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PETITIONER: P.A. OOMMEN

       Vs.

RESPONDENT: MORAN MAR BASELIUS MARTHOMA

DATE OF JUDGMENT17/07/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAMASWAMY, K.

CITATION:  1992 AIR 1977            1992 SCR  (3) 548  1992 SCC  (3) 503        JT 1992 (4)   141  1992 SCALE  (2)40

ACT:      Limitatior, Act 1963 :      S.  12-Exclusion  of time taken in  obtaining  copy  of judgment  appealed from-Applicability of Order XLI  Rule  1- Suit tried alongwith another suit-Common judgment dismissing the suit-Appeal-Time taken in obtaining copy of judgment  by plaintiffs in one suit-Whether plaintiffs in the other  suit entitled to claim the benefit for purposes of limitation.      Code of Civil Procedure, 1908 :      Order  XLI Rule 1-Object and  applicability  of-Whether controls the provisions under the Limitation Act.

HEADNOTE:      The appellant and Respondents Nos. 6 and 9 filed a suit in  the District Court. The suit was transferred to  a  Sub- Judge,  who tried it along with another suit filed by  other plaintiffs.   By   a  common  judgment  he   dismissed   the transferred  suit as also the other suit. The plaintiffs  in the other suit applied for a certified copy of the  judgment and after obtaining the same filed an appeal before the High Court.  The plaintiffs in the transferred suit also  applied for  a certified copy of the judgment, but  the  application came to be dismissed for non-remittance of printing charges. However  they obtained a copy of decree and filed an  appeal before the High Court beyond the period of limitation.  Copy of the judgment of the Sub-Judge with the seal of the  Court was  also filed. It was explained that they were under  bona fide  belief that the copy of the judgment obtained  by  the plaintiffs  in the other suit could be made use of and  that it  was  not  necessary for them to  obtain  the  copies  of judgment  separately. It was pleaded that the time taken  in obtaining certified copies of judgment by the plaintiffs  in the  other suit should also be excluded in the case  of  the plaintiffs in the transferred suit. The High Court  rejected the application and consequently did not accept the  appeal. It  was held that the plaintiffs/appellants could  not  take advantage of the certified copy of the                                                        549 judgment obtained by another person. Being aggrieved against the   said   orders   of  the  High  Court,   one   of   the plaintiffs/appellants   preferred  the  present  appeal   by

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special leave.      On  behalf  of the appellants, it  was  contended  that since the plaintiffs in the other suit have already filed  a certified  copy of the judgment, the filing of the  same  by the  plaintiffs  in the transferred suit  should  have  been dispensed  with;  that the proviso to Order XLI Rule  1  CPC clearly  applied  to the case; that a memorandum  of  appeal need  not necessarily be accompanied by a certifed  copy  of the judgment obtained by the appellant himself; and that the copy  of the common judgment obtained by the  plaintiffs  in the  other  suit  could  be used by  the  plaintiffs  in the transferred suit and in this view of the matter, the  appeal filed was within time.      The  Respondents contended that the opposite party  has neither  filed any separate application for  condonation  of delay nor urged any ground in support of their claim  except stating  that they bonafide believed they could make use  of the  copy of common judgment obtained by the  plaintiffs  in the other suit.      Dismissing the appeal, this Court      HELD  1. The entire purpose of introducing the  proviso to  Order XLI Rule 1 CPC, was to avoid extra expenses  where more cases than one were disposed of by common judgment  and the  Appellate  Court was authorised to  dispense  with  the necessity  of filing more than one copy of the Judgment.  It was  no doubt made clear by adding the proviso to Order  XLI Rule  1 CPC that the filing of the certified copies  of  the judgment  could be dispensed with where two or more  appeals are filed against the common Judgment by the same  appellant or by different appellants. It only deals with the provision as  to what documents should be accompanied along  with  the memorandum of appeal. The provision has no relevance nor can control the  provisions of limitation  which  are  contained separately under the Limitation Act, 1963 [554-E,F]      2.  Admittedly the plaintiffs filed the  memorandum  of appeal  in  the High Court against the Judgment  and  decree passed  by the Subordinate Judge. The memorandum  of  appeal was accompanied by a certified copy of the decree as well as a printed copy of the common judgment. The appellant  cannot claim any benefit of the proviso to Order XLI Rule 1 CPC                                                        550 and  as a consequence thereof the benefit of the time  spent in  obtaining  the  certified copy of the  judgment  by  the plaintiffs  in  the  other suit.  The  proviso  permits  the Appellate Court to dispense with the filing of more than one copy  of the Judgment in order to save the expenses, but  in the present case the plaintiffs had already filed a  printed copy  of the judgment of the Subordinate Judge and  as  such there  was  no  question  of  seeking  any  order  from  the Appellate Court for dispensing with the filing of more  than one copy of the judgment. [554-G,H; 555-A,B]      3.  The appellant and respondents Nos. 6 to 9 who  were plaintiffs in the transferred suit had filed certified  copy of  the decree under challenge along with the memorandum  of appeal  and the time in obtaining the certified copy of  the decree can be excluded in computing the limitation and there is  no  dispute that such time has been  excluded  but  even after   excluding  such  time  the  appeal  was  barred   by limitation. So far as the printed copy of the judgment filed along with the memorandum of appeal, it did not contain  the necessary  particulars  regarding the person  who  made  the application, the date of application, the date of issue, the date  notified for receiving the same as required  in  Rules 253  and  254  of the Civil Rules of practice  in  order  to entitle  the  appellants to claim extension  of  time  under

