MANOO RAI Vs. KESHWAR RAI

JUDGEMENT

(1.) The question for our decision is whether the appeal was presented in time on 14 March 1946. The matter was first placed before the learned Registrar on 27th March last. He came to the conclusion that the appeal was time-barred on the date it was presented to the Court. As the learned Advocate for the appellants was not prepared to make an application for condonation of the delay under Section 6, Limitation Act, the Warned Registrar directed that the matter be laid before the Bench. Ultimately, the case came up before me sitting singly. Being of the opinion that the question raised involved important considerations, and the decision, whatever it might be, would affect the practice of the Court one way or the other, I directed that the matter be referred to a Division Bench. It was placed before a Bench, consisting of Manohar Lall and Ray JJ., on 24 July 1946, and the Bench directed notice to is use "to the respondents to show cause why the delay, if any in filing the appeal should not be condoned. Ultimately, the matter has been placed before us, and the only question raised before us is whether the appeal is in time on 14 March 1946, when the memorandum of appeal was presented before the learned "Registrar. I do not find any application under Section 5, Limitation Act containing any statement of facts which would entitle the appellants to get the delay condoned, if this Court took the view that the appeal was time- barred when presented.

(2.) It appears that the appellate judgment was pronounced on 1 September 1945. The decree was not signed by the presiding officer of the Court until 30th November 1945. It appears that an application for copy of the judgment and decree both was made on 26 September 1945, and the copies were ready for delivery on 6 December 1945, and were actually delivered to the applicant on the following day. It appears further that court-fee stamps for the memorandum of appeal and for the Vakalatanama were purchased on 14 March 1946, on which day the memorandum of appeal was presented to the Stamp Reporter who noted on the back of the memorandum that limitation expired on 6 March 1946, as per calculation on the back of the vakalatnama. The calculation aforesaid would show that the Stamp Reporter gave ninety days to the appellants from the date of the judgment, expiring on 30 November and added to that period ninety-six days for time requisite for obtaining copies, that is to say 31 days in December, 31 days in January, 28 days in February and 6 days in March. But it was contended before us by the learned Counsel for the appellants that, the appellants having applied on 26 September 1945, for a copy each of the judgment and of the decree, which was delivered to them on 7 December 1945, they should be entitled to add not only the 96 days calculated from the 1 December 1945, as done by the learned Stamp Reporter, but also the days between 26 September 1945 and 1st December 1945. If this contention is well-founded in law, then it must be held that the appeal is in time. But this contention involves the proposition that the same period, namely, between 26 September 1945 and 1 December 1945, has to be added twice over as time requisite for obtaining the copies within the meaning of Section 12, Limitation Act

(3.) The question, therefore, is whether the litigant is entitled to credit for that period twice, over in view of the provisions of Section 12, Limitation Act. It has been contended on behalf of the appellants that under Section 12(2) of the Act the time requisite for obtaining a copy of the decree appealed from has to be excluded, and that under Sub-section (8) of that section the time requisite for obtaining a copy of the judgment has also to be similarly excluded. If the contention is well founded, in this case the appellant would be entitled to exclude the same period twice over in calculating the time for filing the appeal. Reliance has been placed upon a decision of the Nagpur High Court in Bal Krishna Rajaram V/s. Baijnath Girdharilal A.I.R. 1939 Nag. 150 in which, on a difference of opinion between the Chief Justice and another Judge constituting the Division Bench, Niyogi J. to whom the case was referred, agreed with the Chief Justice that, if an application for copy of the judgment to be appealed from is made on the day the judgment was pronounced, that day has to be excluded twice over in computing the period of limitation for filing the appeal. In that case the learned Chief Justice observed that Limitation Act should be construed so as to save rather than bar a proceeding. Niyogi J. in the course of his judgment made the following observations: It may be that in an exceptional case, such as the present, one day happens to be excluded twice. However startling, fantastic or absurd it may appear to be, the Courts cannot refuse to give effect to the plain meaning of the words used by the Legislature, if it does not conflict with reason and justice. As I have indicated above, there is nothing fundamentally unjust or unreasohable in excluding the same day twice.