1992 (11) TMI 296 - HC - Indian Laws

Appeal Dismissed for Late Filing; Opportunity Given to Apply for Delay Condonation Under Limitation Act.

V. Sivalingam Versus Dakshinamurthy And Ors.

The HC concluded that the appellant's appeal was filed beyond the prescribed time limit, as the three days provided by Rule 242 of the Kerala Civil Rules ... - Issues Involved:1. Whether the appeal was filed within the prescribed time limit.2. Interpretation of 'time requisite' under Section 12(2) of the Limitation Act.3. Applicability of Rule 242 of the Kerala Civil Rules of Practice in computing the limitation period.Detailed Analysis:1. Whether the appeal was filed within the prescribed time limit:The judgment of the trial court was pronounced on 21-12-1991. The application for a copy was made on 24-12-1991, copying sheets were called for on 27-1-1992, and produced on 30-1-1992. The certified copy was ready and delivered on 31-3-1992. The appeal was filed on 27-6-1992, making it the 92nd day, thus indicating a delay in filing the appeal.2. Interpretation of 'time requisite' under Section 12(2) of the Limitation Act:Section 12(2) of the Limitation Act states, 'In computing the period of limitation for an appeal, the day on which the judgment was pronounced and the time requisite for obtaining a copy of the decree shall be excluded.' The term 'time requisite' has been subject to judicial interpretation. The Privy Council in Pramath Nath Roy v. Lee emphasized that no period can be regarded as requisite if it need not have elapsed had the appellant taken reasonable steps to obtain the copy.3. Applicability of Rule 242 of the Kerala Civil Rules of Practice in computing the limitation period:Rule 242 states that a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board and remain for three clear working days. The appellant contended that these three days should be excluded as 'time requisite' for obtaining the certified copy.The court referred to the Division Bench decision in Kurian Antony v. Chacko Happen, which held that the time requisite for obtaining copies is the time taken using all possible diligence. The applicant should deposit the required charges not later than the first working day after notification. Any delay beyond this is due to the applicant's negligence and cannot be excluded in computing the time requisite.Further, the court noted that the consistent practice in the High Courts integrated into the Kerala High Court was not to exclude the period availed by the party in supplying the printing charges after notification. The court also referred to the decision in Mohammed v. Kunhammad Haji, which stated that holidays intervening between the date of calling for copying sheets and their production can be excluded but not the entire three days automatically.The appellant also cited Sreevalsan Pillai v. Thankamoni Amma, arguing that the period between dismissal and restoration of an application for non-production of copying sheets should be excluded. However, the court found that this reasoning did not apply to the present case.The court also examined the decision in Udayan Chinubhai v. R.C. Ball, which emphasized that a party cannot take advantage of ministerial delay in preparing the decree unless there is a legal impediment.The Andhra Pradesh High Court's decision in In re Javvaji Venkateshwarlu was also considered, which suggested that the time stipulated for calling for stamp papers should be treated as time requisite. However, the Kerala High Court disagreed, stating that Rule 242 operates to save the application from dismissal, not to create a fiction that the sheets were produced the day after they were called.The Orissa High Court's decision in Smt. Aparajita Dibya v. Binod Behari Patra supported the view that the time taken by the applicant to comply with the court's direction is not to be excluded as time requisite.Conclusion:The court concluded that the appellant is not entitled to automatically exclude the three days provided by Rule 242 of the Kerala Civil Rules of Practice. Consequently, the appeal was deemed to be filed beyond the prescribed time limit. The appellant was granted time to file an application under Section 5 of the Limitation Act to seek condonation of the delay in filing the appeal.