ORIENTAL FIRE AND GENERAL INSURANCECO Vs. MOHNI DEVI

JUDGEMENT

(1.) THIS appeal under Section 110 D of the Motor Vehi cles Act by Oriental Fire and General Insurance Co. Ltd. is directed against an award of the Motor Accident Claims Tribunal. Allahabad, dated 21-3-1978. It was presented before this Court on 6-11-1978. Certified copies of the award and the decree accompanying the memorandum of appeal show that the application for obtaining those copies were made on 28-4-19?8 and the copies were ready on 21-8-1978. Thus 116 days only were taken in obtaining those certified copies. Before presenting the appeal, learned counsel appear ing for the applicant had obtained a report from the Stamp Reporter on 6-10-1978 which mentioned that the appeal would be within limitation upto 25-1-1979. When the appeal was presented before the Court on 6-11-1978, it felt that even if the time required for obtaining the certified copies of the award and the decree was excluded, the appeal filed on 6-11-1978 would still be barred by time and granted two weeks time to the appellant to study this point and to do the needful. The appellant then filed the present application on 8-12-1978 and stated that after the memorandum of appeal was prepared it was presented before the Stamp Reporter, who on 6. 10. 1978 reported that the appeal would be within limitation upto 25-1-1979. In doing so he com puted the period of limitation from 3-7-1978, the date on which the decree appeared to have been prepared by the office of the Claims Tribunal. Appellant's counsel did not doubt the correctness of the report made by the Stamp Reporter. Unfortunately the learned counsel had to go to Shahjahan-pur in connection with the death of his brother on 16-10-1978. Accordingly he filed the appeal after returning to Allahabad on 6-11-1978. The appellant, therefore, prayed that the delay in filing the appeal should be condoned and the same may be treated as having been filed within time. On receiving notice of the application the respondents appeared before us and opposed the prayer for condoning the delay in presenting the appeal. They brought it to our notice that the certified copies of the award and the decree, filed along with the memorandum of appeal, had been issued free of cost and were marked 'for Government use' only. Relying upon a Full Bench decision of this Court in the case of State v. Hari Shanker, 1971 A.L.J. 1205 they urged that the appellant was not entitled to claim exclusion of time required for obtaining copies of judgment and decree filed along with the memoran dum of appeal. Accordingly, even if to be held that the appellant was pre vented by sufficient cause from presenting the appeal in between 6-10-1978 and 6-11-1978, the appeal had long before 6- 10-1978 become barred by time. There being no explanation about what prevented the appellant from filing the appeal before it became barred by time, no question of condoning the delay and treating the appeal as having been filed within the period of limita tion arises. Learned counsel for the appellant cited before us decisions in the cases of Ram Krishan Shastri v. Kashibai 1907) I.L.R. 29 Alld. 265. Mt. Majidan v. Daltnir Khan and another A.I.R. 1951 Pun. 388. Pusarla Peda Brahamaj and others v. Krishnama Chariar and another. A.I.R. 1920 Mad. 159. State of Madras represented by Spl. Tahsildar Regional Engi neering College Scheme v. Muthurethinam and others, A.I.R. 1970 Mad. 353 and urged that while computing the period of limitation for filing an appeal, the appellant is under Section 12 of the Limitation Act, entitled to exclusion of time re quired in obtaining the certified copies of the judgment and decree filed along with the memorandum of appeal and that for this purpose it would be absolutely irrelevant to look to the person who obtained and the purpose of his obtaining the certified copies. We are, however, of opinion that in view of the decision of the Full Bench of this Court in the case of State v. Hari Shanker (supra), which decision is binding on us, it is unnecessary for us to comment on the cases cited by the learned counsel for the appellant. In the case of State v. Hari Shanker (supra), a Full Bench of this Court was required to consider as to whether in a case where while filing an appeal against acquittal, the State filed along with the memorandum of appeal a certified copy of the judgment obtained by the accused and sent to the depart ment for a purpose other than for filing an appeal, it was, in computing the period of limitation, entitled to exclude the time required by the accused in obtaining that copy. After considering the provisions of Section 12 (2) of the Limitation Act the Bench observed thus:- "In our judgment on a true and correct interpretation of Section 12 (2) of the Act the time requisite for obtaining a copy of the judgment, decree or order appealed against is the time beyond the appellant's control occu pied by the Copying Department after an application for certified copies had been duly made by or for the benefit of the appellant and not the time spent in obtaining it by a party who cannot even be said to have impliedly acting on his behalf." In this case it is not disputed that the copies which have been filed along with the memorandum of appeal had not been applied for by the appellants. Theses copies had been obtained by the appellants', co-defendant, Indian Telephone Industry Ltd., a Government of India Undertaking, free of cost and for Government use only. There is nothing on the record to show that the Indian Telephone Industry Ltd., applied for those copies for and on behalf of the appellant. Learned Counsel for the appellant contended that as in this case the Indian Telephone Industry and the appellant were co-defendants in the pro ceedings before the claims tribunal and their interests were common, it should be taken that the Telephone Industry made the application for certified copies so as to enable the appellant to file the appeal and that the application was made for the appellant's benefit. We are unable to accept this submission. Rule 251 of the General Civil Court Rules which enabled the Telephone Industry Ltd. to obtain the certified copies free of cost runs thus: - "Notwithstanding anything contained in these rules, a judge may, upon application by or on behalf of the head of any department of the Govern ment of India or any High Court in India, any authority in India exer cising jurisdiction similar to a High Court any Court subordinate to the High Court at Allahabad, any principal Court, in any foreign country, in his discretion, order a copy or copies to be made and delivered of any record; and such copy or copies may be made free of charge, unless they be required for the purpose of a litigant other than the Government." THIS shows that the Telephone Industry Ltd. obtained these certified copies with the object that they were not to be used by a litigant other than the Government (for purposes of this discussion we are assuming that Indian Telephone Industry Ltd., Government of India Undertaking, was entitled to obtain free copy under this rule). It cannot, therefore, be implied that in obtaining those copies Indian Telephone Industry was acting for the benefit of or on behalf of the appellant. Moreover, a perusal of the award under appeal shows that the claims tribunal had made a joint award for a sum of Rs. 56.700/- against the appel lant and the Indian Telephone Industry one of the grounds taken by the appellant is that its liability could in no case extend beyond Rs. 50.000/-. In other words it contends that in case the entire award is not set aside the liability of the Telephone Industry for sum of Rs. 6700/- should be converted into its exclusive liability. The interest of the appellant in this appeal, therefore, is not identical with that of the Telephone Industry which had obtained these certified copies and is to some extent adverse to it. The argu ment of the appellant based on common interest of the parties, therefore, loses all validity. We are, therefore, of opinion that the appellant is not entitled to exclu sion of time required by the Indian Telephone Industry in obtaining certified copies of the award and the decree filed along with the memorandum of appeal. If this time is not excluded the appeal filed by the appellant had become barred by time long before 6-10-1978 when it was presented before the Stamp Reporter of this Court. There being absolutely no explanation as to what prevented the appellant, in case it wanted to file the present appeal in time, to make application for obtaining certified copies of the award and the decree and thereafter to file a proper appeal before this Court in time. In the result, we are not satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. No case has been made out for condoning the delay in presenting the same. The application, therefore, fails and is dismissed.