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
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]
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
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.
557