Lala Balmukund (Dead) Through L.Rs. v. Lajwanti and Ors.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 1968. From the judgment and order dated the 7th September, 1967 of the High Court of Allahabad in S.A. Appeal ~o: 18 of 1958. R. K. Garg, S. C. Agarwala and V. I. Frahcis, for the appellants. A. N. Goyal, for the respondents, The Judgment of the Court was deliveml by . SARKARIA, J.--,-This appeal by spec!al leave directed against a judg- ~ent of t~e Allahabad High Court raises a question in regard to the mterpreta!1on of s. 12(2) of the Limitation. Act 1908. It arises out of these c1rcwnstances : 46 [1975] SUPP. s.c.R. Roshan Lal and two others filed· a suit in the Court of Mtmsif Havali, Lucknow against Balmukund and another for dissolution of partnership, rendition of accounts and recovery. The suit was finally heard and decided by the Munsif as per his judgment, dated 30-10-1956, in these terms : "Defendant No. 1 Lala Balmukund shall pay a total sum of Rs. 15,927 /2/- to the plaintiffs in which they have equal shares.

Plaintiffs shall also get their costs from defendant No. 1. Let a final decree be prepared accordingly provided necessary court-fee is paid by the plaintiffs within one month." The plaintiffs did not pay the court-fee within the time originally fixed -in the judgment. They asked for extension of time which was granted without notice to the other side. The plaintiffs then deposited the necessary court-fee within thiS extended time, on· 18-1-1957. About 12 days thereafter, on 30-1-1957, the final decree was drawn up and signed. · The appellant (Defen:dant No. 1) made an application for obtaining a eopy of the Judgment oh 14-11-1956. The copy was prepared and delivered to the appellant on 16-11-1956. On 26-11-1956 i.e. about two months before the decree was actually drawn up and signed, the appellant made an application for a copy of the decree. The copy was prepared and delivered to Counsel for the appellant on 1-2-1957.

Information about the supply of this copy was received by the appellant at Delhi on 3-2-1957. Against the judgment and decree of the Munsif, the defendant filed an appeal on 12-2-1957 before the Additional Civil Judge, Lucknow. Along with the Memorandum of Appeal, he submitted an application under s. 5 of the Limitation Act, for con'donation of delay in respect of the period from 6-2-1957 to 12-2-1957. By his judgment dated 14-2-1957, the Judge dismissed the appeal as time' barred. _ _ 'Aggrieved, the defendant preferred a second appeal to the High Court. Before the learned single Judge of the High Court the appellant iirged: (1) That, the first appellate Court did not properly exercise its discretion when it held that th.ere was no sufficient cause for condoning the delay; ( 2) (a) That as the decree passed was conditional on payment of court-fee, the date when the decree was actually signed should be the date -of the decree ; (b)

That as the decree was prepared late, it should be held that the "time requisite_ for obtaining a copy of .the decree" was not the only time while the application for a copy of the dei:ree remained pending but also thee time prior to it. ,c The learned Judge rejected both these contentions. c Following the rule in Keshar Sugar Works Bombay v. R: C. Sharma.and Ors., (1} (I) AIR 1951 All, 122 F.B. - BA\,MUKUNP v. LAJWANTI (Sar/caria, J.) 47 he held that the period between the date of the judgment (30-10-1956) and the date (26-11-1956) of making the application for copy could not be excluded as ."time requisite for obtaining a copy or ili.e decree" under s.12(2) of the Limitation Act. In the result be dismissed the appeal as barred by limitation. Hence this appeal. · The contentif>nS which were canvassed on behalf of the appellant in the High Court, have been reagitated before us by Shri R. K Garg. Firstly, it is urged that the Additional Civil Judge bad exercised h)s. discretion under s.

