JITENDRA SINGH Vs. MULTANTNAL

JUDGEMENT

(1.) IN this Civil Second Appeal, the only question for decision is - 'whether the appeal filed by Thakur Madho Singh plaintiff against the defendants was rightly rejected by the lower appellate court on the ground that it was barred by limitation. ' The Civil Judge, Balotra dismissed the suit of the plaintiffs for the recovery of Rs. 6,218/3/0 on 9-12-1958. Against the judgment and decree of the trial courts the plaintiffs filed an appeal in the court of the District Judge, Balotra on the 27th of January, 1959. It may be mentioned that 25th and 26th January 1959 were holidays. The defendant took an objection that the appeal was barred by time as there were laches on the part of the plaintiff in obtaining copies of the judgment and decree of the trial court. For appreciating this contention the following facts may be mentioned. Daulatram, who styled himself as Karadar of the plaintiff filed an application in the trial court on the 20th in the form for obtaining the copies of the decree and the judgment along with one other document. Along with this application he submitted sheets of stamped copying paper which were of Rs. 6/- in value. The clerk in the Copying Department made a report on 22-12-1958 that sheets of the value of Rs. 2/8/- more may be ordered to be filed. On that day, the applicant was not present in the Copying Department and a notice to the applicant was given in Form F. 19 by affixing it on the notice board of the court as laid down in Rule 225 (4) of the General Rules ( Civil ) 1952 (hereinafter called 'the Rules' ). This notice was affixed on the notice board on 23-12-58. The court remained closed from the 25th December, 1958 to 1-1-1959 on account of Winter vacation. On 3-1-1959 Daulat Ram applicant submitted an application dated 2-1-1959 stating that he had to deposit sheets of stamped paper of the value of Rs. 2/6/- but such sheets were not available and therefore further time be granted to him to make up the deficiency or he may be directed to pay the amount of Rs. 2/6/-in cash. It so happened that on 3-1-59 Daulat Ram deposited the sheets of stamped copying paper of the required value. To this effect a report was submitted by the Copying Department. On that very date in the presence of the applicants 6-1-59 was fixed for delivery of the copy of the aforesaid document. Copies were ready on 6-1-59 but the applicant took the delivery on 7-1-59. There is no doubt that if the whole time from the 20th December, 1958 to the 6th of January, 1959 be considered to be the time requisite for obtaining copies of these documents, the appeal of the plaintiff was within limitation. It was, however, contended before the lower appellate court that Daulat Ram applicant should have submitted the sheets of stamped copying paper on 2-1-59 and not on 3-1-1959, and as such, the whole of the period from 25-12-58 to 2-1-59 could not be taken to be the period requisite for obtaining copies of these documents. The plaintiffs applied under sec. 5 of the Limitation Act for extension of time for filing the appeal and submitted an affidavit of Daulat Ram that on 2-1-1959, the sheets of stamped copying paper were not available and so he wanted to make an application on that very day to the court but that application could not be made that day and was filed on 3-1-1959 but later on the sheets became available. A counter-affidavit was filed on behalf of the defendants that sheets of stamped copying paper were available even on 2-1-1959. The lower appellate court took the view that the plea of the plaintiff that sheets of stamped copying paper were not available on 2-1-59 was a belated one and appeared to be not true. IN taking this view, the lower appellate court also remarked that if Daulatram Kamdar of the plaintiff-appellant could not get the copying folios etc. on 2-11-59, he should have made an application to the court on 2-1-59 and not on 3-1-59 and the filing of the required stamped copying paper on 3-1-59 showed that they were available with the stamp vendor. Taking this view of the matter on facts, the lower appellate court held that in the circumstances of the case, the plaintiffs were not entitled to exclude the period from 22-12-58 to 2-1-59 and the appeal was barred by time. The appeal was, therefore, dismissed. After the filing of this appeal, Madhosingh, plaintiff-appellant, died and his legal representatives were borough on record.

(2.) LEARNED counsel for the appellants has contended that the lower appellate court was wrong in holding that the period from 22-12-58 to 2-1-59 should not be excluded for filing the first appeal before the District Judge, Balotra. The contention of the learned counsel is that Daulatram Kamdar of the plaintiff was doing everything possible to obtain the copies of the documents. He deposited the sheets of the value in excess of the minimum value as prescribed in Rule 225 (2 ). Then it is contended that as soon as he came to know on 2-1-59 that he had to make up the deficiency, he made an application for extension of time on 3-1-59. But fortunately on that day, he was able to procure the deficient sheets and made up the deficiency and obtained the copies of the decree and the judgment in due course. Lastly, it is contended that the Copying Department instead of dismissing the application of the Kamdar of the plaintiff on 2-1-59 kept it pending up to 3-1-59 and after the deficiency had been made up, passed an order on that very application that copies will be supplied on 6-1-59 and as such, it must be taken that the court condoned the delay in filing the deficiency sheets of stamp copying paper and the plaintiffs are entitled to exclude the entire period from 25-12-58 to 6-1-59 taken in obtaining the copies. In this connection, it is also pointed out that had the application of the plaintiffs been rejected on 22-12-58, the plaintiffs would have made another application for obtaining copies as there was still limitation for filing the appeal and they were seriously prejudiced when the Copying Department adopted the course of granting copies on the application filed on 20-12-58.