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Section 12(3) of the Limitation Act, 1963. [555-C-F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1819 of 1992.      From  the  Judgment  and Order dated  9.2.1984  of  the Kerala High Court in C.M.P. No. 32544 of 1983.      E.M.S. Anam for the Appellant.      G.  Viswanatha Iyer, N. Sudhakaran and Ms.  K.prasanthi for the Respondent.      The Judgment of the Court was delivered by      KASLIWAl, J. A short but interesting question of law is involved in this appeal. The appellant and respondents  Nos. 6 to 9 field a suit in the District Court Alleppy which  was transferred  to the Court of Subordinate  Judge,  Mavelikara where  the suit was numbered as O.S. No. 105 of  1980.  This suit was jointly tried along with O.S. No. 21 of 1979  filed by  other  plaintiffs.  The Subordinate Judge  by  a  common Judgment dated 27.8.1982                                                        551 dismissed  both the suits. The plaintiffs in O.S. No. 21  of 1979 applied for certified copy of the Judgment on 27.8.1982 itself while the plaintiffs in O.S. No. 105 of 1980  applied for certified copy of the Judgment and decree on  28.8.1982. The  certified  copy of the Judgment was  delivered  to  the plaintiffs  in O.S. No. 21 of 1979 on 20th August, 1983  and they filed First Appeal No.504 of 1983 in the High Court  on 31.10.1983.  In  the case of the applications filed  by  the plaintiffs  in O.S. No. 105 of 1980 the office  called  upon them  to produce copying sheets for the decree and  printing charges  for the Judgment. Copying sheets were  produced  on 10.3.1983 but the printing charges for the Judgment were not remitted  and  as  such  the application  for  copy  of  the Judgment was dismissed on 17.3.1983. The copy of the  decree being  ready was notified for delivery on 22.3.1983 but  the same  was  actually taken on 10.6.1983.  The  appellant  and respondents  Nos. 6 to 9 filed appeal in the High  Court  on 5.11.1983  and along with the memo of appeal a printed  copy of  the Judgment with the seal of the Court was also  filed. There was no indication in the printed copy of the  Judgment as to on whose application the same was issued, or the  date of application of the date of production of printing charges or the date notified for receiving the same or when the same was delivered and other details necessary to be mentioned in a  certified copy as required under Rule 253 and 254 of  the Civil  Rules  of  Practice.  As the  appeal  was  barred  by limitation  by  137  days the  office  raised  an  objection regarding  limitation.  The Registry pointed out  some  more defects.  The  papers as such were returned for  curing  the defects.  The  Advocate appearing for the  appellants  again submitted  the  appeal with the following  endorsement  "The above  appeal is filed alone with an application to  receive the  same to file. The above application may be sent to  the Bench for orders. Other defects are cured". The  application referred to above was registered as C.M. No. 32544 of  1983. The  application was also supported by an affidavit. In  the affidavit  it was stated that the original suit No.  105  of 1980 was tried and heard along with O.S. No. 21 of 1979. The Learned Subordinate Judge passed a consolidated Judgment  in the  two suits. The printed copies of the Judgment  rendered in the case was  applied for by the plaintiffs in the  other connected  suit O.S. No. 21 of 1979, and so  the  appellants (plaintiffs  in  O.S. No. 105 of 1980) were led  to  believe

