TaxTMI 
TaxTMI 
2002 (12) TMI 658
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....r restoration. 4. In the proceedings in application for condonation of delay it is the case of the Petitioners that after the dismissal of the Appeal on 6th October, 2001 the appellants preferred Letters Patent Appeal No. 60 of 2001 which was disposed of on 11.3.2002 and thereafter the application for restoration was filed on 1.4.2002 and therefore, there was sufficient cause for condonation of delay in filing the application for restoration. 5. As far as proceedings in the application for restoration is concerned, it is the case of the Petitioners that after the extension of period by three months for enabling the Petitioners to place on record certified copy of the decree by the order passed by this Court on 24.1.2001, the certified copy of the decree was actually filed in this court on 23.3.2001. However, by order dated 22.6.2001 as none appeared on behalf of the Petitioners in the said Appeal and no steps were taken to explain the delay in filing the certified copy of the decree and the office objections in that regard were not removed, it was ordered that the matter be placed before the Court on 18.7.2001. Thereafter, when the First Appeal came up for final hearing on 6.9.20....
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....t was entirely on account of the fault of the earlier Advocate who appeared for the Petitioners who had by mistake restricted the application to the certified copy of the Judgment and order and no asked for certified copy of the Decree while filing the application on 14.9.1995. Further considering the fact that Appeal was already admitted the time was granted to file certified copy of the decree, the Petitioners bonafide believed that application for condonation of delay was not required to be filed. Accordingly, learned Advocate for the Petitioners submitted that in the facts and circumstances of the case, this is a fit case for invoking discretionary power under Section 5 of the Limitation Act 1963 and therefore, delay in placing on record certified copy of the decree as well as delay in filing application for restoration should be condoned. It is further submitted that application for restoration was filed within two weeks after withdrawal of the Letters Patent Appeal and it shows bonafide on the part of the Petitioners and their interest in pursuing with the matter. 7. The learned Advocate for the Respondents on the other hand, has submitted that there has been inordinate and ....
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....e of certain undisputed facts revealed from the records. On 31.7.1995 the trial court decreed the suit being SCC No. 6545 of 1982 filed by the Respondents for declaration and injunction restraining the Petitioners from entering the disturbing the possession of the respondent/plaintiff in relation to the suit stall which is a pan shop. On 14.9.1995 the Petitioners applied for certified copy of the Judgment and order of the trial court. On 5.10.1995 the Petitioners filed appeal against the Judgment of the trial court. On 6.10.1995 the matter was mentioned before the Court thereupon it was directed to be placed for hearing on admission on 30.10.1995, while granting interim relief in the nature of stay of the operative portion of the impugned decree. Matter thereafter was placed for hearing on admission on 15.11.1995 on which date the appeal was admission on 15.11.1995 on which date the appeal was admitted. However, the same was placed before the court on 13.12.1996 on account of failure on the part of the Petitioners to remove the office objections and there upon four weeks time was granted to the petitioners to do the needful in the matter. Again the matter was placed before the Cour....
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....py of the decree was not filed alongwith the appeal against the Judgment of the trial court. The provisions of law contained in Order 41 Rule 1 of CPC as well as the relevant provisions of the Appellate Side Rules of this High Court clearly warranted at the relevant time filing of the certified copy of the decree alongwith the appeal. Undoubtedly, in case of any difficulty in procuring certified copy of the decree, the parties were permitted to move for extension of period for filing such certified copy of decree and undoubtedly it is a practise of the court to grant such time in deserving cases. Incase of failure to submit such certified copy, the office is required to raise objection in that regard and to bring the said objection to the notice of the parties. Records apparently disclose that the office had raised necessary objection for not filing of the certified copy of the decree and it was made known to the Petitioners and the petitioner was granted time to place on record certified copy of the decree and infact the court had passed the order in that regard on 12.12.2002 clearly specifying that if the certified copy is not filed within four weeks from that day, the appeal wou....
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....tion sought to be raised on behalf of the Respondents in relation to the provisions of Section 5 and 12 of the Limitation Act 1963 and the decisions sought to be relied upon in that regard. 13. The explanation clause to Section 12 provides that in computing the period of limitation, the time requisite for obtaining a certified copy of a decree of an order which is required to be excluded in terms of the provisions of the said section, 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. According to the learned Advocate, question of exclusion of time spent for preparation of the decree would arise only in cases where the party takes the necessary steps for preparation of the decree within the period of limitation and not otherwise. In other words, if the period of limitation prescribed for filing of appeal is 30 days from the date of pronouncement of the Judgment, and the party files an application for certified copy of the decree within such 30 days, then the period spent in preparation of such decree can be excluded while computing period of limitation but if steps for obtaining certified copy are take....
