{"id":174999,"date":"1992-07-17T00:00:00","date_gmt":"1992-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-a-oommen-vs-moran-mar-baselius-marthoma-on-17-july-1992"},"modified":"2017-04-21T02:10:05","modified_gmt":"2017-04-20T20:40:05","slug":"p-a-oommen-vs-moran-mar-baselius-marthoma-on-17-july-1992","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-a-oommen-vs-moran-mar-baselius-marthoma-on-17-july-1992","title":{"rendered":"P.A. Oommen vs Moran Mar Baselius Marthoma on 17 July, 1992"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P.A. Oommen vs Moran Mar Baselius Marthoma on 17 July, 1992<\/div>\n
Equivalent citations: 1992 AIR 1977, \t\t 1992 SCR (3) 548<\/div>\n
Author: N Kasliwal<\/div>\n
Bench: Kasliwal, N.M. (J)<\/div>\n
           PETITIONER:\nP.A. OOMMEN\n\n\tVs.\n\nRESPONDENT:\nMORAN MAR BASELIUS MARTHOMA\n\nDATE OF JUDGMENT17\/07\/1992\n\nBENCH:\nKASLIWAL, N.M. (J)\nBENCH:\nKASLIWAL, N.M. (J)\nRAMASWAMY, K.\n\nCITATION:\n 1992 AIR 1977\t\t  1992 SCR  (3) 548\n 1992 SCC  (3) 503\t  JT 1992 (4)\t141\n 1992 SCALE  (2)40\n\n\nACT:\n     Limitatior, Act 1963 :\n     S.\t 12-Exclusion  of time taken in\t obtaining  copy  of\njudgment  appealed from-Applicability of Order XLI  Rule  1-\nSuit tried alongwith another suit-Common judgment dismissing\nthe suit-Appeal-Time taken in obtaining copy of judgment  by\nplaintiffs in one suit-Whether plaintiffs in the other\tsuit\nentitled to claim the benefit for purposes of limitation.\n     Code of Civil Procedure, 1908 :\n     Order  XLI Rule 1-Object and  applicability  of-Whether\ncontrols the provisions under the Limitation Act.\n\n\n\nHEADNOTE:\n     The appellant and Respondents Nos. 6 and 9 filed a suit\nin  the District Court. The suit was transferred to  a\tSub-\nJudge,\twho tried it along with another suit filed by  other\nplaintiffs.   By   a  common  judgment\the   dismissed\t the\ntransferred  suit as also the other suit. The plaintiffs  in\nthe other suit applied for a certified copy of the  judgment\nand after obtaining the same filed an appeal before the High\nCourt.\tThe plaintiffs in the transferred suit also  applied\nfor  a certified copy of the judgment, but  the\t application\ncame to be dismissed for non-remittance of printing charges.\nHowever\t they obtained a copy of decree and filed an  appeal\nbefore the High Court beyond the period of limitation.\tCopy\nof the judgment of the Sub-Judge with the seal of the  Court\nwas  also filed. It was explained that they were under\tbona\nfide  belief that the copy of the judgment obtained  by\t the\nplaintiffs  in the other suit could be made use of and\tthat\nit  was\t not  necessary for them to  obtain  the  copies  of\njudgment  separately. It was pleaded that the time taken  in\nobtaining certified copies of judgment by the plaintiffs  in\nthe  other suit should also be excluded in the case  of\t the\nplaintiffs in the transferred suit. The High Court  rejected\nthe application and consequently did not accept the  appeal.\nIt  was held that the plaintiffs\/appellants could  not\ttake\nadvantage of the certified copy of the\n\t\t\t\t\t\t       549\njudgment obtained by another person. Being aggrieved against\nthe   said   orders   of  the  High  Court,   one   of\t the\nplaintiffs\/appellants\tpreferred  the\tpresent\t appeal\t  by\nspecial leave.\n     On\t behalf\t of the appellants, it\twas  contended\tthat\nsince the plaintiffs in the other suit have already filed  a\ncertified  copy of the judgment, the filing of the  same  by\nthe  plaintiffs\t in the transferred suit  should  have\tbeen\ndispensed  with;  that the proviso to Order XLI Rule  1\t CPC\nclearly\t applied  to the case; that a memorandum  of  appeal\nneed  not necessarily be accompanied by a certifed  copy  of\nthe judgment obtained by the appellant himself; and that the\ncopy  of the common judgment obtained by the  plaintiffs  in\nthe  other  suit  could\t be used by  the  plaintiffs  in the\ntransferred suit and in this view of the matter, the  appeal\nfiled was within time.