(1.) This petition is directed against the order of the Additional District Judge, Ludhiana, dated 12th March, 1985, whereby the appeal was dismissed as barred by time.
(2.) The plaintiff-respondent Ujjagar Singh filed a suit for the recovery of Rs. 13,600/-. The suit was decreed by the trial Court on 25th July, 1984. Application for obtaining the certified copies of the judgment and the decree was filed on 1st August, 1984. However, the same was returned as the file was not traceable. The application was re-filed on 4th September, 1984. The certified copies were made available on 13th September, 1984. The date of preparation of the copies is shown to be 12th September, 1984. The same were filed in Court on 13th September, 1984. However, before the certified copies could be made available, the defendant filed the appeal on 1st September, 1984, by filing uncertified copies with the memorandum of appeal as he wanted to obtain stay order. When certified copies were filed on 13th September, 1984, he moved an application under Section 5 of the Limitation Act for condonation of delay. This application was contested on behalf of the plaintiff-respondent. The learned Additional District Judge took the view that since the appeal was filed after 30 days from the date of the decree of the trial Court dated 25th July, 1984, it was prima facie barred by time and, therefore, the application under Section 5 of the Limitation Act filed along with the certified copies was not maintainable. Reference was made to the provisions or Order 41 Rule 3-A, Civil Procedure Code, which read as under :-
(3.) After hearing the learned counsel for the parties, I am of the considered view that the whole approach of the learned Additional District Judge was misconceived, wrong and illegal. It is a case where the appeal was filed before the certified copies were made available. The petitioner-appellant was entitled to deduct the days for obtaining the certified copies and, thus, could file his appeal within 30 days after deducting those days. Admittedly, the certified copies were made available on 13th September, 1984 and the preparation of the copies is shown on 12th September, 1984, whereas the appeal was filed on 1st September, 1984, along with uncertified copies. On these facts, provisions of Order 41 Rule 3-A, Civil Procedure Code reproduced above, were not attracted at all. On the facts narrated above, the question of condonation of delay as such did not arise. The appeal was filed much earlier before the limitation expired. It is unfortunate that the case was not properly argued by the learned counsel for the parties before the learned Additional District Judge. The question of limitation was not at all relevant when the appeal was filed on 1st September, 1984, without certified copies.