http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: MAHARAJ NARAIN AND OTHERS

DATE OF JUDGMENT: 30/01/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. HIDAYATULLAH, M.

CITATION:  1968 AIR  960            1968 SCR  (2) 842  CITATOR INFO :  R          1977 SC 523  (13)

ACT: Limitation   Act,  1908,  s.  12(2)-"time   requisite"   for obtaining copy of order appealed from-meaning of.

HEADNOTE: The  appellant  State filed an appeal in the High  Court  on March 29, 1963 against the order made by the trial court  on November 10, 1962 acquitting the respondents.  According  to the information contained in the copy of the order  produced along  with the Memorandum of Appeal, the appeal  was  filed within  time.   It Showed that the copy was applied  for  on November  15, 1962 and it was ready on January 3, 1963.   It was  contended on behalf of the respondents that the  appeal was  out of time in view of the fact that the appellant  had applied  for  and  obtained two other copies  of  the  order appealed  from  and if time was calculated on the  basis  of those copies the appeal was beyond time.  In addition to the copy  referred  to earlier, the appellant  had  applied  for another copy of the order appealed from on December 3, 1962, and  that copy was ready for delivery on December 20,  1962. The appellant also applied for yet another copy of the  same order  on December 21, 1962 and that copy was made ready  on the  same day.  It was not disputed that if the,  period  of limitation  was  computed  on the basis  of  the  two  later copies, the appeal was barred by limitation.  The High Court accepted  the  respondent’s  contention  and  dismissed  the appeal. On appeal to this Court. HELD : That the decision of the High Court under appeal  did not lay down the law correctly. The   expression  ’time  requisite’  in  s.  12(2)  of   the Limitation  Act cannot be understood as the time  absolutely necessary  for  obtaining the copy of the  order.   What  is deductible  under  s. 12(2) is not the minimum  time  within which  a copy of the order appealed against could have  been obtained.  It must be remembered that s. 12(2) enlarges  the period of limitation prescribed under entry 157 of  Schedule 1.  That  section permits the appellant to deduct  from  the time  taken  for filing the appeal, the  time  required  for obtaining  the copy of the order appealed from and  not  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

lesser  period  which  might  have  been  occupied  if   the application  for  copy had been filed at  some  other  date. That  section  lays  no obligation on the  appellant  to  be prompt in his application for a copy of the order.  A  plain reading  of s. 12(2) shows that in computing the  period  of limitation  prescribed for an appeal, the day on  which  the judgment or order complained of was pronounced and the  time taken  by the court to make available the copy applied  for. have  to  be  excluded.   There  is  no  justification   for restricting the scope of that provision. [844 E-H] Mathela. and others v. Sher Mohammad, A.I.R. 1935, Lah. 682; disapproved. Pramatha Nath Roy V. Lee, 49 I.A. 307 and J. N. Surty v.  T. S. Chettyar, 55 I.A. 161; distinguished. 84 3 Panjam  v. Trimala Reddy, I.L.R. 57 Mad. 560; Kunju  Kesavan v.  M.M. Philip, A.I.R. 1953 T.C. 552; B. Govind  Rai  Sewak Singh and Anr. v.   Behuti Narain Singh.  A.I.R. 1950,  All. 486  and K. U. Singh v. M. R.Kachhi, A.I.R. 1960  M.P.  140; referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.122  of 1965. Appeal from the judgment and order dated December 1, 1964 of the  Allahabad  High Court in Government  Appeal  No.785  of 1963. 0.   P. Rana, for the appellant. J.   P. Goyal and Sobhag Mal Jain, for the respondents. The Judgment of the Court was delivered by Hegde,  J. In this appeal by certificate, the only  question that  arises  for decision is as to the true  scope  of  the expression  "time  requisite  for obtaining a  copy  of  the decree,  sentence or order appealed from" found in sub-s.  2 of  s.  12 of the Indian Limitation Act 1908 which  wilt  be hereinafter referred to as the Act.  The said question arose for   decision  under  the  following   circumstances:   The respondents  were  tried  for various  offences  before  the learned  assistant  sessions judge, Farrukhabad.   The  said learned   judge  acquitted  them.   Against  the  order   of acquittal  the State went up in appeal to the High Court  of Allahabad.  The said appeal was dismissed as being barred by limitation.  The correctness of that decision is in issue in this appeal. Item  157 of the first schedule to the Act  prescribes  that the  period  of limitation for an appeal under the  Code  of Criminal Procedure 1898, from an order of acuittal is  three months from the date of the order appealed from.  But sub-s. 2  of  S.  12  provides that  in  computing  the  period  of limitation  prescribed  for an appeal the day on  which  the judgment complained of was pronounced and the time requisite for  obtaining  a copy of the order appealed from  shall  be excluded. The  memorandum of appeal was filed into court on March  29, 1963.  The order appealed from bad been delivered on  Novem- ber 10, 1962.  According to the information contained in the copy  of the order produced along with the  said  memorandum the  appeal was within time.  It showed that that copy  was, applied  for on November 15, 1962 and the same was ready  on January 3, 1963. It  was  contended  on behalf of the  respondents  that  the appeal  was  out  of  time in view  of  the  fact  that  the appellant  had applied for and obtained two other copies  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

