SHAHJAHAN BEGUM Vs. ZAHIRUL HASAN

JUDGEMENT

(1.) A learned Single Judge has referred this revision for decision by a larger Bench, because he felt that there was some conflict between the observations of the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 on the one hand and Full Bench decisions of Patna and Calcutta High Courts in State of Bihar v. Mohd. Ismail. AIR 1966 Pat 1 (FB), Dungar Mai v. Rukma Kumar, AIR 1970 Cal 443 (FB) on the other. A view similar to the one taken in the Calcutta and Patna cases was taken by a Single Judge of this Court in Har Bux Singh v. Gram Sabha, 1970 All LJ 720.

(2.) THE revision is directed against an order dismissing the appeal as barred by time. A suit for restitution of conjugal rights was decreed ex parte. The defendants made an application for the setting aside of the ex parte decree. This application was also dismissed on 24-2-1969. The office of the Trial Court took some time in preparing the formal order. The learned Munsif signed the formal order on 10th March, 1969. The defendants made an application for a copy of the formal order on 10th March, 1969. The copy was ready on 21st March, 1969. The appeal against the order dismiss ing the application for the setting aside o the ex parte order was filed on 19th April, 1969. The appeal was clearly barred by time, if the period taken by the office in preparing the formal order namely between 24-2-1969 and 10-3-1969 was not taken into consideration. The learned District Judge relied upon the observations of the Supreme Court in Jagat Dhish Bhargava's case, and held that the time taken in drawing up the formal order prior to the date of the appli cation for copy could not be excluded. He also held that the explanation for the delay was not sufficient. On these findings, the application for condoning the delay was dis missed, and the appeal was also dismissed as barred by limitation.

(3.) THE Explanation, however, provi des the method of computing the time re quisite for obtaining a copy. Once the time requisite for obtaining a copy has been com puted in accordance with the Explanation then that is the period of time, which has to be taken into consideration while com puting the period of limitation for the ap peal under sub-section (2) and the time so computed shall have to be excluded while computing the period of limitation for the appeal.