5 of the Limitation Act in a grossly unjust and unreasonable manner in not condoning the delay. Itis submitted that apart from the sworn statement of the appellant that he was ill, there . were patent circumstances in this case which by themselves constituted a sufficient cause for condoning the delay of six days in filing the appeal. It is stressed that the law on the point was any' thing but clear, and the delay in applying for a copy of the decree was due to the delay in preparation of the decree, which in turn, was attributable mainly to the default of the plaintiflNespondents in not furtiisbing the court-fee within the time specified in the judgment. It is to be noted that in the courts below, the appellant did not take up the plea that the delay was due to wrong advice of the Counsel or that the appellant was labouring urider any mistake or misapprehension of law.

The case then set up by him was that being a· patient of heart disease. he remained confined, under medical advice, to bed. He was fit enough to travel on the 10th February, but for want of funds he could not reach Lucknow from Delhi on the 11th February. He produced a post<dated medical certificate, buf did not ,examine the Doctor concerned. The appellant had an adult son who used to look after the case. In these circumstances, it cQµJd not be said that the first appellate court exerciSed its dis- Ji cretionary power perversely or illegally so as to warrant interference by. the High Court in second appeal. We· therefore, negative the first contention. Next' it is contended that the entire period between the date of the judgment and the signing of the decree, in the circumstances of this case; was the. "time requisite" for obtaining a copy of the decree and. should have been excluded, a& such under s.12(2) of the Limitation Act 1908.

According to the learned Counsel, the Allaha· bad High. Court has wrongly interpreted .the provisions of s. 12(2) ; while the contrary view taken by the other High Courts is correct . · As against thi.I, Mr. Goyal, the learned Counsel for the Respondent takes his stand on the reasoning and ratio of the Full Beqch decision orthe Allahabad High Court in Ke;;har Sugar Mills case (supra).. :, .. , 'f!iqnaterial pa("t of s.12(2) runs thus: · •. '"In computing the period o( limitation for an appeal ...... . ... .. the day on which the judgment complained of was.pronounced .. J 48 (1975] SUPP. s,c.R. and the time requisite for obtaining a copy of the decree ............ or order appealed from ............ shall be excluded." (emphasis supplied) There is a conflict of opm1on as to the meaning and scope of the phrase "time requisite for obtaining a copy of the decree or order".

Thi~. conflict has arisen because the phrase in question is susceptible of a restricted as well as a liberal interpretation. On a narrow-guage view, the "time requisite" spoken of in this phrase is to be strictly confined to the pericid commencing with the date of making the application for copy and ending with the date of the grant of the copy, ilTespective of whether the decree or order, copy of which is sought, is or is not in existence. This view has found favour with the Allahabad High Court. It was first propounded by Mahmood J. in Bechi v. Ahsan Ullah Kha!1( 1 ), thus: "The words "req.uisite" and "obtaining" as they OCC-UJ~ in the context seem to me to assume that some definite step ancilliary to the "obtaining", that is, acquisition, is not only intended to be taken but has already been taken .........

The time requisite for "obtaining a copy of the decree" cannot refer to any period antecedent to the appellant's asking for a copy by the .usual mode of applying therefor, or to any period subsequent to its being ready for delivery''. The ratib of Becki's case (supra) has been reaffirmed by Malik C.J., speaking for the majority in Keshar Sugar Works Bombay v. R. C. Sharma (supra), with this observation: " ...... the words "requisite" and "obtaining" mean that some definite step should be taken by the applicant himself toward the attainment of the copy and it cannot be said that the time was required for obtaining a copy· if the appellant has not applied for a copy thereof. ..... the appellant is not req uiml to wait till the decree is ready before he can file his application for a copy." ,J.. The basis of this view is that the process of 'obtaining' a copy begins only when an application for it is made.

Thus it places greater stress on the word 'obtaining' than on the expression 'time requisite'. It purports to ignore the delay in drawing up of the decree-- the existence of which is a condition precede\!! to the obtainment of its copy~ven where such delay is .the result of circumstances beyond the control of the appellant. The contrary view proceeds on a liberal interpretation of the language of s. 12(2). It places due emphasis on the expression "time requisite" and gives it full effect, which, according to it, is not restricted to the time actually taken, but is wide enough to encompass all the time properly required. Consequently, the time properly taken for the preparation of the decree and the time which properly elapses in (1) ILR 12 All. 461 F.B. BALMUKUND v. LAJWANTI (Sarkaria, J.) 49. the circumst;inees of a particular. case between the pronouncement of the judgment and the signing of the decree, should also be excluded as the time necessary for obtaining its copy.