\n     The  Respondents contended that the opposite party\t has\nneither\t filed any separate application for  condonation  of\ndelay nor urged any ground in support of their claim  except\nstating\t that they bonafide believed they could make use  of\nthe  copy of common judgment obtained by the  plaintiffs  in\nthe other suit.\n     Dismissing the appeal, this Court\n     HELD  1. The entire purpose of introducing the  proviso\nto  Order XLI Rule 1 CPC, was to avoid extra expenses  where\nmore cases than one were disposed of by common judgment\t and\nthe  Appellate\tCourt was authorised to\t dispense  with\t the\nnecessity  of filing more than one copy of the Judgment.  It\nwas  no doubt made clear by adding the proviso to Order\t XLI\nRule  1 CPC that the filing of the certified copies  of\t the\njudgment  could be dispensed with where two or more  appeals\nare filed against the common Judgment by the same  appellant\nor by different appellants. It only deals with the provision\nas  to what documents should be accompanied along  with\t the\nmemorandum of appeal. The provision has no relevance nor can\ncontrol the  provisions of limitation  which  are  contained\nseparately under the Limitation Act, 1963 [554-E,F]\n     2.\t Admittedly the plaintiffs filed the  memorandum  of\nappeal\tin  the High Court against the Judgment\t and  decree\npassed\tby the Subordinate Judge. The memorandum  of  appeal\nwas accompanied by a certified copy of the decree as well as\na printed copy of the common judgment. The appellant  cannot\nclaim any benefit of the proviso to Order XLI Rule 1 CPC\n\t\t\t\t\t\t       550\nand  as a consequence thereof the benefit of the time  spent\nin  obtaining  the  certified copy of the  judgment  by\t the\nplaintiffs  in\tthe  other suit.  The  proviso\tpermits\t the\nAppellate Court to dispense with the filing of more than one\ncopy  of the Judgment in order to save the expenses, but  in\nthe present case the plaintiffs had already filed a  printed\ncopy  of the judgment of the Subordinate Judge and  as\tsuch\nthere  was  no\tquestion  of  seeking  any  order  from\t the\nAppellate Court for dispensing with the filing of more\tthan\none copy of the judgment. [554-G,H; 555-A,B]\n     3.\t The appellant and respondents Nos. 6 to 9 who\twere\nplaintiffs in the transferred suit had filed certified\tcopy\nof  the decree under challenge along with the memorandum  of\nappeal\tand the time in obtaining the certified copy of\t the\ndecree can be excluded in computing the limitation and there\nis  no\tdispute that such time has been\t excluded  but\teven\nafter\texcluding  such\t time  the  appeal  was\t barred\t  by\nlimitation. So far as the printed copy of the judgment filed\nalong with the memorandum of appeal, it did not contain\t the\nnecessary  particulars\tregarding the person  who  made\t the\napplication, the date of application, the date of issue, the\ndate  notified for receiving the same as required  in  Rules\n253  and  254  of the Civil Rules of practice  in  order  to\nentitle\t the  appellants to claim extension  of\t time  under\nSection 12(3) of the Limitation Act, 1963. [555-C-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1819 of
\n1992.\n<\/p>\n
     From  the\tJudgment  and Order dated  9.2.1984  of\t the
\nKerala High Court in C.M.P. No. 32544 of 1983.\n<\/p>\n
     E.M.S. Anam for the Appellant.\n<\/p>\n
     G.\t Viswanatha Iyer, N. Sudhakaran and Ms.\t K.prasanthi
\nfor the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KASLIWAl, J. A short but interesting question of law is
\ninvolved in this appeal. The appellant and respondents\tNos.
