http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: ADDL.  COLLECTOR OF CUSTOMS, CALCUTTA & ANR.

       Vs.

RESPONDENT: M/S.  BEST & CO.

DATE OF JUDGMENT: 25/03/1966

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SUBBARAO, K. RAMASWAMI, V.

CITATION:  1966 AIR 1713            1966 SCR   46  CITATOR INFO :  F          1977 SC 523  (9)

ACT: Limitation Act (9 of 1908), s. 12(2) and (3)-Application for leave  to  appeal-Rules  of  High  Court  permitting  filing without copies of judgment or order-Time taken for obtaining copies-If could be excluded in computing limitation.

HEADNOTE: The  respondent’s  petition under Art.  226  challenging  an order of the appellants (customs authorities) was ordered by the  High  Court.  The appellants  immediately  applied  for certified  copies of the judgment and order.  They filed  an application  for leave, to appeal to this Court against  the order of the High Court, along with a certified copy of  the judgment which alone was furnished to them by then; but  the application  was beyond the period of limitation even  after excluding the time taken for obtaining the certified copy of the judgment.  The certified copy of the order was furnished to the appellants thereafter, but it was not annexed to  the application  for leave to appeal.  The High Court  dismissed the application on the ground that it was barred by time. In appeal to this Court, the appellants contended that  they were  entitled  under  s. 12(2) of  the  Limitation  Act  to exclude  the time taken in obtaining the certified  copy  of the  order,  while  the respondent  sought  to  support  the dismissal on the grounds that: (1) the application for leave to   appeal  was  competent  without  annexing  either   the certified  copy of the judgment or order under the Rules  of the  High Court, and therefore, it cannot be said  that  the time  taken for obtaining the copy of the judgment or  order was  requisite,  and hence, could not be excluded  under  s. 12(2)   or  (3),  and  (ii)  the  prescribed  Form  for   an application  for leave prohibited the annexing of a copy  of the judgment or order. HELD:(i)  Under s, 12(2) and (3) of the Limitation Act,  the time for obtaining the certified copies of the judgment  and the decree or the order must be excluded while computing the period of limitation.  The Legislature allowed the exclusion to  enable a party who intends to file an appeal to  examine the  decree  or the judgment before he  launches  a  further

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

proceeding.  The provision does not depend upon whether  the Civil Procedure Code or Rules of a Court permit a petitioner to file an application for leave to appeal with or without a copy of the judgment or order or decree, and where the Rules so  permit,  whether  he  has annexed such  a  copy  to  his application or not. [52 H-53 B]. Surty  v. Chettyar, L.R. 55 I.A. 161, applied.  Gangaram  v. Beharilal  A.I.R. 1952 Bhopal 39 and Abdul Aziz v. Jai  Ram, A.I.R. 1951 H.P. 67, overruled. (ii)The  rule  and the Form prescribed do not lay  down  any mandatory  direction that a copy either of the order  or  of the judgment shall not be annexed. [51 B-C] 47

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 275 of 1966. Appeal by special leave from the order dated August 17, 1965 of  the Calcutta High Court in an application for  leave  to appeal to this court in Appeal No. 254 of 1963.                             WITH Civil Miscellaneous Petition No. 2195 of 1965 (Petition  for Condonation of delay). B.   R. L. Iyengar and B. R. G. K. Achar, for the appellant. A.   K. Sen and D. N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Shelat,  J.  On March 31, 1959 the  respondents  obtained  a licence to import certain machinery from West Germany.   The import licence contained particulars of the machinery to  be imported  and  inter  alia stated that its  value  would  be "C.I.F.  value of Rs. 45,000".  One of the  conditions  upon which the licence was issued was that:               "the above application is accepted and  import               licence  is granted having quantity and  value               as  the limiting factor and is not  valid  for               clearance  if  the actual value  of  any  item               exceeds  the  C.I.F. value  indicated  in  the               licence by more than five per cent." The  machinery arrived at the port of Calcutta  sometime  in July 1960 and was allowed to be cleared on the bill of entry submitted  on behalf of the respondents.  The bill of  entry showed  the C.I.F. value of the machinery at  Rs.  44,843.61 nP.   The customs authorities thereafter assessed  the  duty payable  on the said machinery and the duty so assessed  was paid by the respondents.  On May 6, 1961, in consequence  of certain information received by the authorities a search was made of the business premises of the respondents and also of Stahlumon  & Co.,. Ltd., the agents of the exporters.  As  a result  of  the  search certain documents  and  papers  were seized  by the customs authorities.  On June 19/20,  1961  a notice was served upon the respondents calling upon them  to show cause why action should not be taken against them under s. 167(8) of the Sea Customs Act, 1878.  The notice  alleged that the respondents were guilty of illegal import of  goods worth  Rs. 6,730.74 nP, that being the excess value  of  the goods permitted to be imported under the said licence.   The respondents   in   due  course   gave   their   explanation. Thereafter an amended show cause notice dated September  21, 1961 was served upon the respondents charging them under  s. 167(8)  of  the  Sea Customs Act read with s.  3(2)  of  the Imports and Exports Control Act. 1947 48 for   illegally   importing  the  said   consignment.    The respondents were given a personal hearing and thereafter the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

