts are unanimous in their opinion that ''time requisite'' must be construed as that which is properly required ''see. AIR 1928 P.C. 103 (Jijibhoy N. Surty v. T. S. Chettyara a firm); Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, .

It would be clear that key words in Sub-section (1) (2) (3) and (4) are "shall be excluded". All the Sub-sections Section 12 talk of period liable to excluded. There should be no two opinions that the aforesaid Sub-sections are referring to ''exclusion'' of time from the period of Limitation prescribed. If the explanation is read in the light of the aforesaid Sub-sections it would be clear that it clarifies what time" shall not excluded". If we read the key words'' shall be exluded" in Sub-section (1) (2) (3) and (4) of Section 12 with the words shall not be excluded'' in the explanation, it would be clear the word excluded used in Section 12 has the same meaning through out. The text of the aforesaid section gives, what is to be excluded and the explanation provides, what is not be excluded. It is as simple as that. There appears to be no ambiguity. Therefore there was no room for any doubt that the Legislature had used ambigous words in the explanation.

However what is plain and obvious, may some time escope the legal mind which is prone to interpret a statute on a priors-considerations based on its previous experience or predelictions. So the Full Bench of the Bombay High Court reported in Subhash Ganpatrao Buty and Another Vs. Maroti and Others, disargeeing with the decision of a Lerned Single Judge of that Court reported in AIR 1968 Bom (104) Rupchand v. Smt. Heera and AIR 1973 Gau (83) Chunnilal Balaji and Others Vs. State of Madhya Pradesh, (Chunnilal V. State of M.P.) had taken the view that the words ''shall not be excluded'' had an independent existence in the context. These words meant ''shall be excluded''. It is very surprising that a wealth of learning was bestowed on as to previous history etc. for interpreting the words contrary to avowed intention of Legislature. Apart from the reasoning given in that case, the Court also had the support of The State of Bihar Vs. Md. Ismail and Others, AIR. 1970 Cal (443) (Krishna Sardar V. Sindhu Bala); Radharam Sohanlal Vs. Abanindra Nath Mitter, ; Koutuki Sabatani Vs. Raghu Sethi, ; Mst. Shahjahan Begum and Another Vs. Zahirul Hasan, . It appeared that these authorities were not in favour of grammatical construction of the explanation. The explanation was interpreted, as if the same was not meant to explain, what shall not be excluded u/s 12 (2), 12 (3) and 12 (4) of the Act as time requisite. It is interesting to note that the Full Bench and cases that were relied upon by it went on to the extent of saying that Parliament changed the explanation given by Law Commission in order to express different intention. The object and reasons of the enactment of the explanation were not accepted. It was held that the language does not fultil the object and reasons.

Although, in the view of this Court it was not necessary to go into Legislative history, it would be proper to traverse through it in order to examine the view of the several Courts which interpreted explanation to Section 12 contrary to intention expressed in the object and reasons for its enactment. It may be noted that Section 12 of Limitation Act, 1908 was in similar terms without any explanation. There was a difference of opinion between the various High Court regarding the exclusion of time taken in preparation of the decree u/s 12 of the Limitation Act. 1908. The majority of the High Courts like Bombay, Calcutta, Patna, Nagpur and Assam had taken the view that time taken In preparation of decree is liable to be excluded irrespective of the fact, whether an application for certified copy was made prior, to preparation or thereafter. The time taken for preparation of decree was treated as ''time requisite'' for obtaining a copy of decree and was held to be excludible from the prescribed period of Limitation. The contrary view was taken by Allahabad High Court. The majority view has confirmed in Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, subsequently. The Law Commission was aware of difference of opinion and it had recommended that time taken in preparation of decree prior to filing of the application for copy should not be permitted to be excluded as time requisite. In fact it prepared an explanation and recommended that it should be accepted. The explanation sought to be added by the Law Commission was as follows:

Explanation -Any time taken by the Court to prepare the decree or the order before an application for copy thereof is filed for shall not be regarded as time requisite for obtaining the copy with the meaning of this Section

The drafts-man of the Act retained the explanation to Section 12 but changed the language and instead stated that the time taken for preparation of decree prior to filing of the application shall not be excluded. It is interesting to note that in the object and reasons for re-enacting Section 12 of Limitation Act, 1963, it was stated that the explanation was being added to make it clear that the dealy in preparation of decree prior to filing of application for the certified copy shall not be excluded. However the change in language of explanation to Section 12 created more problems then it solved. A number of High Courts including Bombay and Calcutta went out of their way to accept the out-landish argument that explanation was ambiguous. The words ''shall not be excluded'' in the explanation were susceptiable to different meaning than followed from in the text of Section 12. Then Full Bench of High Court Bombay and other Courts accepted the ingenious arguments built up by Lawyers that Parliament failed to fulfil its intention as stated in its object and reasons. After going through the decisions aforesaid all that can be said that they travel a long and difficult route of clutch at straws for resisting the change. However the Supreme Court in Udayan Chlnnbhal, AIR 1977 SC 2319 (Supra), upset decisions of Bombay High Court and others to hold that the words excluded in the explanation bear same meaning as given in text of Section 12. The authority of that case is limited to showing the meaning of the explanation. It says that time taken in prepartion of decree shall prior to filing of the application for its copy should not be treated as time requisite and shall not be excluded from the period of limitation. Therefore the Appellant was entitled to exclude only two days i.e. April 20th and April 21st because these two days were taken for the preparation of decree after filing of the application for certified copy on 20th April, 1988. There is no doubt that explanation says so. However these two days also form part of ''time requisite'' in obtaining the certified copy of judgment and decree. When the Appellant filed a proper application for certified copy on 20th April, the running of time of limitation of 90 days, virtually stopped and it remained in the moribund state till 3rd of June 1988 (both days inclusive). The question is time taken for prearation of decree on 20th and 21st could still be added as ''time requisite'' because of the explanation. It is clear that the additional time taken as preparation of decree on 20th and 21st April, 1968 was not ''time requisite'' i.e. time time properly required because running of time requisite u/s 12 (2) had already stopped on 20th April and it went upto 3rd June. In otherwards there is no scope for further adding two days as time requisite. The view of this Court is supported by the decision of Supreme Court in the case of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, at Page 836 reproduced:

In other words, the time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronunced, would be treated as a part of the time taken for obtaining the certified copy of the said decree

The Supreme Court in Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, had indicated in paragarh 22 at page that double counting should be avoided.

After such exclusion avoiding double counting his appeal filed in the Court of the Additional Civil Judge on 12.2.1957 was fully with " in time.

The elaborate discussion in this case regarding Section 12 and its explanation is for the purpose alleged misgivings that may arise in computing Limitation for excluding ''time requisite''. This is an attempt to meet the ingenious argument of the Counsel for the Appellant.

The Learned Counsel for the Appellant then argued that the appeal is barred by one day and an opportunity to file an application u/s 5 of the Limitation Act should be given. No attempt was made in this behalf in the Court below. This appeal has been pending since 1989. It will be too late in the delay to allow the Appellant to file an application u/s 5. He could not be given a opportunity at this stage of Second Appeal when he did not choose to seek one in lower Court. The lapse of time is likely to prejudice the case of the Respondents. Since justice has to be done to both the sides it would not proper remand the case. The result that this is no merit in this appeal. It fails and is dismissed. No order as to costs through.