\n6 to 9 field a suit in the District Court Alleppy which\t was
\ntransferred  to the Court of Subordinate  Judge,  Mavelikara
\nwhere  the suit was numbered as O.S. No. 105 of\t 1980.\tThis
\nsuit was jointly tried along with O.S. No. 21 of 1979  filed
\nby  other  plaintiffs.\tThe Subordinate Judge  by  a  common
\nJudgment dated 27.8.1982
\n\t\t\t\t\t\t       551<\/span>
\ndismissed  both the suits. The plaintiffs in O.S. No. 21  of
\n1979 applied for certified copy of the Judgment on 27.8.1982
\nitself while the plaintiffs in O.S. No. 105 of 1980  applied
\nfor certified copy of the Judgment and decree on  28.8.1982.
\nThe  certified\tcopy of the Judgment was  delivered  to\t the
\nplaintiffs  in O.S. No. 21 of 1979 on 20th August, 1983\t and
\nthey filed First Appeal No.504 of 1983 in the High Court  on
\n31.10.1983.  In\t the case of the applications filed  by\t the
\nplaintiffs  in O.S. No. 105 of 1980 the office\tcalled\tupon
\nthem  to produce copying sheets for the decree and  printing
\ncharges\t for the Judgment. Copying sheets were\tproduced  on
\n10.3.1983 but the printing charges for the Judgment were not
\nremitted  and  as  such\t the application  for  copy  of\t the
\nJudgment was dismissed on 17.3.1983. The copy of the  decree
\nbeing  ready was notified for delivery on 22.3.1983 but\t the
\nsame  was  actually taken on 10.6.1983.\t The  appellant\t and
\nrespondents  Nos. 6 to 9 filed appeal in the High  Court  on
\n5.11.1983  and along with the memo of appeal a printed\tcopy
\nof  the Judgment with the seal of the Court was also  filed.
\nThere was no indication in the printed copy of the  Judgment
\nas to on whose application the same was issued, or the\tdate
\nof application of the date of production of printing charges
\nor the date notified for receiving the same or when the same
\nwas delivered and other details necessary to be mentioned in
\na  certified copy as required under Rule 253 and 254 of\t the
\nCivil  Rules  of  Practice.  As the  appeal  was  barred  by
\nlimitation  by\t137  days the  office  raised  an  objection
\nregarding  limitation.\tThe Registry pointed out  some\tmore
\ndefects.  The  papers as such were returned for\t curing\t the
\ndefects.  The  Advocate appearing for the  appellants  again
\nsubmitted  the\tappeal with the following  endorsement\t“The
\nabove  appeal is filed alone with an application to  receive
\nthe  same to file. The above application may be sent to\t the
\nBench for orders. Other defects are cured”. The\t application
\nreferred to above was registered as C.M. No. 32544 of  1983.
\nThe  application was also supported by an affidavit. In\t the
\naffidavit  it was stated that the original suit No.  105  of
\n1980 was tried and heard along with O.S. No. 21 of 1979. The
\nLearned Subordinate Judge passed a consolidated Judgment  in
\nthe  two suits. The printed copies of the Judgment  rendered
\nin the case was\t applied for by the plaintiffs in the  other
\nconnected  suit O.S. No. 21 of 1979, and so  the  appellants
\n(plaintiffs  in\t O.S. No. 105 of 1980) were led\t to  believe
\nthat it would not be necessary to obtain the printed  copies
\nof  the Judgment separately in O.S. No. 105 of 1980. It\t was
\nfurther\t averred  in  the  affidavit  that  the\t  appellants
\nbonafidely  though  that  the  copies  that  would  be\tmade
\navailable to the plaintiffs in O.S. No. 21 of 1979 could be
\n\t\t\t\t\t\t       552<\/span>
\nmade use of by the petitioners for preferring their  appeal.
