P A OOMMEN Vs. MORAN MAR BASELIUS MARTHOMA

JUDGEMENT

(1.) A short but interesting question of law is involved in this appeal. The appellant and respondents Nos. 6 to 9 filed a suit in the District Court, Alleppy which was transferred to the Court of Subordinate Judge, Mavelikara where the suit was numbered as O.S. No. 105 of 1980. This suit was jointly tried along with O.S. No. 21 of 1979 filed by other plaintiffs. The Sub6rdinate Judge by a commonjudgment dated 27-8-1982 dismissed both the suits. The plaintiffs in 0. S. No. 21 of 1979 applied for certified copy of the 'udgmerit on 27-8-1982 itself while the plaintiffs in O.S. No. 105 of 1980 applied for certified copy of the judgment and decree on 28-8-1982. The certified copy of the 'udgment was delivered to the plaintiffs in O.S. No. 21 of 1979 on 20th August, 1983 and they filed First Appeal No. 504 of 1983 in the High Court on 31-10-1983. In the case of the applications filed by the plaintiffs in O.S. No. 105 of 1980 the office called upon them to produce copying sheets for the decree and printing charges for the judgment. Copying sheets were produced on 10-3-1983 but the printing charges for the 'udgment were not remitted and as such the application for copy of the judgment was dismissed on 17-3-1983. The copy of the decree being ready was notified for delivery on 22-3-1983 but the same was actually taken on 10-6-1983. The appellant and respondents Nos. 6 to 9 filed appeal in the High Court on 5-11-1983 and along with the memo of appeal a printed copy of the judgment with the seal of the Court was also filed. There was no indication in the printed copy of the udgment as to on whose application the same was issued, or the date of application or the date of production of printing charges or the date notified for receiving the same or when the same was delivered and other details necessary to be mentioned in a certified copy as required under Rules253 and 254 of the Civil Rules of Practice. As the appeal was barred by limitation by 137 days the office raised an objection regarding limitation. The Registry pointed out some more defects. The papers as such were returned for curing the defects. The Advocate appearing for the appellants again submitted the appeal with the following endorsement "The above appeal is filed along with an application to receive the same to file. The above application may be sent to the Bench for orders. Other defects are cured". The application referred to above was registered as C.M. No. 32544 of 1983. The application was also supported by an affidavit. In the affidavit it was stated that the original suit No. 105 of 1980 was tried and heard along with O.S. No. 21 of 1979. The learned Subordinate Judge passed a consolidated judgment in the two suits. The printed copies of the'udgment rendered in the case was applied for by the plaintiffs in the other connected suit O. S. No. 21 of 1979, and so the appellants (plaintiffs in O.S. No. 105 of 1980) were led to believe that it would not be necessary to obtain the printed copies of the judgment separately in O.S. No. 105 of 1980. It was further averred in the affidavit that the appellants bona fidely thought that the copies that would be made available to the plaintiffs in O.S. No. 21 of 1979 could be made use of by the petitioners for preferring their appeal. The appellants in substance placed reliance on Section 12(3) of the Limitation Act, 1963 and argued that the time taken for obtaining the certified copies of the 'udgment by the plaintiffs in O.S. No. 21 of 1979 should also be allowed to be excluded in the case of the appellants as well.

(2.) Learned single Judge of the High Court issued notice on the application C.M.P. No. 32544 of 1983 and after hearing the other side dismissed the same. Learned single Judge by judgment dated 9-2-1984 dismissed the C.M.P. No. 32544 of 1983 and consequently the appeal filed by the appelants was not accepted on the file of the High Court. The learned Judge took the view that the plaintiffs/appellants cannot take advantage of the certified copy of the judgment obtained by another person. The learned Judge also held that in calculating the period of limitation the Court can reckon time only on the basis of the certified copy of the judgment and decree produced in the case. Aggrieved against the aforesaid judgment of the High Court one of the plaintiffs in O.S. No. 105 of 1980 has come in appeal by grant of special leave.

(3.) In order to appreciate the controversy it would be necessary to reproduce tne relevant provisions of OrderXLI, Rule 1, C. P. C. as well as the provisions of S. 12 of the Limitation Act. Section 12(2) and (3) of the Limitation Act reads as under: