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PETITIONER: LALA BALMUKUND (DEAD) THROUGH L.RS.

       Vs.

RESPONDENT: LAJWANTI AND ORS.

DATE OF JUDGMENT01/04/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. GUPTA, A.C.

CITATION:  1975 AIR 1089            1975 SCR   44  1975 SCC  (1) 725  CITATOR INFO :  R          1977 SC2319  (36)

ACT: Interpretation  of  Statutes-Statutes  prescribing  law   of limitation-Consstruction   of   an   ambiguous    provision- interrelation    producing   penalising   effect,    whether permissible. Limitation  Act,  1908, Section 12(2)  "time  requisite  for obtaining  a copy of the decree"--"Time requisite",  meaning of-Period  of  delay In preparing the decree,  when  can  be excluded.

HEADNOTE: One  Roshan Lal and two others filed a suit in the Court  of Munsif  Havali,  Lucknow against Balmukund and  another  for dissolution  of  partnership,  rendition  of  accounts   and recovery.   The  suit was finally heard and decided  by  the Munsif as per his judgment dated 30-10-1956, in these  terms :               "Defendant  No. I Lala Balmukand shall  pay  a               total sum of Rs. 15,927/2/- to the  plaintiffs               in  which they have equal shares.   Plaintiffs               shall also get their costs from defendant  No.               1. Let a final decree be PM pared  accordingly               provided  necessary court-fee is paid  by  the               plaintiffs within one month." The  plaintiffs  did not pay the court-fee within  the  time originally fixed in the judgment.  They asked for  extension of time which was granted without notice to the other  side. The plaintiffs then deposited the necessary court-fee within this extended time, on 18-1-1957.  About 12 days thereafter, on 30-1-1957, the final decree was drawn up and signed. The  appellant  (defendant No. 1) made  an  application  for obtaining  a copy of the judgment on 14-11-1956.   The  copy was  prepared and delivered to the appellant on  16-11-1956. On  26-11-1956 i.e. about two months before the  decree  was actually  drawn  up  and  signed,  the  appellant  made   an application for a copy of the decree.  The copy was prepared and  delivered  to counsel for the  appellant  on  1-2-1957. information  about the supply of this copy was  received  by the appellant at Delhi on 3-2-1957.

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Against the judgment and decree of the Munsif, the defendant filed  an  appeal on 12-2-1957 before the  Additional  Civil Judge,  Lucknow.   Along with the Memorandum of  Appeal,  he submitted  an application under a. 5 of the Limitation  Act, for condonation of delay in respect of the period from  6-2- 1957.  By his judgment dated 14-2-1957, the Judge  dismissed the. appeal as time barred.  The second appeal preferred  by the  defendant was also- dismissed by the High Court.   This appeal is based on the special leave granted by this Court. On  behalf  of  the  appellant it  was  contended  that  the Additional Civil Judge had exercised his discretion under 8. 5 of the Limitation Act in a grossly unjust and unreasonable manner  in not condoning the delay.  It was  also  contended that the entire period between the date of the judgment  and the  signing  of the decree, in the  circumstances  of  this case,  was the "time requisite" for obtaining a copy of  the decree and should have been excluded, as such under s. 12(2) of the Limitation Act, 1908. Allowing the appeal, HELD  : (i) In the courts below, the appellant did not  take up  the plea that the delay was due to wrong advice  of  the Counsel or that the appellant 45 was  labouring under any mistake or misapprehension of  law. The  case  then set up by him was that being  a  patient  of heart disease, he remained confined, under medical  advice, to  bed.  He was fit enough to travel on the 10th  February, but for want of funds he could not reach Lucknow from  Delhi on  the  11th February.  He produced  a  post-dated  medical certificate, but did not examine the Doctor concerned.   The appellant had an adult son who used to look after the  case. In these circumstances, it could not be said that the  first appellate   court   exercised   its   discretionary power perversely or illegally so as to warrant interference by the High Court in second appeal [47D-E] (ii)limitation  Act deprives or restricts the right  of  an aggrieved person to have recourse to legal remedy, and where its  language  is  ambiguous, that  construction  should  be preferred which preserves such remedy to the one which  bars or  defeats  it.  A Court ought to avoid  an  interpretation upon a statute of Limitation by implication or inference  as may have a penalising effect unless it is driven to do so by the  irresistible  force  of the language  employed  by  the legislature.[50A] (iii)  The expression ’%me requisite’ in the  phrase,  "time requisite for obtaininga copy of the decree", occurring in s.  12 (2A) of the Act means all the time counted  from  the date  of the pronouncement of the judgment (the  same  being under  Order  20, Rule 7, C.P.C., the date  of  the  decree) which  would be properly required for getting a copy of  the decree including the time which must ex-necessitas elapse in the circumstances of the particular case, before a decree is drawn  up  and  signed.   If any  period  of  the  delay  in preparing  the  decree was attributable to  the  default  or negligence  of  the  appellant,  the  latter  shall  not  be entitled  to the exclusion of such period under s. 12(2)  of the Limitation Act, 1908. [50G-H] (iv)Under  the  judgment  or any rules  of  the  court  the appellant  was  not required to take any  step  towards  the preparation  of  the  decree.  No period  of  the  delay  in drawing  up the decree was attributable to the fault of  the appellant.  The delay was mainly due to the delayed  deposit of  the  court-fee by the plaintiffs and partly due  to  the laxity  of the office of the court.  Although the  appellant prematurely  filed an application for getting a copy of  the

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nonexistent  decree  on 26-11-1956,  he  could  legitimately defer that action till the condition precedent on which  the drawing up of the decree was dependent, was performed by the plaintiffs.   It  would not have been  extravagant  for  the appellant  to wait till the court-fee was deposited  by  the plaintiffs,  for, in the event of non-deposit of the  court- fee, there was a reasonable possibility of their suit being, dismissed,  or at any rate, of the decree against which  the defendant felt aggrieved and eventually appealed, not  being passed.  Under the circumstances, the appellant was entitled to the exclusion of the entire time between the date of  the pronouncement of the judgment and the date of signing of the decree,  as the ’time requisite for obtaining a copy of  the decree.  After such exclusion--avoiding double  counting-his appeal  filed in the court of the Additional Civil Judge  on 12-2-1957, was fully within time. [51B-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 130 of 1968. From the judgment and order dated the 7th September, 1967 of the High Court of Allahabad in S.A. Appeal No. 18 of 1958. R.   K.  Garg,  S. C. Agarwala and V. J.  Francis,  for  the appellants. A.   N. Goyal, for the respondents, The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave directed against a judgment  of the Allahabad High Court raises a  question  in regard  to the interpretation of s. 12(2) of the  Limitation Act 1908.  It arises out of these circumstances                              46 Roshan  Lal  and  two others filed a suit in  the  Court  of Munsif  Havali,  Lucknow against Balmukund and  another  for dissolution  of  partnership,  rendition  of  accounts   and recovery.   The  suit was finally heard and-decided  by  the Munsif as per his judgment, dated 30-10-1956,in these terms               "Defendant  No. 1 Lala Balmukund shall  pay  a               total sum of Rs. 15,927/2/- to the  plaintiffs               in  which they have equal shares.   Plaintiffs               shall also get their costs from defendant No.               1. Let a final decree be prepared  accordingly               provided  necessary court-fee is paid  by  the               plaintiffs within one month." The  plaintiffs; did not pay the court-fee within  the  time originally fixed in the judgment.  They asked for  extension of time which was granted without notice to the other  side. The plaintiffs then deposited the necessary court-fee within this extended time, on 18-1-1957.  About 12 days thereafter, on 30-1-1957, the final decree was drawn up and signed. The  appellant  (Defendant No. 1) made  an  application  for obtaining  a copy of the Judgment on 14-11-1956.   The  copy was prepared and delivered to the. appellant on  16-11-1956. On  26-11-1956 i.e. about two months before the  decree  was actually  drawn  up  and  signed,  the  appellant  made   an application for a copy of the decree.  The copy was prepared and  delivered  to Counsel for the  appellant  on  1-2-1957. Information  about the supply of this copy was  received  by the appellant at Delhi on 3-2-1957. Against the judgment and decree of the Munsif, the defendant filed  an  appeal on 12-2-1957 before the  Additional  Civil Judge,  Lucknow.   Along with the Memorandum of  Appeal,  he submitted  an application under s. 5 of the Limitation  Act, for condonation of delay in respect of the period from  6-2- 1957  to  12-2-1957.  By his judgment dated  14-2-1957,  the

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Judge dismissed the appeal as time barred. Aggrieved,  the defendant preferred a second appeal  to  the High Court. Before  the  learned  single Judge of  the  High  Court  the appellant  urged : :(1) That the first appellate  Court  did not properly exercise its discretion when it held that there was  no  sufficient cause for condoning the delay;  (2)  (a) That  as  the decree passed was conditional  on  payment  of court-fee,  the  date when the decree  was  actually  signed should  be the date of" the decree; (b) That as  the  decree was  prepared  late,  it  should  be  held  that  the  "time requisite.  for obtaining a copy of the decree" was not  the only  time  while the application for a copy of  the  decree remained pending but also the time prior, to it. The   learned,  Judge  rejected  both   these   contentions. Following  the rule in Keshar, Sugar Works Bombay v.  R.  C. Sharma and Ors.,(1) (1)  AIR 1951 All, 122 F.B.                              47 he  held that the, period between the date of the  judgment (30-10-1956)  and  the  date  (26-11-1956)  of  making   the application  for  copy  could  not  be  excluded  as   "time requisite for obtaining a copy of the decree" under  s.12(2) of  the  Limitation  Act.  In the result  he  dismissed  the appeal as barred by limitation.  Hence this appeal. The  contentions  which  were canvassed  on  behalf  of  the appellant in the High Court.-have been reagitated before  us by Shri R. K. Garg.  Firstly,  it is urged that the Additional Civil  Judge  had exercised his discretion under s. 5 of the Limitation Act in a  grossly unjust and unreasonable manner in  not  condoning the  delay.   It  is submitted that  apart  from  the  sworn statement  of  the  appellant that he was  ill,  there  were patent  circumstances  in  this  case  which  by  themselves constituted  a. sufficient cause for condoning the delay  of six days in filing the appeal.  ’It is stressed that the law on  the  point  was anything but clear,  and  the  delay  in applying  for a copy of the decree was due to the  delay  in preparation  of the decree, which in turn, was  attributable mainly  to the default of the plaintiffs-respondents in  not furnishing  the court-fee within the time specified  in  the judgment. It  is to be noted, that in the courts below, the  appellant did  not take up the ’plea that the delay was due  to  wrong advice  of the Counsel of that the appellant  was  labouring under any mistake or misapprehension of law.  The case  then set up by him was that being a patient of heart disease.  he remained  confined, under medical advice, to bed.He was  fit enough to travel on the 10th February but for want of  funds he could not reach Lucknow from Delhi on the, 11th February. He  produced a post dated medical certificate, but  did  not -examine  the Doctor concerned.  The appellant had an  adult son   who   used  to  look  after  the   case.    In   these circumstances, it could not be said that the first appellate court  I  exercised its discretionary  power  perversely  or illegally  so as to warrant interference by. the High  Court in   second  appeal.   We  therefore,  negative  the   first contention. Next it is contended that the entire period between the date of  the  judgment  and the signing of  the  decree,  in  the circumstances  of  this  case, was the  "time  requsite  for obtaining a copy of the decree should have been excluded, as such under s.12(2) of the Limitation.  Act 1908.   According to the learned Counsel, the Allahabad High Court has wrongly interpreted the provisions of s. 12(2) ; while the  contrary

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view taken by the other ’High Courts is correct.  As  against  this, Mr. Goyal, the learned Counsel  for  the Respondent takes his stand on the reasoning and ratio of the Full Bench decision of. the Allahabad High Court ’in  Keshar Sugar Mills case (supra).               The material part of s.12(2) runs thus               "In computing the period of limitation for, an               appeal......               was,pronounced                                     48               and the time requisite for obtaining a copy of               the decree............ or order appealed  from               shall be excluded."               (emphasis supplied) There  is a conflict of opinion as to the meaning and  scope of  the phrase "time requisite for obtaining a copy  of  the decree  or  order".  This conflict has  arisen  because  the phrase in question is susceptible of a restricted as well as a liberal interpretation.  On a narrow-guage view, the "time requisite"  spoken  of  in this phrase  is  to  be  strictly confined  to the period commencing with the date  of  making the  application  for copy and ending with the date  of  the grant  of  the copy, irrespective of whether the  decree  or order,  copy of which is sought, is or is not in  existence. This  view has found favour with the Allahabad  High  Court. It  was  first propounded by Mahmood J. in  Bechi  v.  Ahson Ullah Khan(1), thus:               "The words "requisite" and "obtaining" as they               occur in   the  context seem to me  to  assume               that some definitestep ancilliary  to   the               "obtaining", that is, acquisition, is notonly                intended  to  be taken but has  already  been               taken The time requisite for "obtaining a copy               of the decree" cannotrefer     to     any               period  antecedent to the  appellant’s  asking               for acopy by  the  usual  mode  of   applying               therefor, or to any periodsubsequent   to               its being ready for delivery". The  ratio  of Bechi’s case (supra) has been  reaffirmed  by Malik C.J., speaking for the majority in Keshar Sugar  Works Bombay v. R. C. Sharma (supra), with this observation :               "........    the   words    "requisite"    and               "obtaining"  mean  that  some  definite   step               should  be  taken  by  the  applicant  himself               toward  the  attainment  of the  copy  and  it               cannot be said that the time was required  for               obtaining  a  copy if the  appellant  has  not               applied for a copy thereof.. the appellant  is               not required to wait tiff the decree is  ready               before he can file his application for a copy. The basis of this view is that the process of ’obtaining’  a copy  begins only when an application for it is made.   Thus it places greater stress on the word ’obtaining’ than on the expression  ’time  requisite’.  It purports  to  ignore  the delay in drawing up of the decree the existence of which  is a  condition  precedent to the obtainment of  its  copy-even where  such delay is the result of circumstances beyond  the control of the appellant. The  contrary view proceeds on a liberal  interpretation  of the  language  of s. 12(2).  It places due emphasis  on  the expression "time requisite" and gives it full effect, which, according  to  it, is not restricted to  the  time  actually taken, but is wide enough to encompass all the time property required.   Consequently,  the time properly taken  for  the preparation  of  the  decree and  the  time  which  properly

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elapses in (1)  ILR 12 All. 461 F.B.                              49 the   circumstances  of  a  particular  case   between   the pronouncement of the judgment and the signing of the decree, should also be excluded as the time necessary for  obtaining its  copy.   The  action on the part  of  the  appellant  in applying  for  a copy of the decree is not  always  decisive factor  in  considering  whether  any  time  should  be   so excluded.   In a case where various steps might have  to  be taken  by  the parties before a decree could  be  ready  and signed, the court would have to consider whether any of  the time taken for preparation of the decree could be attributed to the fault or negligence of the appellant.  If any of  the time  could  be so attributed, then that time could  not  be excluded  under s. 12(12).  This, in substance, is the  view adopted  by  the  High  Courts  of  Bombay(1),  Calcutta(2), Patna(3) , Nagpur(4 ) and Assam(5). The  leading case wherein this view was first enunciated  is Bani  Madhub Mitter V. Matangini (supra).  In Pramatha  Nath v.  W.  A.  Lee(,’),  the Privy  Council  referred  to  Bani Madhub’s  case  in  terms which could be  indicative  of  an implied  approval  of  its ratio  decidendi.   The  Judicial Committee  distinguished  Bani Madhub’s case on  the  ground that  the appellant therein was not at fault at all and  all that Bani Madhub’s case bad decided was that the two periods of  time,  "one of which was prompt and  effective  and  the other  of  which the appellant might not have been  able  to control,  ought  to  be deducted from  the  length  of  time between the decree. and the lodging of the memorandum".   In their  Lordships’  opinion, the real test  was  whether  the party  was responsible for the delay in preparation  of  the decree  or order, or the delay was unavoidable, and  due  to circumstances  beyond  the control of  the  appellant.   The conduct  of  the appellant was considered to be  a  material factor  in  determining the time requisite for  obtaining  a copy  of the order.  In computing such time  requisite,  the benefit  of  any period which elapsed due  to  circumstances beyond the appellant’s control had to be given to him.   But any  time which lapsed on account of his default should  not be so excluded In  Jiji  Bhoy  N.  Surty v. T.  S.  Chettyar  Firm(7),  the Judicial  Committee  held that the word  ’requisite’  in  s. 12(2) means ’properly required’ and implies that no part  of the  delay  beyond  the prescribed period  was  due  to  the appellant’s default. We  do  not wish to encumber this judgment with  a  detailed discussion  of all the citations and the reasoning  advanced therein  in  support of one or the other view.  It  will  be sufficient  to say that upon the language of s.  12(2)  both the  constructions are possible, but the one adopted by  the majority of the courts, appears to be (1)  Jaya Shankar Malushankar v. Mayabhai AIR  1952  Bom.122 F.B. (2)   Bani Madhub Mitter v. Matangi Dassi, ILR 13  Cal.  104 Secretary of State v. Parijat Debi, AIR 1932 Cal. 331. (3)  Gabriel Christian v. Chandra Mohan Missir, ILR 15  Pat. 284. (4)  Bhagwant v. Liquidator, Cooperative Society  Sarphapur, ILR 1955 Nag.791 F. B. (5)Arun  Chandra Swami v. Mohd.  Mujib Choudhry  AIR  1955 Assam 129 S.B. , (6   AIR 1922 P.C. 452. (7)  55 I.A. 16 : AIR 1928 P.C. 103.                              50

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more consistent with justice and good sense.  The Limitation Act  deprives or restricts the right of an aggrieved  person to have recourse to legal remedy, and where its language  is ambiguous,  that  construction  should  be  preferred  which preserves  such remedy to the one which bars or defeats  it. A  court ought to avoid an interpretation upon a statute  of Limitation  by  implication  or  inference  as  may  have  a penalising  effect  unless  it is driven to  do  so  by  the irresistible   force  of  the  language  employed   by   the legislature. Considered in the light of this cardinal canon, we are,  not persuaded  to accept the Allahabad view.  Although there  is nothing  in  the  Limitation  Act  or  the  Code,  of  Civil Procedure  requiring that the application for a copy of  the decree  or order should be made within the, ordinary  period of limitation, this view reads such a peremptory requirement into  the  statute  and makes it a terminuses  of  the  time necessary for obtaining a copy of the decree even if such  a decree  did not or could not come into existence within  the prescribed  period, due to circumstances beyond the  control of  the appellant.  It puts undue emphasis on  the  starting point   of   the  process  of  obtainment  of  a   copy   by synchronising  it  with the date of  applying,  whereas  the emphasis should have been on the final act of obtaining  the copy.   It unnecessarily whittles down the amplitude of  the word    "for"   (immediately   preceding   the    expression "obtaining")  as if it was "in"; whereas in the  context  it appears  to  carry a wider connotation,  equivalent  to  "in respect  of",  indicating that the scope of  the  expression "time requisite" and "obtaining" (in association with  which it  occurs) is not necessarily confined to the  activity  of the appellant, but is relatable to the circumstances of  the ’case,  beyond the control of the appellant.  The  Allahabad view overlooks the stark truth that if a party applies for a copy of a decree not yet in existence, he cannot be said  to be  ’obtaining’ the copy during the period the original  was yet  to  be prepared and which for some reason, not  of  the party’s  making,  could not be brought into  existence.   To hold that in such a case, also, be was ’obtaining’ a copy of the  non-existent  original,  would be conjuring  up  a  new fiction over and above that envisaged by O. 20, R: 7 of  the Code  of  Civil  Procedure.   In  short,  this  construction constricts  the scope of the phrase "the time requisite  for obtaining  a copy of the decree or order", so as to have  an unduly  penal  effect.   We would,  therefore,  eschew  this construction  and approve the other. adopted by most of  the High Courts. in  our  opinion,  the expression "time  requisite"  in  the phrase in question, means all the time counted from the date of  the pronouncement of the judgment (the same being  under Order  20,  Rule 7, C.P.C., the date of  the  decree)  which would be properly required for getting a copy of the decree, including  the  time which must exnecessitas elapse  in  the circumstances  of the particular case, before a  decree  is’ drawn  up  and  signed.   If any  period  of  the  delay  in preparing  the  decree was attributable to  the  default  or negligence  of  the  appellant,  the  latter  shall  not  be entitled  to the exclusion of such period under S. 12(2)  of the Limitation Act, 1908. Applying  the law as enunciated above to the facts  of  the, case in hand, it will be seen that the drawing up or  coming into existence                              51 of  the original decree, of which the copy was  sought,  was conditional upon the payment of court-fee by the  plaintiffs

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within  thirty-  days of the pronouncement of  the  judgment (30-10-1956).   The  plaintiffs  did not  comply  with  that direction  within  the  time  originally  specified  in  the judgment.   They deposited the court-fee only  on  18-1-1957 within the extended time which was granted without notice to the  defendant-appellant.  Even after that, the  decree  was not signed till 30-1-1957.  Under the judgment or any  rules of  the  court, the appellant was not required to  take  any step  towards the preparation of the decree.  No  period  of the  delay in drawing up the decree was attributable to  the fault  of  the appellant.  The delay was mainly due  to  the delayed  deposit  of  the court-fee by  the  plaintiffs  and partly  due  to  the  laxity of the  office  of  the  court. Although the appellant prematurely filed an application  for getting  a copy of the nonexistent decree on 26-11-1956,  he could  legitimately  defer that action  till  the  condition precedent  on  which  the  drawing  up  of  the  decree  was dependent,  was performed by the plaintiffs.  It  would  not have  been  extravagant for the appellant to wait  till  the court-fee was deposited by the plaintiffs, for, in the event of  non-deposit  of the court-fee, there  was  a  reasonable possibility  of their suit being dismissed, or at any  rate, of the decree against which the defendant felt aggrieved and eventually   appealed,   not  being   passed.    Under   the circumstances,  the appellant was entitled to the  exclusion of the entire time between the date of the pronouncement  of the  judgment and the date of signing of the decree, as  the ’time requisite for obtaining a copy of the decree’.   After such exclusion-avoiding double counting-his appeal filed  in the  court of the Additional Civil Judge on  12-2-1957,  was fully within time. Before  parting with this judgment we may mention  that  Mr. Goyal, learned Counsel for the respondents had also  pointed out  that  in view of the Explanation appended  to  the  re- enacted  s.  12 of the Limitation Act, 1963,  the  Allahabad view is the correct one and the contrary opinion held by the other High Courts is no longer good law.  In this connection he has cited Sitaram Dada Sawant v. Ramu Dada Sawant. (1) We would dispose of this contention on the short ground that in   the   present case  we  are   concerned   with   the interpretation of s. 12 as it stood in the Limitation Act of 1908.   We are not called upon to consider the  construction of  the new s. 12 of the Limitation Act, 1963.  No  part  of the  new  s.  12 has been given  retrospective  effect.   We therefore,  express  no  opinion  as  to  whether  the   law enunciated above Will hold good in cases governed by the new s. 12 of the 1963 Act. For the foregoing reasons, we set aside the judgment of  the High Court and allow this appeal with costs throughout.  The case  shall  now  go back to  the  Additional  Civil  Judge, Lucknow for disposal of the appeal in accordance with law. Appeal allowed. V.M.K. (1)..A.I.R. 1968 Bom. 204. 52