The action on the part of the appellant in applying for a copy of the decree is not always decisive factor in considering whether any time shoukl be so excluded. In a case where various steps might have to be taken by the parties before a decree could be ready and signed, the court would have to consider R whether any of the time taken for preparation of the decree could be attributed to the fault or negligence of the appellant.. If any of the time could be so attributed, then that time could not be excluded under s. 12(12). This, in substance, is the view adopted by the High Courts of Bombay('), Calcutta('), Patna(•), Nagpur(') and Assam(•). The leading case wherein this view was first enunciated is Bani c Madhub Mitter v. Matangini (supra). In Pramatha Nath v. W. A. Lee(6), the Privy Council referred to Bani Madhub's case in terms which could l)e indicative of an implied approval of its ratio 'decidendi.

The Judicial Committee distinguished Bani Madhub's case on the ground that the appellant therein was not at fault at all and all that Bani Madhub's case had decided was that the two periods of time, D "one of which was prompt and effective and the other of which the appellant might not have been able to control, ought to be deducted from the length of time between the decree and the lodging of the, memorandum''. In their Lordships' opinion, the real test was whether the party was responsible for the delay in preparation of the d.ecree or order, or the delay was unavoidable, and due to circumstances beyond the control of the appellant. The conduct of the appellant was cbnsidered to be a material factor in determining the time requisite for olr taining .a copy of the order. In computing such time requisite, the benefit of any period which elapsed due to circumstances beyond the appellant's control h~d to be given to him.

But any time which lapsed on account of his default should not be so excluded r In Jiji Bhoy N. Surly v. T. S. Chettyar Firm(7), the Judicial Committee held that the word 'requisite' in s. 12(2) means 'properly required' and implies that no part of the delay beyond the prescribed period was due to the appellant's default. We do not wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of s. 12 ( 2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be (1) Jaya Shankar Malushankar v .. Mayabhai AIR 1952 Born. : 122 F.B. (2) Bani Madhub Mitter v. Matangi Das.5i, !LR 13 Cal. 104 : SCcretary of tt State v .. Parijat Debi, AIR 1932 Cal. 331. (3) Gabriel Christian v. Chandra MohanMissir, ILR 15 Pat 284. :· ( 4} Bhagwant v. Liquidator, Cooperative Society Sarphapur, ILR 1955 Nag; 791 F. B. (5)

Arun Chandra Swami v. Mohd. Mujib Chotidhry AlR.1955 Asilam 129 S.B. (6] AIR 1922 P.C. 452. (7 55 I.A. 16: AIR 1928 P.C. 103. (19'/5] SUPP. S.C.R .. mote consistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, aud where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the legislature. Considered in the light of this cardinal canon, we are not persuaded to accept the Allahabad view.

Although there is nothing in the Limitation Act or the Code of Civil Procedure requiring that the application for a copy of the decree or order should be made within ·the ordinary period of limitation, this view reads such peremptory requirement into the statute and makes it a terminus-aquo of the time necessary for· obtaining a copy of the decree even if such a decree did not or could not come into existence within the prescribed period, due to circumstances beyond the control of the appellant. It puts undue emphasis on the starting point of . the process of obtainment of a copy by synchronising it With the date of applying, whereas the emphasis should have been on the final act of obtaining the copy. It i.lllllecessarily whittles down the amplitude of the word "for"

(immediately preceding the expression "obtaining") as if it was "in"; whereas in the context it appears to carry a Wider connotation, equivalent to "in respect of", indicating that the scope of the expression "time requisite" and "obtaining" (in association with which it occurs) is not necessarily confined to the activity of the appellant, but is relatable to the circumstances of the case, beyond the control of the appellant. The Allahabad view overlooks the stark truth that if a party applies ~or a copy of a decree not yet in existence, he cannot be said to be 'obtaining' the copy during the period the original was yet to be prepared and which for some reason, 1t not of the party's making, could not be brought into existence. Tei hold that in such a case, also, he was 'obtaining' a copy of the non-existent original, would be conjuring up a new fiction over and above that envisaged by 0. 20, R. 7 Of the Code of Civil Procedure.

