Report No. 89
Section 12: Exclusion of Time in Legal Proceedings
12.1. Section 12.- With section 12 begins a set of provisions dealing with the computation of periods of limitation. Assuming that the Indian law of limitation applies to the case, attention has also to be paid to the arithmetic of the matter. In section 12, one finds two sets of provisio.-one general, the other of a more limited application. The first set of provisions provides for excluding the first d.-the day from which the period is to be reckoned.
The second set of provisions provides for excluding, in computing the period of limitation, the time requisite for obtaining certain copies. The second set of provisions is confined to appeals and certain applications, while the first set applies to all suits, appeals and applications. The two sets have nothing common to them and it is only the accidents of legislation that have brought them together.
12.2. The principle underlying exclusion of the first day.- The first set of provisions is to be found in section 12(1) and in the earlier part of section 12(2). Section 12(1) provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
On the same analogy, the earlier part of section 12(2) provides that 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, shall be excluded. Broadly stated, the principle here is that the date of accrual of the cause of action is to be excluded.1
Provisions for excluding the first day are contained in the General Clauses Act2 and the Transfer of Property Act3 also. This is more a rule of convenience that a rule based on any fundamental principle of justice.
1. Cf. Ganapati v. Sitharama, 1886 ILR 10 Mad 292.
2. Section 9, General Clauses Act, 1897.
3. Section 1.-Transfer of Property Act, 1882.
12.3. Principle underlying sections 12(2), 12(3) and 12(.-exclusion of time requisite for obtaining to copies.- The second set of provisions deals with the time requisite for obtaining copies of judgments, decrees, sentences, orders and awards, where an appeal or an application of the specified category is to be filed. These are contained in section 12(2), latter half and sections 12(2)(3) and 12(4).
The Explanation to the section (which has provoked some controversy, to be mentioned later1) reads as under:
"Explanation.- In computing under this section the time requisite for obtaining a copy of a decree or order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."
The principle underlying the set of provisions for the exclusion of "time requisite" in obtaining copies of judicial determinations is two-fold. In the first place, before a litigant aggrieved by the decision of a court or arbitrator pursues a remedy by way of appeal or application in order to contest the legality, propriety or correctness of such decision, it is proper that he should have knowledge of its full contents.2 Secondly, in some cases, the law requires that the appeal or application must be accompanied by a copy of such decision3.
1. See discussion relating to section 12 explanation, infra.
2. Cf. Surty v. Chettyar, (1928) 55 IA 161 (170) (PC).
3. Order 41, rule 1, C.P.C. is one example.
12.4. Law Commission Report.- The Law Commission, in its Report on the Act of 1908, while commenting1 on section 12 of the Act, observed as unde.-
"Some courts have taken the view that the delay in drafting the decree before an application for a copy is made should be deducted as 'time requisite'. But we think that a delay of the office before the application for a copy is made should not count in favour of the party. A suitable provision should be added to make this clear."
The Commission also recommended a draft of an Explanation to be added at the end of section 12 for achieving the above object:
"Explanation.- Any time taken by the Court to prepare the decree or order before an application for copy thereof is filed shall not be regarded as time requisite for obtaining the copy within the meaning of this section."
1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 37.
12.5. Even though the recommendation of the Commission was accepted in principle, the Explanation that was enacted has used the expression "shall not be excluded" instead of the wording suggested by the Commission "shall not be regarded as time requisite". The Explanation emerged as follows in the Act as passed in 1963:
"Explanation.- In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."
12.6. Case law regarding the newly added explanation.- Difficulties of interpretation arose under the newly added Explanation to section 12. In a full Bench decision of the Bombay High Court1, it was observe.-
"On the plain and grammatical construction of the Explanation to section 12(2) of the Act the intention of the Legislature is clear namely, that while computing the time requisite for obtaining a copy of decree any time taken by the court for preparation of the decree before an application for a copy thereof is made is not to be excluded, that is to say, such period will have to be included in computing the time requisite for obtaining copy."
Earlier, a full Bench of Patna High Court2 had taken notice of the rationale underlying the recommendations of the Law Commission, but concluded that the text of the Explanation said just the opposit.-
"I am aware that the Law Commission, while recommending the recast of the old Limitation Act, stated that in their view, the period taken by the court for preparing the decree before an application for a copy is made, should not be counted in favour of the applicant. One of the objects and reasons given in the bill was that any delay in the office of the court in drawing up a decree or order before the application for a copy thereof is made, shall not be excluded. The recommendation of the Law Commission or the objects and reasons stated in the bill cannot alter the clear and unambiguous meaning of the actual enactment that the parliament passed.
1. Subhash v. Maroti, AIR 1975 Born 244 (FB).
2. State of Bihar v. Md. Ismail, AIR 1966 Pat 1 (FB).