1998 (3) TMI 714 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the appellant is entitled to exclude the time granted under Rule 242 of the Civil Rules of Practice, Kerala, for producing the stamp paper as 'time requisite' for obtaining a copy of the decree appealed from, for the purpose of Section 12(2) of the Limitation Act, 1963.

Issue-wise Detailed Analysis:

1. Entitlement to Exclude Time Under Rule 242:
The primary issue was whether the appellant could exclude the time granted under Rule 242 of the Civil Rules of Practice, Kerala, for producing the stamp paper as 'time requisite' for obtaining a copy of the decree for the purpose of Section 12(2) of the Limitation Act, 1963. The court examined previous decisions, including Antony v. Eapen (1961 KLT 321) and Sivalingam v. Dakshinamoorthy (1992 (2) KLT 929), which held that the time granted under similar rules was not excludable.

2. Facts of the Case:
The judgment under appeal was pronounced on 26.8.1995. The application for a certified copy was filed on 29.8.1995, the stamp paper was called on 25.10.1995, and it was produced on 28.10.1995. The certified copy was ready on 6.11.1995, notified on 9.11.1995, and the appellant took delivery on the same day. The appeal was filed on 5.2.1996. If the appellant could exclude the three days granted under Rule 242, the appeal would be within time.

3. Legal Provisions:
Section 12(2) of the Limitation Act, 1963, states: "In computing the period of limitation for an appeal or an 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." Rule 242 of the Civil Rules of Practice, Kerala, specifies that the list showing the applications requiring stamp papers shall remain suspended for three clear working days.

4. Previous Judgments:
In V. Sivalingam v. Dakshinamurthy & Ors., the court held that the period prescribed by Rule 242 was only to save the application for a copy from dismissal for three days and could not be used to determine the 'time requisite' within Section 12(2) of the Limitation Act. The court relied on the Privy Council's observation in Pramath Nath Roy v. Lee (AIR 1922 PC 352) that no period can be regarded as requisite if it need not have elapsed had the appellant taken reasonable steps to obtain a copy.

5. Analysis of 1961 KLT 321 Decision:
The Division Bench in 1961 KLT 321 rejected the contention that the time taken to supply printing charges after notification should be excluded in computing the period of limitation. They argued that the time taken was due to the applicant's neglect or indifference. This decision was based on the Privy Council's observations in Pramatha Nath Roy v. Lee and J.N. Surty v. T.S. Chettyar (AIR 1928 PC 103), emphasizing that 'requisite' means 'properly required' and does not include time due to the applicant's default.

6. Supreme Court's View:
The Supreme Court in State of U.P. v. Maharaja Narain & Ors. (AIR 1968 SC 960) held that the expression "time requisite" cannot be understood as the time absolutely necessary for obtaining the copy. The time required for obtaining a copy of the order must be excluded, and no obligation is placed on the appellant to be prompt in applying for a copy. This view was reiterated in Lala Bal Mukand (Dead) by L.Rs. v. Lajwanti & Ors. (AIR 1975 SC 1089), where the Supreme Court stated that the time requisite includes all time properly required for obtaining the copy, excluding any period of delay due to the appellant's default.

7. Application to the Present Case:
The court concluded that since the appellant complied with Rule 242 by producing the stamp paper within the time granted, they were not at fault. Therefore, the appellant was entitled to exclude the three days granted under Rule 242 as 'time requisite' under Section 12(2) of the Limitation Act.

8. Overruling Previous Decisions:
The court overruled the decisions in 1961 KLT 321 and 1992 (2) KLT 929, holding that the appellant is entitled to exclude the time granted under Rule 242 for producing the stamp paper as 'time requisite' for obtaining a copy of the decree appealed from.

Conclusion:
The court directed the office to number the appeal as one filed within the prescribed period and send it for admission before the appropriate Bench.