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....ot do so but waits beyond the prescribed period of the limitation on the specious excuse that the court is still drawing up the decree, his application being beyond limitation, the appeal that will be filed subsequently can never be in time." 16. Considering the law laid down by the Apex Court and the Division Bench of this Court, it is therefore, clear that question of giving benefit of exclusion of a period required for obtaining certified copy of the Judgment and decree while filing the appeal can arise only in cases where the party applies for certified copy of the Judgment and decree within the period of limitation and not otherwise. A party sleeping over his right for the entire period of limitation and thereafter asking for the certified copy of the Judgment and decree cannot claim benefit of exclusion of the said period while computing period of limitation which he would have otherwise been entitled to under Section 12, had he filed application for certified copy within the period of limitation. Learned Advocate for the Respondents is therefore justified in contending that in case where application for certified copy of the Judgment and decree is filed beyond the peri....
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....to the provisions of Order 41 Rule 1 w.e.f. 1.7.2002 the requirement of accompaniment of the certified copy of the decree at the time of presentation of Memorandum of Appeal though excluded, the necessity of the certified copy of the decree for disposing the appeal cannot be ruled out as various other factors like valuation of the Appeal, the court fee payable thereon would depend upon the bill of cost prepared by the Registry on disposal of the suit on the basis of the valuation and the court fee paid in the suit. Being so the necessity of the certified copy of the Judgment as well as of the decree for entertaining and disposal of the appeal cannot be considered as mere formality but has to be considered as mandatory requirement. Being so any step in the direction of collecting the legally required material necessary for the purpose of preferring the appeal would amount to taking steps for preferring the appeal within the meaning of the said expression under Section 5 of the said Act. Being so, "sufficient cause for not preferring" would also include sufficient cause for not preferring the application for certified copy of the decree within the period of limitation. 19.....
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....d to be placed on record, there is absolutely no explanation as to what prevented the petitioners from obtaining certified copy from February-1997 till January-2001. The arguments advanced in the course of the hearing of the matter blaming the earlier Advocate on record for failure to ask for certified copy of the decree in application dated 14.9.1995 without disclosing any cause for failure on the part of the petitioners to obtain certified copy from February-1997 onwards inspite of the full knowledge about the requirements thereof and attempt to blame the earlier Advocate of the petitioners in that regard clearly reveal lack of bonafide on the part of the petitioners. 21. Contention that the petitioners were granted time to produce the certified copy of the decree would itself disclose sufficient cause for condonation of delay is devoid of substance. As already observed above, by order dated 12.12.2000 it was made specifically clear that on account of failure on the part of the petitioners to file certified copy of the decree alongwith the appeal and the same was sought to be placed on record long after the expiry of the period of limitation, the petitioners had to justify the d....
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....n Singh. Nodoubt, when the matter was being heard an attention was drawn to the said statement, the learned Advocate for the petitioners on behalf of the petitioners submitted that the petitioners were seeking to tender their apology for the said incorrect statement. Infact it is too late to entertain any such apology on behalf of the petitioners as regards the said incorrect statement, as the submission in that regard has been made only after drawing attention of the petitioners to the said fact. The said statement is from the application filed by the petitioners themselves. The application was filed knowing well that it was pertaining to the condonation of delay in placing the certified copy of the decree on record. The statement is in relation to the certified copy of the decree. Being so, the statement is very relevant statement in relation to the matter in question and therefore, it cannot be presumed that the petitioners did not know the consequences of making such incorrect statement. Be as it may, the same discloses the conduct and the attitude of the petitioners and both these factors are very relevant while dealing with the application seeking a discretionary relief from ....
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....and nullified. Mere listing of the case alongwith matters fixed for final hearing that itself would not decide the status of the case. When the records apparently disclose that the matter is still required to be heard on admission, listing of such matters alongwith other final hearing and even taken up for the purpose of final hearing pursuant to listing of such matter on the board containing the matters for the final hearing that by itself would not disclose the stage at which the matter stands. Being so, it cannot be said that the matter was admitted and could not have been disposed of without being heard finally. That apart, considering that the appeal being continuation of the suit and bearing in mind provisions of Order 41 Rule 17 read with the provisions of Section 151 and Order 17 of the Code of Civil Procedure, the default by a party would not restrict to non appearance of the party but would also include a default in carrying out any act necessary for the purpose of further progress of the proceedings in the appeal and failure on the part of the party to the appeal to perform such an act would, empower the court to dismiss the appeal for default. Once the order dated 22.6.....