State of Uttar Pradesh v. Maharaj Narain, AIR 1968 SC 960

Introduction

This case deals with the Section 12(2) of the Limitation Act, 1908 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.

Facts

• In this case the respondents were tried for the 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 and the correctness of that decision is at issue in this appeal.
• The memorandum of appeal was filed in court on March 29, 1963. The order appealed from had been delivered on November 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.

Issues Involved

Whether the appeal was barred under the Limitation Act, 1908?

Observations

• The Court observed that it was not necessary for the appellant to apply for a copy of the order appealed immediately after the order was pronounced.
• The appellant could have, if it chose to take the risk, waited till the ninety-day period allowed to it by statute was almost exhausted.
• Even then the time required for obtaining 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 necessary for obtaining the copy of the order.
• The court said as far as the Section 12(2) is concerned it enlarges the period of limitation prescribed under Entry 157 of Schedule I. 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.
• The Court further observed that every time an appeal is filed, the court not only will have to see 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
• While stating the case J. N. Surty v. T. S. Chettyar 55 I.A. 161, the Court stated, 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 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.
• The Court said that the word 'requisite' is a strong word; it may be regarded as meaning something more than the 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.
• The leading case on the subject is the decision of the full bench of the Madras High Court in Panjam v. Trimala Reddy I.L.R. 57 Mad. 560, wherein the court laid down that in Section 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.

Conclusion

The Court concluded that appeal referred by State is being dismissed being barred by limitation.

Notes

Limitation Act, 1963

Section 12 (2) provides that in computing period of limitation for appeal day on which judgment complained of pronounced and time requisite for obtaining copy of Order appealed from shall be excluded. Hence, the appeal was dismissed.