first  petitioner  passed  an order  dated  March  17,  1962 directing confiscation of the said machinery and imposing  a tine  of  Rs.  20,000 in lieu of  confiscation  and  further imposing  a personal penalty of Rs. 25,000/-.  Aggrieved  by this  order  the respondents filed a petition  in  the  High Court  under  Art.  226  of  the  Constitution  praying  for mandamus.  directing  the petitioners to rescind  the  order dated  March 17, 1962 and for certiorari quashing  the  said order.   The  learned single Judge who  heard  the  petition passed  an  order dated September. 2,  1963  dismissing  the petition   holding  that  the  said.  import  was   illegal. Thereupon  the respondents filed an appeal against the  said order  and  the  Appellate Bench of the High  Court  by  its orders  dated  December 18, 1964  allowed  the  respondents’ appeal  directing  the petitioners to  forbear  from  giving effect to the said order of the first petitioner.  The peti- tioners  filed an application for a certificate  under  Art. 133  but the Appellate Bench of the High Court by its  order dated August 17, 1964 dismissed the said application on  the ground that it was barred by limitation, though holding that (i)the  valuation tests laid down in sub-cl. (a) and (b)  of Art. 133(1) were satisfied, and (ii)that  the  order being one of reversal  the  petitioners were otherwise entitled to a certificate. The present appeal is against the said order dated  December 18, 1964 by which the High Court issued the writ of mandamus against the petitioners.  As  aforesaid,  the High Court delivered its  judgment  and ,passed  the abovmentioned order allowing  the  respondent’s appeal on December 18, 1964.  On December 19, 1964 the peti- tioners  applied for certified copies of the  said  judgment and the said order.  The certified copy of the judgment  was furnished  to  the  petitioners on January  18,  1965.   The petitioners  however  waited for the certified copy  of  the said  order  which was yet not furnished to  them.   As  the certified  copy of the said order was not finalised and  was not  ready  the petitioners filed the said  application  for leave on May 10, 1965; annexing thereto the certified  ,copy of the judgment only.- On July 17, 1965, a certified copy of ’the  said order was furnished to the petitioners  but  they did  not annex it to their application for leave as  it  was already filed.  As stated earlier, the High, Court dismissed the  application by its order dated-August 17, 1965, on  the ground  that  it was barred by limitation.  The  High  Court however  observed, that if the petitioners had  annexed  the certified  copy of the said order furnished to them on  July 17, 1965 they would have been entitled to exclude the,  time taken in obtaining it ,from  the period of Iimitation under 49 s.12(2) of the Limitation Act.  The result according to that view would be that:-  (i)if  the  petitioners had waited till July 17,  1965  and filed their application annexing also the certified copy  of the said order their application would have been within time as  they  would have been entitled to exclude the  time  for obtaining it; (ii) if they had amended their application and annexed the certified copy of the order on receiving the same they would still have been     entitled to exclude the aforesaid period and their application then would have been within time; and (iii)if they had withdrawn the application and filed a fresh application annexing thereto the certified copy of the  said order such fresh application would have been within time  as they  would have been entitled to exclude the time taken  in obtaining the certified copy of the order.  According to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