\nThe  appellants in substance placed reliance on\t Section  12
\n(3)  of\t the Limitation Act, 1963 and argued that  the\ttime
\ntaken for obtaining the certified copies of the Judgment  by
\nthe plaintiffs in O.S. No. 21 of 1979 should also be allowed
\nto be excluded in the case of the appellants as well.\n<\/p>\n
     Learned Single Judge of the High Court issued notice on
\nthe  application C.M.P. No. 32544 of 1983 and after  hearing
\nthe  other side dismissed the same. Learned Single Judge  by
\nJudgment dated 9.2.1984 dismissed the CMP. No. 32544 of 1983
\nand consequently the appeal filed by the appellants was\t not
\naccepted  on the file of the High Court. The  Learned  Judge
\ntook  the  view that the plaintiffs\/appellants\tcannot\ttake
\nadvantage of the certified copy of the Judgment obtained  by
\nanother\t person.  The  Learned\tJudge  also  held  that\t  in
\ncalculating  the period of limitation the Court\t can  reckon
\ntime only on the basis of the certified copy of the Judgment
\nand  decree  produced  in the case.  Aggrieved\tagainst\t the
\naforesaid  Judgment of the High Court one of the  plaintiffs
\nin  O.S.  No.  105 of 1980 has come in appeal  by  grant  of
\nspecial leave.\n<\/p>\n
     In\t order\tto appreciate the controversy  it  would  be
\nnecessary to reproduce the relevant provisions of Order\t XLI
\nRule 1 C.P.C. as well as the provisions of Section 12 of the
\nLimitation Act.\n<\/p>\n
 SECTION 12 (2) & (3) OF THE LIMITATION ACT reads as under :\n<\/p>\n
     (2) In computing the period of limitation for an appeal
\nor an application for leave to appeal or for revision or for
\nreview\tof  a  judgment,  the  day  on\twhich  the  judgment
\ncomplained  of\t was pronounced and the time  requisite\t for
\nobtaining a  copy of the degree, sentence or order  appealed
\nfrom or sought to be revised or reviewed shall be excluded.\n<\/p>\n
     (3) Where a decree or order is appealed from or  sought
\nto  be revised or reviewed, or where an application is\tmade
\nfor  leave  to\tappeal\tfrom a decree  or  order,  the\ttime
\nrequisite for obtaining a copy of the judgment on which\t the
\ndecree or order is founded shall also be excluded.\n<\/p>\n
     O.XLI RULE 1 C.P.C. WITH PROVISO reads as under :
\n     O.XLI : APPEALS FROM ORIGINAL DECREES :\n<\/p>\n
\t\t\t\t\t\t       553<\/span><\/p>\n
     1. Form of appeal. What to accompany memorandum.
\n     (1)  Every appeal shall be preferred in the form  of  a
\nmemorandum  signed  by\tthe appellant  or  his\tpleader\t and
\npresented to the Court or to such officer as it appoints  in
\nthis  behalf. The memorandum shall be accompanied by a\tcopy
\nof the decree appealed from and (unless the Appellate  Court
\ndispenses therewith) of the judgment on which it is founded.\n<\/p>\n
     Provided  that where two or more suits have been  tried
\ntogether and a common judgment has been delivered  therefore
\nand  two  or  more appeals are\tfiled  against\tany   decree
\ncovered by that judgment,  whether by the same appellant  or
\nby  different appellants, the Appellate Court  may  dispense
\nwith the filing of more than one copy of the Judgment.\n<\/p>\n
     It has been argued on behalf of the appellant that\t the
\nHigh Court committed an error in not entertaining the appeal
\nunder  the proviso to Order XLI Rule 1 of the Code of  Civil
\nProcedure. It was submitted that the High Court should\thave
\naccepted  and  admitted the appeal for hearing as  a  common
\nJudgment  was delivered in O.S. No. 21 of 1979 and O.S.\t No.