In sJlort, this construction constricts the scope of the phrase "the time requisite for obtaining a copy of the decree or order", so as to have an unduly penal effect. We would therefore, eschew this construction and approve the other adopted by most of the High Courts. In our opinion, the expression "time requisite" in the phrase in question, means all the time counted from the date of the pronouncement of the judgment (the same bemg under Order 20, Rule 7, C.P .C., the date of the decree) which would be properly required for .getting a copy. of the decr~e, including the time which must exnec¢ssitas elapse in the circumstances of the particular case, before a decree is· drawn up and signed. If any period of the delay m preparing the decree was attributable to th~ default or neglf gence 0( the appellant, the latter shall not be entitled to the exclus101l of wch period nnder. s. 12(2) of the Limitation Act, 1908.

Applying the Jaw as enunciated ~hove to the fa~ts <;>f the ~\15e in hand, it will be seen that the drawmg up or. coming: mto eiustence J BALMUKUND v. LAJ,WANTI (Sarkaria, J.) 51 of the original decree, of which the copy was sought, was conditional upon the payment of court-fee by the plaintiffs within thirty days of the pronouncement of the judgment (30-10-1956). The plaintiffs did not comply with that direction within the time originally specified in the judgment. They deposited the court-fee only on 18-1-1957 within the extended time which was granted withont notice to the defendant-appellant. Even after that, the decree was not signed till B 30-1-1957. Under the jndgment or any rules of the court, the appellant was not required to take any step towards the preparation of the decree'. No period of the delay in drawing up the decree was attributable to the fault of the appellant.

The delay was mainly due to the delayed deposit of the court-fee by the plaintiffs and partly due to the laxity of the office of the court. Although the appellant prematurely filed an application for getting a copy of the non-existent decree on 26-11-1956, he could legitimately defer that action till the condition precedent on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would not have been extravagant for the appellant to wait till the court-fee was deposited by the plaintiffs, for, in the event of non-deposit of the court-fee, there was a reasonable possibility of their suit being dismissed, or at D any rate, of the decree against which the defendant felt aggrieved and eventually appealed, not being passed.

Under the circumstances, the appellant was entitled to the exclusion of the ·entire time between the date of the pronouncement of the judgment and the date of signing of the decree, as the 'time requisite for obtaining a copy of the decree'. After such exclusion-avoiding double counting-his appeal filed in the court of the Additional Civil Judge on 12-2-1957, was fully within time. Before parting with this judgment we· may mention that Mr. Goyal, learned Counsel for the respondents had also pointed out that in view of the Explanation appended to the recenacted s. 12 of the Limitation Act, 1963, the Allahabad view is the correct one and the F contrary opinion held by the other High Courts is no longer good law. In this connection he has cited Sitaram Dada Sawant v. Ramu Dada Sawant.( 1 ) We would dispose of t)lis contention on the short ground that in the present case we are concerned with the interpretation of s. 12 as it st<;>OO in the Limita~ion Act of 1908.

We are not called upon ·G to consider th6 construction ot the new s. 12 ot the Limitation Act, 1963. No part of the new ~· .12 has been given retrospective effect. We therefore, express no op1mon as to whether the law enunciated above will hold good in cases governed by the new s. 12 of the 1963 Act. For the foregoing reasons, we set .aside the judgment of the High Court and allow this appeal with costs throughout. The case shall now go back. to the Additi~na] Civil Judge, Lucknow for disposal of the appeal m accordance with law. V.M.K. Appeal allowed. (1) A.I.R. 1968 Born. 204.