State of Uttar Pradesh v. Maharaj Narain and Others

Hegde, J. In this appeal by certificate, the only question that arises for decision is as to the true scope of the expression "time requisite for obtaining a copy of the decree, sentence or order appealed from" found in sub-s. 2 cf s. 12 of the Indian Limitation Act 1908 which will be hereinafter referred to as the Act. The said question arose for decision under the following circumstan-ces: The respondents were tried for various offences before the learned assistant sessions judge, Farrukhabad. The said learned judge acquitted them. Against the order of acquittal the State went up in appeal to the High Court of Allahabad. The said appeal was dismissed as being barred by limitation. The correct-ness of that decision is in issue in this appeal.

Item 157 of the first schedule to the Act prescribes that the period of limitation for an appeal under the Code of Criminal Procedure 1898, from an order of acuittal is three months from the date of the order appealed from. But sub-s. 2 of s. 12 pro-vides that iu computing the period of limitation prescribed for ari appeal th" day on which the judgment complained of was pro-nounced and the time requisite for obtaining a copy of the order appealed from shall be excluded.

The memorandum of appeal was filed into court on March 29, 1963. The order appealed from had been delivered on Novem-ber 10, 1962. According to the information contained in the copy of the order produced along with the said memorandum the appeal was within time. It showt:d that that copy was applied for on November 15, 1962 and the same was ready on January 3, 1963.

It was contended on behalf of the respondents that the appeal was out of time in view of the fact that the appellant had applied for and obtained two other copies of the order appealed from and if time is calculated on the basis of those copies the appeal was beyond time. In addition to the copy referred to earlier, the appellant had applied for another copy of the order appt'aled from on Drcember 3, 1962 and that copy was ready for delivery on Dc-:c::.· <:r 20, 1962. The appellant also applied for yet another copy of the same order on December 21, 1962 and that copy was made ready on the same day. There is no dispute that if the period of limitation is computed on the basis of those copies 1:1c appeal was barred by limitation. But the point for considera-lion is whether the obtaining of those copies has any relevance in the matter of computing the period of limitation for the <:ppeal.

The High Court of Allahab·1d accepted the contentio..i of the respondents that in determining the time requisite for obtai,1-ing a copy of the order appealed fro1.1, it had to take into con-sideration the copies made available to the appellant on the 20th and 2 lst December, 1962. 1t opined that the expression 'requi-site' found in s. 12(2) means "properly required", and hence the limitation has 10 be computed on the basis of the copy made available to the appellant in Decembtr, 1962.

It was not disputed on behalf o( 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 a1 :>ellant could have, if !I chose to take the risk, waited till the ninety days period allowed to it by the 'tatutc was almost ex-hausted. Even then the time required for obaining a copy of the order would have been deducted in calculating the period of liini-tation for filing the appeal. Hence Ire expression 'timt requisite' cannot be understood as the time absolutely neccs~ary for obtain-ing the copy of the order. What is ,teductible under 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-s. 2 of s. 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. That section permits the appel-lant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the appli-cation 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 s. 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 pro-nounced 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 ti.ne requ;red for obtaining a copy of the order appealer! from, it would be unworkable. In that event every time an appeal is filed, the court not only will hav~ to see whether thP, appeal is in time on the basis of the information avail- ~ble from the copy of the order filed along with the memorandum of appeal but it must go further and jiold 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 wo•.1ld lead to a great deal of confusion and enquiries into the alleged !aches or diktoriness in respect not of copies pro-duced with the memoranC:11m of appeal but about other copies which he might have got and u5ed for other purposes with which the court has nothing to do.

The High Court in arriving at the decision that the appeal is barred by time relied on the decision of the Lahore High Court in Mathe/a and Others v. Sher Mohammad('). It also sought sup-port from the decisions of the Judicial Committee in Pramatha Nath Roy v. Lee(') and J. N. Surty v. T. S. Chettyar('). The Lahore decision undoubtedly supports the view taken by the High Court. It lays down that the words "time requisite" mean simply time required by the appellant to obtain a copy of the decree assuming that he acted with the reasonable promptitude and dili· gence. It further lays dpwn that the time requisite for obtaining it copy is the shortest time during which the copy would have been obtained by the appe!lant, and it has nothing to do with the amount of time spent by him in obtaining· the· copy which he chooses to file with the memorandum of appeal. With respect to the learned judges who decided that case we are unable to spell out from the language of s. 12(2) the requirement that the appel-lant should act with reasonable promptitude and diligence and the further condition that the time requisite for obtaining a copy should be the shortest time during which a copy could have been obtain-ed by the appe!lant. We are of the opinion that the said decision does not lay down the law correctly.