\n105  of 1980 and the appeal filed by the plaintiffs in\tcase
\nO.S.  No.  21 of 1979 having been admitted  the\t High  Court
\nshould have dispensed with the filing of a certified copy of
\nthe Judgment by the plaintiffs in O.S. No. 105 of 1980.\t The
\nproviso\t to Order XLI Rule 1 C.P.C. clearly applied  to\t the
\ncase  of the appellant and the High Court was wrong  in\t not
\napplying  the same inspite of the specific prayer   made  in
\nthis  regard. It was further contended that a memorandum  of
\nappeal\tneed  not  necessarily accompany  a  certified\tcopy
\nobtained by the appellant himself. Thus the advantage of the
\nprinted\t copy obtained by the plaintiffs in O.S. No.  21  of
\n1979  could be taken use of by the plaintiffs  in  O.S.\t No.
\n105 of 1980 in filing an appeal and if the same is  allowed,
\nthe  appeal filed by the plaintiffs in O.S. No. 105 of\t1980
\nwas within time.\n<\/p>\n
     On\t the other  hand Learned counsel appearing  for\t the
\ncontesting  respondents placed reliance on the\tJudgment  of
\nthe Learned Single Judge. It was submitted that neither\t any
\nseparate application for condonation of delay was filed\t nor
\nany  ground was\t made out in the affidavit filed by the\t 9th
\nrespondent who was  himself an Advocate of long standing, in
\nsupport\t of  the  C.M.P.  No. 32544 of\t1983.  Only  a\tbald
\nstatement  was\tmade in the affidavit that  they  bona\tfide
\nbelieved that the copies that would be made
\n\t\t\t\t\t\t       554<\/span>
\navailable  to the plaintiffs in O.S. No. 21 of 1979  on\t the
\nfile  of Court of the Subordinate Judge, Mavelikara could be
\nmade use of for preferring the appeal.\n<\/p>\n
We  have  given our careful consideration to  the  arguments
\nadvanced  by  Learned  Counsel\tfor  the  parties  and\thave
\nthoroughly perused the record. The proviso to order XLI Rule
\n1  C.P.C. was added by Section 87 of C.P.C.  Amendment\tAct,
\n1976  w.e.f. 1.2.1977. The statement of Objects and  Reasons
\nfor the above amendment are given as under :\n<\/p>\n
     OBJECTS AND REASONS
\n     “Where two or more suits or appeals are disposed of  by
\na  common  Judgment, the requirement of Order XLI  that\t the
\nmemorandum of appeal should be accompanied by a copy of\t the
\njudgment  occasions extra expenses. It is intended  to\tmeet
\nwith this difficulty by providing that where more cases than
\none  are disposed of by common judgment the appellate  court
\nmay  dispense with the necessity of filing of more than\t one
\ncopy of the judgment.”\n<\/p>\n
     Thus  the\tentire\tpurpose\t of  introducing  the  above
\nprovision was to avoid extra expenses where more cases\tthan
\none  were disposed of by common Judgment  and the  Appellate
\nCourt  was  authorised\tto dispense with  the  necessity  of
\nfiling\tmore than one copy of the Judgment. It was no  doubt
\nmade clear by adding the proviso to Order XLI Rule 1  C.P.C.
