Sadashivrao Gangadhar vs Ramchandra Bawan Bhagwat

Chaturvedi, J.—The facts in this revision by the Plaintiff against a judgment and a decree of the Small Cause Court, Lashkar, dismissing his suit, so far as necessary for the determination of the question of limitation, are as follows. The judgment of the Small Cause Court was given on 29-4-1952. On 31-5-1952 the applicant applied for a copy of the judgment but gave wrong number of the case. The Small Cause Court closed for the summer vacation, on 1st June and opened on 1st July. On 1st July the Court below informed the applicant that as wrong number had been given no copy could be furnished and the fee paid would be refunded. The applicant did not, however, take any action and allowed the application to lapse. The High Court was also closed for summer vacation and opened on 12-7-1952. The applicant on that date filed an application in revision to this Court but did not furnish a copy of the judgment of the Court below with it. It appear he presented a fresh application to the Small Cause Court on 12-7-1952 for copies of the judgment and decree and obtained them on 14-7-1952 and filed them on the same date in this Court. Rule 12 of the Rules for Judicial Business in this High Court makes compulsory to file a copy of the judgment with the petition for revision and it is well settled that the presentation of a petition for revision without a copy of the judgment is no valid presentation of the revision. So it cannot be disputed that the revision in this case was filed on 14-7-52 when the copy of the judgment was filed. Now Rule 15 fixes a time limit for revision petitions in the following words:

All petitions for revision made to this Court u/s 115, CPC or Section 25, Madhya Bharat Small Cause Court Act (No. 46 of 1949)...will be treated as prima facie made without such diligence as ought ordinarily to be shown to entitle the Petitioner to relief in revision if the period from the date of order of which revision is sought to the date on which the petition is filed in Court excluding the time properly spent in obtaining any copy required be submitted, is more than 45 days.

Mr. Naokar, learned Counsel for the non-applicant contends that the application in revision is barred by time. The applicant had forty-five days within which to file the revision against the trial Court''s judgment. Two days were taken in obtaining copies of the judgment and decree of the trial Court and so the total period of limitation available to the Plaintiff applicant was forty-seven days and the period expired on 15th June 1952 when the High Court was closed and therefore the revision should have been filed on 12th July 1952 when the High Court re-opened after the annual vacation. On behalf of the Plaintiff applicant it was argued by Mr. Khandekar that as this Court was closed on 15th June 1952, the Plaintiff applicant was entitled to file the revision on the re-opening day i.e., 12-7-52, & on that day, whilst his right to file the revision still existed he applied for a copy of the judgment oil the Court below. It was, therefore, contended that the period taken to obtain this copy, namely two days, had to be excluded and that extended the time to 14th July 1952 when the revision was filed and so the revision was within limitation.

Mr. Khandekar placed reliance on - Pratap Singhji v. Gulab Singhji AIR 1953 Kutch 31 (A) which is based on a Full Bench ruling of the Bombay High Court in - Murlidhar v. Motilal AIR 1937 Born 162 (FB)(B), which laid down that Section 12, Indian Limitation Act confers a substantive right upon. an Appellant to have the period of time referred to therein excluded for the purpose of computing the time within which an appeal should be filed; and that in computing the time, it is legitimate, in a proper case, to exclude the period requisite for obtaining a copy of the decree, even in cases where no application for such a copy is made till after the expiration of the time limited for appeal.

In my opinion this decision of the Bombay High Court does not help the applicant. It is only an authority for the proposition that the time spent in taking the copy of the judgment of the Court below, though the application for a copy may have been filed after the expiration of the period of limitation, is (in a proper case) to be added to what is primarily the prescribed period. In this case even after adding two days the revision was time-barred as 47 days expired on 15th June and as soon as the High Court opened on 12th July the applicant ought to have filed the revision. The question is; whether the applicant can add two days to 12th July arid bring his revision within the period of limitation?

In - Kamaraju Pantalu v. Balla Saramma AIR 1942 Mad 604 (C), King J. on the basis of the Privy Council decision in-Maqbul Ahmad v. Onkar Pratap Narain Singh AIR 135 PC 85 (D) held that u/s 4, Limitation Act, the only privilege which is granted to the suitor or the Appellant is that he may file his suit or appeal on the day a Court re-opens. If he delays to make his application for a copy until that day, then he is applying ''for a copy when the period of limitation has already expired and the extension of time which is granted to the Appellant by the application of Section 4 of the Limitation Act cannot be combined with the extension which he seeks u/s 12.

The judgment in - AIR 1935 85 (Privy Council) '' is very important as it contains an analysis of Section 4, Limitation Act and shows that Section 4 by its very language cannot extend the period prescribed for the presentation of'' any suit, or appeal, or application. Its purpose is merely to allow any suitor or applicant to file his suit or application on a date after the expiry of the prescribed period if that period had expired while the Court was not sitting. It was, therefore, held that there was no possibility of adding to the period of extension granted by Section 4 a further period which was said to fall within Section 14 Lord Tomlin who delivered the judgment of the Board dealt with the method of computing time where period had to be excluded and on page 87 of - AIR 1935 85 (Privy Council) '' observed as follows:

It is to be noted that there is a marked distinction in form between Section 4 and Section 14. The language employed in Section 14 indicated that it has nothing to do with computing the prescribed period.