High  Court  the petitioners however were  not  entitled  to exclude  the  time for obtaining the certified copy  of  the order  as  they  had  filed  the  said  application  without annexing  thereto  the  copy of the  said  order  and  their application filed on May 10, 1965 was already time barred. According  to the respondents, since under Art. 132  of  the Limitation  Act  the application for leave had  to  be  made within  60 days, the petitioners’ application lodged on  May 10, 1965 was clearly beyond 60 days even after the certified copy  of the judgment was furnished to them on  January  18, 1965.   Consequently, the petitioners’ application was  time barred and was rightly rejected by the High Court. The  question for determination is whether  the  application for  leave  to  appeal  was barred  by  limitation  and  the petitioners  were  not  entitled  under  s.  12(2)  of   the Limitation  Act to exclude the time taken in  obtaining  the certified  copy of the said order.  Section  12(2)  provides that in computing the period of limitation for an appeal  or application  for  leave to-appeal, the time  requisite.  for obtaining  a copy of the decree, sentence or order  appealed from or sought to be revised shall be excluded.   Similarly, under  sub-section 3 where an application is made for  leave to  appeal, from a decree or order, the time  requisite  for obtaining  a copy of the judgment on which the decree or  an order is founded shall also be excluded.  On a plain reading of  these  sub-sections,  it  is clear  that  the  time  for obtaining  the certified copy of both the judgment  and  the decree  or order as the case may be must be  excluded  while computing  the  period  of limitation.  The  object  of  the exclusion  is  to enable the person desiring  to  appeal  to consider the terms of the decree, judgment and order  before he decides to launch a further proceeding in respect of it. Two  views  were, however, canvassed before us on  the  con- struction of-s. 12.  One was that the right of exclusion  of time is 50 qualified by the words "time requisite for obtaining a  copy of  the  decree,  sentence  or  order"  in  sub-section   2. Therefore,  if an application for leave to appeal  does  not require  a  certified copy of the order in  question  to  be annexed  to the application, it is not possible to say  that the  time required for obtaining such a copy was  requisite. In  such cases the time in obtaining the copy would  not  be requisite  time and consequently the applicant would not  be entitled  to  exclude  the  time  taken  in  obtaining   the certified  copy of the order.  Certain decisions of some  of the  High  Courts  have also taken the  view  that  such  an applicant  would not be entitled to the benefit of the  sub- section where a copy of the decree, judgment or order is not actually  annexed  to the application or the  memorandum  of appeal.   The  other view is that sub-ss. 2 and 3 of  s.  12 enact  the rule of exclusion as a positive  direction.   The object   of  the  sub-section  being  to  afford   a   party opportunity to consider his position even where a  certified copy  of  the judgment gives all the  necessary  information enabling  the party to decide to proceed further or not,  he would  nevertheless  be  entitled to exclude  the  time  for obtaining the certified copy of the decree or order.  It has been  held in some decisions that even in cases where it  is not necessary to prepare a formal order, if such an order is prepared,  the  party would be entitled to  the  benefit  of exclusion  of time taken in preparing and furnishing a  copy thereof where it is applied for. Counsel  for  the respondents relied on the first  view  and argued  that  though the petitioners applied  for  certified