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that it would not be necessary to obtain the printed  copies of  the Judgment separately in O.S. No. 105 of 1980. It  was further  averred  in  the  affidavit  that  the   appellants bonafidely  though  that  the  copies  that  would  be  made available to the plaintiffs in O.S. No. 21 of 1979 could be                                                        552 made use of by the petitioners for preferring their  appeal. The  appellants in substance placed reliance on  Section  12 (3)  of  the Limitation Act, 1963 and argued that  the  time taken for obtaining the certified copies of the Judgment  by the plaintiffs in O.S. No. 21 of 1979 should also be allowed to be excluded in the case of the appellants as well.      Learned Single Judge of the High Court issued notice on the  application C.M.P. No. 32544 of 1983 and after  hearing the  other side dismissed the same. Learned Single Judge  by Judgment dated 9.2.1984 dismissed the CMP. No. 32544 of 1983 and consequently the appeal filed by the appellants was  not accepted  on the file of the High Court. The  Learned  Judge took  the  view that the plaintiffs/appellants  cannot  take advantage of the certified copy of the Judgment obtained  by another  person.  The  Learned  Judge  also  held  that   in calculating  the period of limitation the Court  can  reckon time only on the basis of the certified copy of the Judgment and  decree  produced  in the case.  Aggrieved  against  the aforesaid  Judgment of the High Court one of the  plaintiffs in  O.S.  No.  105 of 1980 has come in appeal  by  grant  of special leave.      In  order  to appreciate the controversy  it  would  be necessary to reproduce the relevant provisions of Order  XLI Rule 1 C.P.C. as well as the provisions of Section 12 of the Limitation Act.  SECTION 12 (2) & (3) OF THE LIMITATION ACT reads as under :      (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review  of  a  judgment,  the  day  on  which  the  judgment complained  of   was pronounced and the time  requisite  for obtaining a  copy of the degree, sentence or order  appealed from or sought to be revised or reviewed shall be excluded.      (3) Where a decree or order is appealed from or  sought to  be revised or reviewed, or 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 order is founded shall also be excluded.      O.XLI RULE 1 C.P.C. WITH PROVISO reads as under :      O.XLI : APPEALS FROM ORIGINAL DECREES :                                                        553      1. Form of appeal. What to accompany memorandum.      (1)  Every appeal shall be preferred in the form  of  a memorandum  signed  by  the appellant  or  his  pleader  and presented to the Court or to such officer as it appoints  in this  behalf. The memorandum shall be accompanied by a  copy of the decree appealed from and (unless the Appellate  Court dispenses therewith) of the judgment on which it is founded.      Provided  that where two or more suits have been  tried together and a common judgment has been delivered  therefore and  two  or  more appeals are  filed  against  any   decree covered by that judgment,  whether by the same appellant  or by  different appellants, the Appellate Court  may  dispense with the filing of more than one copy of the Judgment.      It has been argued on behalf of the appellant that  the High Court committed an error in not entertaining the appeal under  the proviso to Order XLI Rule 1 of the Code of  Civil Procedure. It was submitted that the High Court should  have accepted  and  admitted the appeal for hearing as  a  common Judgment  was delivered in O.S. No. 21 of 1979 and O.S.  No.

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105  of 1980 and the appeal filed by the plaintiffs in  case O.S.  No.  21 of 1979 having been admitted  the  High  Court should have dispensed with the filing of a certified copy of the Judgment by the plaintiffs in O.S. No. 105 of 1980.  The proviso  to Order XLI Rule 1 C.P.C. clearly applied  to  the case  of the appellant and the High Court was wrong  in  not applying  the same inspite of the specific prayer   made  in this  regard. It was further contended that a memorandum  of appeal  need  not  necessarily accompany  a  certified  copy obtained by the appellant himself. Thus the advantage of the printed  copy obtained by the plaintiffs in O.S. No.  21  of 1979  could be taken use of by the plaintiffs  in  O.S.  No. 105 of 1980 in filing an appeal and if the same is  allowed, the  appeal filed by the plaintiffs in O.S. No. 105 of  1980 was within time.      On  the other  hand Learned counsel appearing  for  the contesting  respondents placed reliance on the  Judgment  of the Learned Single Judge. It was submitted that neither  any separate application for condonation of delay was filed  nor any  ground was  made out in the affidavit filed by the  9th respondent who was  himself an Advocate of long standing, in support  of  the  C.M.P.  No. 32544 of  1983.  Only  a  bald statement  was  made in the affidavit that  they  bona  fide believed that the copies that would be made                                                        554 available  to the plaintiffs in O.S. No. 21 of 1979  on  the file  of Court of the Subordinate Judge, Mavelikara could be made use of for preferring the appeal. We  have  given our careful consideration to  the  arguments advanced  by  Learned  Counsel  for  the  parties  and  have thoroughly perused the record. The proviso to order XLI Rule 1  C.P.C. was added by Section 87 of C.P.C.  Amendment  Act, 1976  w.e.f. 1.2.1977. The statement of Objects and  Reasons for the above amendment are given as under :      OBJECTS AND REASONS      "Where two or more suits or appeals are disposed of  by a  common  Judgment, the requirement of Order XLI  that  the memorandum of appeal should be accompanied by a copy of  the judgment  occasions extra expenses. It is intended  to  meet with this difficulty by providing that where more cases than one  are disposed of by common judgment the appellate  court may  dispense with the necessity of filing of more than  one copy of the judgment."      Thus  the  entire  purpose  of  introducing  the  above provision was to avoid extra expenses where more cases  than one  were disposed of by common Judgment  and the  Appellate Court  was  authorised  to dispense with  the  necessity  of filing  more than one copy of the Judgment. It was no  doubt made clear by adding the proviso to Order XLI Rule 1  C.P.C. that  the  filing of the certified copies  of  the  Judgment could be dispensed with where two or more appeals are  filed against  the  common Judgment by the same  appellant  or  by different  appellants. The above Order XLI Rule 1  contained in the Code of Civil Procedure only deals with provision  as to  what  documents  should be accompanied  along  with  the memorandum of appeal. The provision has no relevance nor can control  the  provisions of limitation which  are  contained separately under the Limitation Act, 1963. Part (III) of the Limitation  Act, 1963 provides for computation of period  of limitation  and Section 12 deals with exclusion of  time  in legal proceedings with which we are concerned in the present case. So far as the case in hand before us is concerned, the admitted  facts are that the plaintiffs in O.S. No.  105  of 1980  filed  the  memorandum of appeal  in  the  High  Court against  the Judgment and decree passed by  the  Subordinate