the  order  appealed from and if time is calculated  on  the basis  of  those  copies the appeal  was  beyond  time.   In addition to the copy referred to earlier, the 844 appellant had applied for another copy of the order appealed from  on  December  3,  1962 and that  copy  was  ready  for delivery  on December 20, 1962.  The appellant also  applied for yet another copy of the same order on December 21,  1962 and  that copy was made ready on the same day.  There is  no dispute that if the period of limitation is computed on  the basis  of those copies the appeal was barred by  limitation. But the point for consideration is whether the obtaining  of those  copies has any relevance in the matter  of  computing the period of limitation for the appeal. The  High Court of Allahabad accepted the contention of  the respondents  that  in  determining the  time  requisite  for obtaining a copy of the order appealed from, it had to  take into  consideration  the  copies  made  available  to,   the appellant  on the 20th and 21st December, 1962.   It  opined that  the  expression ’requisite’ found in  s.  12(2)  means "properly  required",  and hence the limitation  has  to  be computed  on  the basis of the copy made  available  to  the appellant in December, 1962. It was not disputed on behalf of the respondents that it was not  necessary for the appellant to apply for a copy of  the order   appealed  from  immediately  after  the  order   was pronounced.   The appellant could have, if it chose to  take the  risk, waited till the ninety days period allowed to  it by  the  statute was almost exhausted.  Even then  the  time required  for obaining a copy of the order would  have  been deducted in calculating the period of limitation for  filing the appeal.  Hence the expression ’time requisite’ cannot be understood  as the time absolutely necessary for  obtaining- the copy of the order.  What is deductible under s. 12(2) is not  the  minimum  time within which a  copy  of  the  order appealed  against  could have been obtained.   It  must  be, remembered  that  sub-s. 2 of s. 12 enlarges the  period  of limitation  prescribed under entry 157 of Schedule  1.  That section permits the appellant to deduct from the time  taken for  filing the appeal, the time required for obtaining  the copy  of the order appealed from and not any  lesser  period which  might have been occupied if the application for  copy had  been  filed at some other date.  That section  lays  no obligation on the appellant to be prompt in his  application for a copy of the order.  A plain reading of s. 12(2)  shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was  pronounced  and  the time taken by the  court  to  make available the copy applied for, have to be excluded.   There is  no  justification  for restricting  the  scope  of  that provision. If  the appellate courts are required to find out  in  every appeal  filed  before  them the minimum  time  required  for obtaining  a  copy of the order appealed from, it  would  be unworkable.   In that event every time an appeal  is  filed, the court not only will have to see 84 5 whether  the  appeal  is  in  time  on  the  basis  of   the information available from the copy of the order filed along with  the  memorandum of appeal but it must go  further  and hold  an  enquiry  whether  any other  copy  had  been  made available to the appellant and if so what was the time taken by  the court to make available that copy.  This would  lead to a great deal of confusion and enquiries into the  alleged laches  or  dilatoriness in respect not of  copies  produced