\nthat  the  filing of the certified copies  of  the  Judgment
\ncould be dispensed with where two or more appeals are  filed
\nagainst\t the  common Judgment by the same  appellant  or  by
\ndifferent  appellants. The above Order XLI Rule 1  contained
\nin the Code of Civil Procedure only deals with provision  as
\nto  what  documents  should be accompanied  along  with\t the
\nmemorandum of appeal. The provision has no relevance nor can
\ncontrol\t the  provisions of limitation which  are  contained
\nseparately under the Limitation Act, 1963. Part (III) of the
\nLimitation  Act, 1963 provides for computation of period  of
\nlimitation  and Section 12 deals with exclusion of  time  in
\nlegal proceedings with which we are concerned in the present
\ncase. So far as the case in hand before us is concerned, the
\nadmitted  facts are that the plaintiffs in O.S. No.  105  of
\n1980  filed  the  memorandum of appeal\tin  the\t High  Court
\nagainst\t the Judgment and decree passed by  the\t Subordinate
\nJudge  Mavalikar dated 27.8.1982. The memorandum  of  appeal
\nwas  accompanied by a  certified copy of the decree as\twell
\nas a  printed copy of the common
\n\t\t\t\t\t\t       555<\/span>
\nJudgment.  We  are  at pains to understand  as\tto  how\t the
\nappellant  can claims any benefit of the proviso  to  Order
\nXLI Rule 1 C.P. and as a consequence thereof the benefit  of
\nthe  time  spent  in obtaining the  certified  copy  of\t the
\nJudgment  by  the  plaintiffs of O.S. No. 21  of  1979.\t The
\nproviso\t permits  the Appellate Court to dispense  with\t the
\nfiling\tof  more than one copy of the Judgment in  order  to
\nsave the expenses, but in the present case the plaintiffs in
\nO.S. No. 105 of 1980 had already filed a printed copy of the
\nJudgment  of the Subordinate Judge and as such there was  no
\nquestion of seeking any order from the Appellate Court (High
\nCourt in the present case) for dispensing with the filing of
\nmore  than one copy of the Judgment. The only question\tthen
\nremains\t to  be\t considered is\twhether\t the  appellant\t and
\nrespondents  Nos. 6 to 9 who were plaintiffs in O.S.No.\t 105
\nof  1980  had  filed  certified copy  of  the  decree  under
\nchallenge  along with the memorandum of appeal and the\ttime
\nin  obtaining  the  certified copy of\tthe  decree  can  be
\nexcluded in computing the limitation and there is no dispute
\nthat  such time has been excluded but even  after  excluding
\nsuch time the appeal is barred by limitation. So far as\t the
\nprinted\t copy of the Judgment filed with the  memorandum  of
\nappeal\tit  does  not  contain\tthe  necessary\t particulars
\nregarding  the person who made the application, the date  of
\napplication,  the  date\t of issue,  the\t date  notified\t for
\nreceiving the same as required in Rules 253  and 254 of\t the
\nCivil  Rules of practice in order to entitle the  appellants
\nto  claim  extension  of time under  Section  12(3)  of\t the
\nLimitation   Act.  Confronted  with  this  difficulty,\t the
\nappellant  and\tother  plaintiffs in O.S. No.  105  of\t1980
\nsought to rely on the proviso to Order XLI Rule 1 C.P.C. and
\nto g et the advantage of the time taken by the plaintiffs in
\nO.S. No. 21 of 1979  in obtaining the certified copy of\t the
\ncommon Judgment. We are clearly of the view that there is no
\njustification  nor any basis for claiming such\tbenefit\t and
\nthe High Court rightly dismissed the CMP. NO. 32544 of 1983.
\nIt is, however made clear that we are upholding the Judgment
\nof  the\t High  Court on different grounds  and\twe  are\t not
\nexpressing any opinion on the merits of the questions of law
\ndecided by the Learned Single Judge. We also do not find  it
\nnecessary to advert to any case law referred in the Judgment
\nof  the High Court or cited before us, as in the  facts\t and
\ncircumstances of the case there is no basis or justification
\nat  all\t for the applicability of the proviso to  Order\t XLI
\nRule  1\t C.P.C. itself. Thus when the main  bedrock  of\t the
\nentire case of the plaintiffs appellants of O.S. No. 105  of
\n1980 falls to the ground the question of
\n\t\t\t\t\t\t       556<\/span>
\nseeking any benefit, therefore, does nor arise.\n<\/p>\n
     In\t the result we find no force in this appeal and\t the
\nsame is dismissed with no order as to costs.\n<\/p>\n
G.N.\t\t\t\t\t   Appeal dismissed.\n\t\t\t\t\t\t       557<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P.A. Oommen vs Moran Mar Baselius Marthoma on 17 July, 1992 Equivalent citations: 1992 AIR 1977, 1992 SCR (3) 548 Author: N Kasliwal Bench: Kasliwal, N.M. (J) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-174999","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP.A. 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