Now we shall proceed to consider the decisions of the Judicial Committee relied on by the High Court. IP ?ramatha Nath Roy v. Lee(') the appellant was found to be guilty of !aches. The Judicial Commit~ee held that he was not entitled to deduct the time lost due to his !aches. It is in that context the Board observed that the time which need not have elapsed if the appel-lant had taken reasonable and proper steps to obtain a copy of the decree or order could not be regarded as 'requisite' within sub-s. 2 of s. 12. That decision does not bear on the question under consideration.

In J. N. Surty v. T. S. Chettyar('), the question that fell for decision by the Judicial Committee was whether in reckoning the time for presenting an appeal, the time required for obtaining

(!)A.LR. !935 Lah. 682. (2) 49 I.A. 3 7.

(3) 55 I.A. 161.

LJSup.Cl/68-10 a copy of the decree or judgment must be excluded even though by the rules of the court it was not necessary to produce with the memorar.dum of appeal the copy of the decree or judgment. Their Lordships answered that question in the affirmative. While deciding that question, their Lordships considered some of the observations made by the High Court relating to the dilatoriness of some Indian practitioners. In that context they observed :

"There is force no doubt in the observation made in the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the ·dilatoriness of some Indian practitioner; and their Lordships would he unwilling to discourage any such effort. All, however, that can be done, as the law stands, is for the High Courts to be strict m applying the provision of exclusion.

The word 'requisite' is a strong word; it may be :»~garded as meaning something nfore than the word 'required'. It means 'properly required' and it throws upon the pleader or counsel for the appellant the ,.. ::ssity of showing that no part of the delay beyond the prescribed period is due to his fault."

In other words, what their Lordships said was that any delay due to the default of the pleader of the appellant cannot be deducted. There can be no question of any default if the steps taken by the appellant are in accordance with law. Hence, the above quoted observations of the Judicial Committee can have no application to the po:nt under consideraion.

Preponderance of judicial opinion is in favour of the con-clusion reached by us earlier. The leading case on the subject is the decision of the fu]] bench of the Madras High Court in Panjam-v. Tri ma/a Reddy('), wherein the court laid down that in s. 12 the words 'tim.~ requisite for obtaining a copy of the decree' mean the time beyond the party's control occupied in obtaining <he copy which is filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for the copy had been filed on some other date. Th's decision wa! followed by the Travancore-Cochin High Court in Kunju Kesavan v. M. M. Philip('), by the Allahabad High Court in B. Gorind Raj Sewak Singh and Another v. Behuti Narain Singh(') and by the Madhya ·Pradesh High Court in K. V. Singh v. M. R. Kachhi(').

From the above discussion it follows that the decis-'on under appeal does not lay down the la"' correctly. But yet we arc of ll

Ctl 1.L.R. l7 Ma<l. 561. (2) A.J.R. 195) T.C. 552. (Jl A .IR J9;J All. 486. (4) A.l.R. t960 M.P. 14J. the opinion that this is not a fit case to interfere with the order of the High Court dismissing the appeal. The respondents were acquitted by the assistant sessions judge, Farrukhabad on Novem-ber 10, 1962. We were informed by learned counsel for the State that this appeal was brou~ht to this court mainly with a view to settle an important question of law, and under instructions from the State government he told us that he does not press the appeal on merits. Accordingly this appeal is dismissed.

CB'IMINAL APPELLATE JURISDICTION: C: !minal Appeal No. 122 of 1965.

Appeal from the judgment and order dated December l, 1964 of the Allahabad High Court in Government Appeal No. 785 of 1963.

0. P. Rana, for the appellant.

!. P. Goyal and Sobhag Mal Jain, for the respondents.