GAJPATILAL Vs. MAULIPRASAD

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The only point for decision in the present appeal is that of limitation. The lower appellate Court held that the appeal presented to it from the decree of the Court of first instance, in the present case, was barred by time by four days and dismissed it. The relevant dates showing the time spent ins obtaining copies of the judgment and decree of the trial Court which are attached to the memorandum of first appeal are set out in the following table: -------------------------------------------------------------------------- Application Applicant Applicant Copying Subsequent Copy for copies. told to appeared. Stopped advance delivered appear. for want paid. on. of funds. -------------------------------------------------------------------------- 20-9-31 10-10-31 10-10-31 12-10-31 16-10-31 31-10-31 --------------------------------------------------------------------------

(2.) THE appellants claimed that time from 12th to 15th October 1931, that is four days, should be allowed to them as time spent in obtaining copies, but the lower appellate Court held that under the rules framed by this Court regulating the grant of copies, as published in Civil Circular No. IV-6, the duty of paying advance sufficient to cover the costs, in the very first instance, along with the application for copies was laid upon the appellants and since they paid only Rs. 3 and not Rs. 5-4-0 which was the cost requisite for obtaining the copies, they were not entitled to deduct the time between the 12th and 15th, when copying was stopped for want of funds, as time requisite for obtaining copies, under Section 12(2), Lim. Act. It is rightly argued for the appellants that the view taken of the copying rules by the learned District Judge is directly opposed to the interpretation placed upon them by this Court in Lachman v. Kalya (1916) 12 NLR 66. Rules 3 and 25 which cover the point for decision are in terms identical with the old Rules 3 and 26 respectively. Rule 3 requires that: every application shall be accompanied by an advance sufficient to cover the estimated cost of the copy applied for and states that "an application unaccompanied by an advance shall not be registered or acted on." Rule 8 prescribes the scale of costs : Rule 25 runs as follows: On receiving an application presented by hand the head copyist shall forthwith fix and intimate to the applicant a date within seven working days of the presentation on which he should attend to ascertain whether the copy is ready or whether any further advance is required. Should the copy not be complete on the date so-fixed, the applicant shall be directed to attend on another date within seven working days of the first, and so on.

(3.) RESPECTFULLY adopting the language of Batten, A. J. C., in Lachman v. Kalya (1916) 12 NLR 66 to the present case, I hold that for the days between 10th and 15th October the appellants were instructed that they need do nothing and that instructions as regards 10th October were that on that date they should attend to ascertain whether the copies were ready or whether any further advance was required. It was then the duty of the Copying Department to have intimated to the appellants when they appeared on 10th October that the advance originally made by them was insufficient and that Rs. 2-4-0 more would be required to complete the copies. As the appellants were not informed of this and were not asked to pay any further amount, they were in no way to be blamed if copying was stopped on 12th October for want of funds. The learned Counsel for the respondents argued, on the authority of some cases decided by the Lucknow Chief Court and the Calcutta High Court, that if an appellant fails to deposit in the very first instance, sufficient money or folios for the preparation of copies he cannot be allowed any time during which no progress is made in copying for want of funds or folios. But these cases having been decided on a strict interpretation of the copying rules in force in those provinces, which are admittedly different in language from ours, they can afford no guide for determination of the question in issue in the present case.