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

copies of both the judgment and the order, they were at best entitled  to exclude the time for obtaining the copy of  the judgment  as  they had annexed such a copy but  not  to  the exclusion of time in obtaining the latter. He contended that though the petitioners applied also for the copy of the said order  it  was not necessary for them to annex it  to  their application  and  in  fact though it  was  applied  for  and obtained  it  was  not actually  annexed.   That  being  the position  and  the  application for leave  to  appeal  being competent without annexing either the certified copy of  the judgment  or of the order under the rules of the High  Court of  Calcutta it would not be possible to say that  the  time for  obtaining  the  copy was time for  something  that  was requisite and therefore that time could not be excluded.  He also argued that the rules of the High Court of Calcutta not only  did  not require such a party to annex a copy  of  the order  but the prescribed form for such an  application  was mandatory  in language and was a provision to the  contrary. He  therefore argued that there was a double reason for  the petitioners  not  being  entitled  to  the  benefit  of  the exclusion. We  shall  deal with the second contention first  as  it  is capable of an easy disposal.  Rule 4, in Chapter XXXIIIA  of the Rules of the High Court requires that an application for leave to appeal 51 shall  be  made by a notice of motion before  the  appellate court  and shall be presented in the prescribed form,  viz., Form No. 3. That form does not require that a certified copy of  the judgment and/or decree or order need be  annexed  to such  an application.  The rule and the form thus  enable  a party  to  file  an application for  a  certificate  without annexing either a copy of a judgment or a copy of an  order. But  that does not mean that the rule and the form lay  down any  mandatory direction that a copy either of the order  or of the judgment shall not be annexed.  The rule and the form thus do not assist or further the argument urged by  counsel for the respondents. In  regard to his first contentoin the learned  counsel  for the  respondents urged that sub-ss. 2 and 3 of S.  12  would not  apply where it is not necessary to annex a copy of  the judgment  or order.  For, in such a case it is not  possible to say that the time taken in obtaining such a copy is  time "requisite" within the meaning of that expression in  sub-s. 2  of S. 12.  Exclusion of the time required in obtaining  a copy of the order therefore can only be allowed if and  only if,  such a copy is either required to be annexed or in  any event  is  in  fact annexed to the  petition  for  leave  to appeal.  The question is: is the provision for exclusion  of time in S. 12(2) dependent upon whether the rules of a court permit a petitioner to file an application for leave with or without a copy of the judgment or order or decree and  also where the rules so permit whether he has annexed such a copy to  his  application?   In Surty v.  Chettyar(1)  the  Privy Council  after considering various decisions  ,of  different High  Courts held that (1) the preponderance of practice  in India was that time for obtaining a copy of the judgment  or decree  or order should be excluded even thought  under  the rules of the Court it was not necessary to obtain a copy  of the  judgment or decree to be filed with the  memorandum  of appeal,  and  (2) that on a grammatical construction  of  s. 12(2), the subsection plainly lays down a positive direction for  exclusion of time without any reference to the Code  of Civil  Procedure  or  any  other  Act.   In  that  case  the appellant  had  brought a suit on the original side  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

High  Court of Rangoon.  That suit was dismissed on  January 8,  1925.   On April 28, he filed his memorandum  of  appeal before  the  appellate side of the High Court.   A  question arose  whether the appeal was filed in time.  The  appellant tried to explain the delay and prayed for extension of  time but  the court refused to condone the delay  and dismissed the  appeal.   The appellant then filed an  application  for review  and it was then that he for the first  time  invoked sub-ss.  2 and 3 of S. 12 contending that the time taken  in obtaining  the copy of the order and of the judgment  should be  excluded.   The  Court  upheld  the  contention  of  the respondents  that such time could not be excluded  as  under the rules of that High Court the memorandum of appeal could (1) 55 I.A. 161 52 be  filed without annexing thereto the copy of the  judgment or the order.  This view was challenged in appeal before the Privy  Council.  The rule on which the respondents  in  that case  relied  provided that a memorandum of  appeal  and  an application for revision should be accompanied by  certified copies of the judgment and decree unless they were dispensed with  by the court.  That rule however had a  proviso  which was in the terms following:-               "Provided that a memorandum of appeal  against               a  decree  or order of the High Court  in  the               exercise  of the original jurisdiction may  be               presented  without  a certified  copy  of  the               decree or formal order accompanying it., Relying on this rule, it was contended that inasmuch as  the proviso  enables the appellant to file his appeal without  a copy  of  the order or judgment the appellant would  not  be entitled  to exclusion of time as such time , would  not  be "requisite" time within the meaning of s. 12(2) and the High Court was therefore right in dismissing the appeal as  being beyond   time.   The  Privy  Council  disagreed  with   this contention holding that s. 12 contained a positive direction for  exclusion  of  time and  that  such  direction  applied irrespective of whether the rules permitted the filing of an appeal  or an application without annexing the copy  of  the order  or judgment.  The Privy Council emphasised  that  the positive  direction  contained in s.  12  was  unconditional inasmuch  as there was no reference therein to the  Code  of Civil Procedure and the section did not say why the time was to be excluded.  At page170   of   the  report   the   Privy Council observed:               "if,  indeed, it could be shown that  in  some               particular  class of cases there could  be  no               object  in  obtaining the  two  documents,  an               argument  might be offered that no time  could               be  requisite  for  obtaining  something   not               requisite.   But this is not so.   The  decree               may be complicated, and it may be open to draw               it   up  in  two  different  ways,   and   the               practitioner may well want to see its form               before  attacking  it  by  his  memorandum  of               appeal.  As to the judgment, no doubt when the               case  does  not  come  from  up  country,  the               practitioner will have heard it delivered, but               he  may  not carry all the points  of  a  long               judgment  in his memory, and as Sir John  Edge               says,  the  Legislature may not  wish  him  to               hurry  to  make a decision till  he  has  well               considered it." These observations were an answer to the contention that  no time   could  be  requisite  for  obtaining  something   not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

