P.A. Oommen
Vs. Moran Mar Baselius Marthoma [1992] INSC 170 (17 July 1992)
Kasliwal, N.M. (J) 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.
HEAD NOTE:
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 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 Section 12(3) of the Limitation Act, 1963. [555-C-F]
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 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. 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 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.
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