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Judge  Mavalikar dated 27.8.1982. The memorandum  of  appeal was  accompanied by a  certified copy of the decree as  well as a  printed copy of the common                                                        555 Judgment.  We  are  at pains to understand  as  to  how  the appellant  can claims any benefit of the proviso  to  Order XLI Rule 1 C.P. and as a consequence thereof the benefit  of the  time  spent  in obtaining the  certified  copy  of  the Judgment  by  the  plaintiffs of O.S. No. 21  of  1979.  The proviso  permits  the Appellate Court to dispense  with  the filing  of  more than one copy of the Judgment in  order  to save the expenses, but in the present case the plaintiffs in O.S. No. 105 of 1980 had already filed a printed copy of the Judgment  of the Subordinate Judge and as such there was  no question of seeking any order from the Appellate Court (High Court in the present case) for dispensing with the filing of more  than one copy of the Judgment. The only question  then remains  to  be  considered is  whether  the  appellant  and respondents  Nos. 6 to 9 who were plaintiffs in O.S.No.  105 of  1980  had  filed  certified copy  of  the  decree  under challenge  along with the memorandum of appeal and the  time in  obtaining  the  certified copy of   the  decree  can  be excluded in computing the limitation and there is no dispute that  such time has been excluded but even  after  excluding such time the appeal is barred by limitation. So far as  the printed  copy of the Judgment filed with the  memorandum  of appeal  it  does  not  contain  the  necessary   particulars regarding  the person who made the application, the date  of application,  the  date  of issue,  the  date  notified  for receiving the same as required in Rules 253  and 254 of  the Civil  Rules of practice in order to entitle the  appellants to  claim  extension  of time under  Section  12(3)  of  the Limitation   Act.  Confronted  with  this  difficulty,   the appellant  and  other  plaintiffs in O.S. No.  105  of  1980 sought to rely on the proviso to Order XLI Rule 1 C.P.C. and to g et the advantage of the time taken by the plaintiffs in O.S. No. 21 of 1979  in obtaining the certified copy of  the common Judgment. We are clearly of the view that there is no justification  nor any basis for claiming such  benefit  and the High Court rightly dismissed the CMP. NO. 32544 of 1983. It is, however made clear that we are upholding the Judgment of  the  High  Court on different grounds  and  we  are  not expressing any opinion on the merits of the questions of law decided by the Learned Single Judge. We also do not find  it necessary to advert to any case law referred in the Judgment of  the High Court or cited before us, as in the  facts  and circumstances of the case there is no basis or justification at  all  for the applicability of the proviso to  Order  XLI Rule  1  C.P.C. itself. Thus when the main  bedrock  of  the entire case of the plaintiffs appellants of O.S. No. 105  of 1980 falls to the ground the question of                                                        556 seeking any benefit, therefore, does nor arise.      In  the result we find no force in this appeal and  the same is dismissed with no order as to costs. G.N.                                       Appeal dismissed.                                                        557