requisite.   The  legislature  allowed  the  exclusion  even though  the rules of a court might not require a copy to  be annexed to the memorandum of                              53 appeal for a party who intends to file an appeal may  desire to  examine the decree or the judgment before he launches  a further  proceeding.  Therefore, the exclusion  was  allowed irrespective  of tile rules of a court which permit a  party to  file an appeal without annexing a certified copy of  the judgment or decree or order. In Imperial Bucket Co. v. Smt.  Bhagwati Basak(1) there  are however  observations to the effect that an  appellant  will have the benefit of s. 12 in a case where he has annexed  to the  memorandum of appeal a certified copy of  the  judgment appealed  from  even though by the statute under  which  the appeal  is  filed, no certified copy of the  order  appealed from  is required.  This decision does not necessarily  mean that  where  a  copy is applied for  and  obtained  but  not annexed  the  time  in  obtaining it was  for  a  thing  not requisite.   As  the Privy Council observed, a  party  might like to examine the judgment or the decree or the order  be- fore  he  challenged  it  in a  higher  forum.   Though  the judgment  states that such time would be excluded where  the copy  is annexed, it does not lay down that there can be  no exclusion of time where it is not annexed.  But in  Gangaram v.  Beharilal(1) a view has been taken that sub-ss. 2 and  3 of s. 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review.  This view is not in consonance with and in fact is  contrary  to the interpretation of s. 12  by  the  Privy Council in Surty’s Case(1) and is therefore unwarranted. The same  must  also be said of Abdul Aziz v.  Jai  Ram(1).   As observed by the Privy Council in Surty’s Case(") the view of the  High  Courts  of  Bombay,  Calcutta  and  Allahabad  as expressed in Haji Hassum v. Noor Mohammedan(5), Kalipada  v. Shakhar(6),  and Waji-Ali Shah v. Nawal Kishore(7) was  that an appellant was entitled to exclusion of time in  obtaining a copy of a judgment and decree even though the rules permit him  to file the appeal without annexing such a  copy.   The view contended for on behalf of the respondents is thus  not only  contrary to the decision of the Privy Council  but  if accepted  would lead to a somewhat surprising result,  viz., that  if  the petitioners had waited till the  copy  of  the order  was furnished to them, their application  would  have been in time or if they had withdrawn their application  and filed  a fresh one or amended their application and  annexed the  copy  of the order such a fresh  application,  or  such amended  application,  which in its unamended  form  was  in their  view  time barred, would have been  well  within  the period  of limitation.  In our view such a result is not  to be  contemplated.   As the Privy Council has laid  down  the provisions of s. 12(2) and (3) are a positive      (1) A.I.R. 1954 Cal. 520.     (2)A.T.R. 1952 Bhopal 39.      (3) 54 I.A. 161.              (4) A.I.R. 1951 H P. 67.      (5) 1,T,.R. Born. 643.        (6) 24 Cal. 235. (7)  I.T,.R. 17 All. 213. 54 direction  excluding the time taken in obtaining a  copy  of the  judgment  and decree or order as the case  may  be  and those  provisions  are  irrespective of the  Code  of  Civil Procedure  or the rules made by a court under s. 122 of  the Code.   Such rules if they permit a memorandum of appeal  to be filed without annexing thereto a copy of the judgment  or decree  or order confer a privilege on a would be  appellant but do not govern the positive direction contained in s. 12.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

The  High  Court in this view, therefore, was not  right  in dismissing the petitioners’ application for leave to  appeal on the ground that it was barred by limitation. In  the result, we allow the appeal and set aside  the  High Courts order of dismissal and remand the case directing  the High  Court  to decide that application in the hot  of  this judgment and consider whether the petitioners were  entitled to  leave  under Art. 133 of the Constitution.   As  we  are allowing the appeal. no order need be passed on the petition for condonation of delay. The Special Leave Petition 1110 of 1965  is allowed to be with. drawn.  There will be no  order as to costs. Appeal allowed. 55