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

with  the memorandum of appeal but about other copies  which he might have got and used for other purposes with which the court has nothing to do. The  High Court in arriving at the decision that the  appeal is barred by time relied on the decision of the Lahore  High Court  in Mathela and Others v. Sher Mohammad(1).   It  also sought support from the decisions of the Judicial  Committee in  Pramatha  Nath Roy v. Lee(-) and J. N. Surty  v.  T.  S. Chettyar(3).   The Lahore decision undoubtedly supports  the view  taken by the High Court.  It lays down that the  words "time requisite" mean simply time required by the  appellant to  obtain a copy of the decree assuming that he acted  with the  reasonable promptitude and diligence.  It further  lays down  that  the time requisite for obtaining a copy  is  the shortest time during which the copy would have been obtained by  the appellant, and it has nothing to do with the  amount of time spent by him in obtaining the copy which he  chooses to tile with the memorandum of appeal.  With respect to  the learned judges who decided that case we are unable to  spell out  from the language of s. 12(2) the requirement that  the appellant   should  act  with  reasonable  promptitude   and diligence and the further condition that the time  requisite for  obtaining  a copy should be the  shortest  time  during which a copy could have been obtained by the appellant.   We are of the opinion that the said decision does not lay  down the law correctly. Now  we  shall  proceed to consider  the  decisions  of  the Judicial  Committee  relied  on  ’by  the  High  Court.   In Pramatha  Nath Roy v. Lee (2) the appellant was found to  be guilty  of laches.  The Judicial Committee held that he  was not entitled to deduct the time lost due to his laches.   It is  in that context the Board observed that the  time  which need not have elapsed if the appellant had taken  reasonable and  proper  steps to obtain a copy of the decree  or  order could  not be regarded as ’requisite’ within sub-s. 2 of  s. 12.   That  decision  does not bear on  the  question  under consideration. In  J. N. Surty v. T. S. Chettyar 3 the question  that  fell for  decision  by  the Judicial  Committee  was  whether  in reckoning  the  time  for presenting  an  appeal,  the  time required for obtaining (1) A.I.R. 1935 Lah. 682. L3Sup.CI/68-10 (3) 55 [.A. 161.    (2) 49 I.A. 3 7. 846 a  copy  of  the decree or judgment must  be  excluded  even though  by  the rules of the court it was not  necessary  to produce with the memorandum of appeal the copy of the decree or judgment.  Their Lordships answered that question in  the affirmative.  While deciding that question, their  Lordships considered  some of the observations made by the High  Court relating  to the dilatoriness of some Indian  practitioners. In that context they observed               "There  is force no doubt in  the  observation               made in the High Court that the elimination of               the  requirement  to  obtain  copies  of   the               documents was part of an effort to combat  the               dilatoriness of some Indian practitioner;  and               their   Lordships   would  be   unwilling   to               discourage  any  such effort.   All,  however,               that  can be done, as the law stands,  is  for               the  High Courts to be strict in applying  the               provision of exclusion.               The word ’requisite’ is a strong word; it  may               be regarded as meaning something more than the

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

             word   ‘   required’.   It   means   ’properly               required’  and it throws upon the  pleader  or               counsel  for  the appellant the  necessity  of               showing  that no part of the delay beyond  the               prescribed period is due to his fault." In other words, what their Lordships said was that any delay due to the default of the pleader of the appellant cannot be deducted.  There  can  be  no question  of  any  default  if the steps taken by the appellant are in accordance with law. Hence,  the  above  quoted  observations  of  the   Judicial Committee  can  have  no  application  to  the  point  under consideraion. Preponderance  of judicial opinion is in favour of the  con- clusion  reached  by us earlier.  The leading  case  on  the subject is the decision of the full bench of the Madras High Court  in Panjamv. Trimala Reddy(1), wherein the court  laid down that in s. 12 the words ’time requisite for obtaining a copy of the decree’ mean the time beyond the party’s control occupied  in  obtaining  the copy which is  filed  with  the memorandum  of appeal and not an ideal lesser  period  which might have been occupied if the application for the copy had been  filed on some other date.  This decision was  followed by  the Travancore-Cochin High Court in Kunju Kesavan v.  M. M.  Philip(2), by the Allahabad High Court in B. Govind  Rai Sewak Singh and Another v. Behuti Narain Singh(3) and by the Madhya  Pradesh  High Court in K. U. Singh v. M.  R.  Kachhi (4) . From the above discussion it follows that the decision under appeal does not lay down the law correctly.  But yet we  are of (1)  I.L.R. 57 Mad. 560. (3)  A.I.R. 1950 All. 486. (2) A.I.R. 1953 T.C. 552. (4) A.I.R. 1960 M.P. 140. 847 the  opinion that this is not a fit case to  interfere  with the  order  of the High Court dismissing  the  appeal.   The respondents were acquitted by the assistant sessions  judge, Farrukhabad  on  November  10, 1962.  We  were  informed  by learned  counsel for the State that this appeal was  brought to  this  court mainly with a view to  settle  an  important question  of  law,  and under instructions  from  the  State government  he told us that he does not press the appeal  on merits.  Accordingly this appeal is dismissed. R.K.P.S.                                              Appeal dismissed. 848