What the section provides is that, where the period expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court re-opened; so that there is nothing in the section which alters the length of the prescribed period; where as in Section 14 and other sections of a similar nature in the Act, the direction begins with the words ''in computing the period of limitation prescribed for any application'' certain period shall be excluded. It, therefore, seems to their Lordships that, where there is ground for excluding certain periods u/s 14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period.

From this decision it is clear that though Section 4 allows an Appellant to file an appeal on the opening day of the Court the section does not operate so as to extend the prescribed period of limitation. Although in the decision in the Privy Council case the Board, was concerned only with the question of combining the periods under Sections 4 and 14, the principles of the decision will apply equally to any such attempt at combination of the periods u/s 4 and Section 12, as the words of their Lordships "in Section 14 and other sections of a .similar nature in the Act" are sufficiently wide and significant.

In-The Bhawani Cloth Mills Ltd. v. Parmeshari Doss AIR 1947 Lah 168 (E), a Division Bench of the Punjab High Court (Harries C.J. and Abdur Rahman J.) had applied the principle of the Privy Council decision to a case which concerned Section 12. The facts of this case were that on 31-7-1940 the suit was dismissed by the trial Court. On the same day an application for a copy of the judgment was made and this was completed on 7-8-1940. An application for a copy of the decree-sheet was made on 30th September and this was completed on 11th October and the appeal before the Appellate Court was filed on the same day. The annual vacation of the Court began on the 1st September and continued until the 30th September 1940, the Court re-opened on 1st October ''1940. It was contended, on behalf of the Plaintiffs that thirty days for riling the appeal together with seven days allowed for obtaining copy of the judgment had expired in the vacation and as the Courts were closed the Plaintiffs were entitled to file the appeal on the re-opening of the Court by virtue of Section 4, Limitation Act and therefore when their right to appeal still existed they applied for a copy of the decree sheet on 30th September and the period of 12 days taken to obtain that copy extended the period of limitation to 11th October and so the appeal filed on that date was within limitation. This contention was repelled by the Punjab High Court, which, lowing the Privy Council ruling in - ''Maqbul Ahmed''s case (D)'', held that Section 4 did not operate so as to extend the prescribed period of limitation and so the appeal was time-barred.

In computing the period fixed by Rule 15 we have to take help from the principle enunciated in these cases and applying the same principles to the facts of this case I am clear in my mind that the petition of revision should be treated as made without such diligence as ought ordinarily to be shown to entitle the Petitioner to relief in revision as it was not presented on 12th July 1952 when the High Court re-opened.

Failing in his attempt to bring his revision within the period prescribed under Rule 15, Mr. Khandekar, learned Counsel for the applicant then urged that the applicant should be excused for giving wrong number to the Court as it was a bona fide error and that his application for a copy presented on 12-7-1952 should be taken to be a continuation of the previous application which was presented on 31-5-1952. He placed reliance on - Mt. Hira Bai v. Indrabahadur Singh AIR 1938 Nag 287 (F) which does not help him in the least. In that case it was discovered that the Court had taken three weeks discovering that the wrong number had been given and so indulgence was shown by the High Court as the delay was not due to any default on the part of the Appellant. In the present case the facts are different. The applicant had applied for a copy of the judgment of the last working day of the Court before it closed f the annual vacation. On the re-opening day (i.e. on 1st July) the Court informed him that he had given wrong number of the case. The period from 1st July to 11th July was within the applicant''s control, and was sufficiently great to prevent the Appellant saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude. But nothing was done to ''give the correct number to the Court and the applicant allowed the application for a copy of the judgment to lapse.

In the case of-Pramath Nath v. William Arthur Lee AIR 1922 PC 352 (G), their Lordships of the Privy Council had observed that "no period can be regarded as requisite under the Act which need not have elapsed if the Appellant had taken reasonable and proper steps to obtain a copy of the decree or order and in - Jijibhov N. Surty v. T.S. Chittaya Firm AIR 1928 PC 103 (H), Lord Phillimon stated:

The word ''requisite'' is a strong word; it may be regarded as meaning something more that the word ''required''. It means ''properly required''; and throws upon the pleader or Counsel for the Appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.

In Rule 15 of the Rules of Judicial Business of this Court the words used are "excluding the time properly spent in obtaining a copy". In the present case the time actually taken in obtaining the copy of the judgment was definited due to the dilatoriness and laches on the party of the applicant and time was wanted because the applicant''s own negligence. The time properly spent in obtaining a copy was only two days. Then if the previous application for a copy of the judgment had been struck off for non-compliance the applicant never put in a special application to the Court for treating the previous application as subsisting and for reviving it. On the other hand, he himself filed another fresh application on 12-7-1952 for a copy of the judgment. Under the circumstances it is impossible to treat the fresh application as a continuation of the previous application. In fact the applicant was guilty of laches and with due care and attention he could have avoided the delay in filing this revision and so he cannot invoke the aid of Section 5.

Last of all, Mr. Khandekar urged that as it was a case of hardship a discretion may be exercised in favour of the applicant. In my opinion an applicant is to suffer some hardship if it is caused by his own negligence. In-Maqbul Ahmed''s case (D)'' it was Pointed out by their Lordships that there are provisions in the Act for condoning delay and unless a Court acts under such provisions it has no power even in are of hardship to exercise its discretion and extend time. In this view of the matter I have to treat this petition for revision as made without diligence within the meaning of Rule 15 of the Rules for Judicial Business in this Court and consequently the Petitioner is not entitled to relief in revision. I, therefore, dismiss it with costs.