Madhya Pradesh High Court
Ram Shiromani Mishra vs Shiv Mohan Singh And Anr. on 3 October, 1996
Equivalent citations: AIR1997MP202, AIR 1997 MADHYA PRADESH 202, (1998) 1 TAC 731
JUDGMENT S.C. Pandey, J.
1. This revision isdirected against the order dated 22-9-1995, passed by IIIrd Additional Motor Accident Claims Tribunal, Satna in M.J.C. No. 28/95. The disposal of this revision shall also govern the disposal of two connected revisions, Civil Revision Nos. 1848/96 and 1849/ 96.
2. The applicant filed three applications supported by affidavits of even number for setting aside three ex parte awards, dated 4-7-1984, passed against him in favour of the non-applicants in Claims Tribunal Cases No. 126/89, 131/89 and 127/89 respectively. The case of the applicant was that none of the summons in above three cases was served upon him. Therefore, he was unaware about pendency of any claim against him. For this reason he remained absent and three ex parte awards, dated 4-7-1994, were passed against him in his utter ignorance. He received notices for appearance before the Tribunal in respect of the ex parte awards which were sought to be executed by the claimants on 8-2-1995. In this connection, he went to the court on the date fixed in the three notices on 8-3-1995 and upon inspection of record of cases, mentioned in the aforesaid notices, he came to know about the ex parte awards in each case. Thereafter he applied for the certified copies of the three awards On 9-3-1995 in each case. After obtaining the certified copies of the ex pane awards, he filed an application under Order 9, Rule 13 of C.P.C. for setting aside the ex parte awards on 17-4-1995. He stated in his applications under Order 9, Rule 13 of C.P.C. in each case that he knew about the passing of ex parte awards on 8-3-1995. Then he also explained in applications under Section 5 of Limitation Act supported by an affidavit in each case that if we exclude the time for obtaining the certified copies in each case, then his applications for setting aside the ex parte awards would be within 30 days from the date of the knowledge of these awards, i.e. 8-3-1995. In the alternative, it was pleaded that the lime requisite for obtaining the certified copies in each case should be excluded and it be held that there was sufficient cause within the meaning of Section 5 of Limitation Act for not filing the applications under Order 9, Rule 13, of C.P.C. within the period of limitation of 30 days. Apart from the question of limitation, the applicant took a plea on merits in each case that it was upon inspection of the record that he came to know that some Advocate appeared on his behalf and subsequently he did not appear before the Claims Tribunal in each case. That is why three ex parte awards were passed against him in each case. The applicant denied that he was served with the summons of the Claim Cases. He further denied that he had engaged any Advocate on his behalf in the three claim cases. He, therefore, prayed for setting aside ex "parte awards in each, case.
3. The non-applicants denied the entire claim, of the applicant on merits as well as contested his claim on the ground that all the three applications for selling aside the three awards are barred by. time.
4. The Claims Tribunal without recording any evidence or making enquiry in each case as to whether the summons was served upon the applicant assumed that the applicant was served and represented. It also held that the three applications were barred by time. Accordingly, it dismissed the three applications for setting aside the three ex parte awards.
5. The applicant has approached this Court under Section 115 of C.P.C. assailing the findings of the Claims Tribunal, Saina as unauthorised and unwarranted under the provisions of Order 9, Rule 13, C.P.C. read with Rule 240 of Motor Vehicles Rules, 1994 (henceforth 'the Rules').
6. The learned counsel for the non-applicant No. 1, Shri R.P. Agrawal has, however, raised a preliminary objection to the maintainability of those revisions. According to the learned counsesl for the non-applicant No. 1, the applicant should have filed appeals and not revisions. The learned counsel submitted that the Claims Tribunal is a Civil Court and so per Rule 240 of 'the Rules', Order 9, Rule 13 of C.P.C. is made applicable to proceedings before Motor Vehicles Claims Tribunal. For this reason an appeal would lie under Order 43, Rule 1(d) of C.P.C. and not a revision. The learned counsel form non-applicant No. 1 further submitted that since a Division Bench of this Court in Krishna Gopal v.Dattatraya 1971 JLJ 903 : AIR 1972 MP 125 had held, that Claims Tribunal is a Civil Court, the provisions of Order 43, Rule" 1 of C.P.C. shall automatically apply to proceedings before it.
7.Thelearnedcounselfortheapplicant,onthe other hand, asserts the revision is maintainable. The learned counsel for the applicant docs not deny that the Claims Tribunal exercises powers of Civil Court on certain occasions. However, he contends that all the provisions of C.P.C. are not made applicable to it. 'The learned counsel for the applicant submitted that it is clear from Rule 240 of 'the Rules' that only certain parts of the First Schedule of C.P.C. were adopted by that Rule. Order 43 of C.P.C. was not incorporated in the Rule 240 aforesaid and, therefore, it was inapplicable.
8. Since the Motor Vehicles Tribunal is presided over by the District Judge or Addl. Judge to the Court of District Judge, these revisions could be easily ordered to be converted into appeals, as limitation and Court fee would be the same in each case. However, it is necessary that the parties should know the correct remedy and in absence of an authoritative decision, reported fully in any Law Jounrnal, this Court had taken upon it self the task of clarifying the law regarding the forum in case an application for setting aside an ex parte award is dismissed.
9. The Rule 240 of 'the Rules' reads as under:
"240. Procedure to be followed by Claims Tribunal in holding enquiries. -- Applications of certain provisions of Code of Civil Procedure 1908; Save as otherwise expressly provided in the Act or these rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) namely, those contained in Order V, Rules 9 to 13 and 15 to 20, Order IX, Order XVIII, Rule 3 to 10, Order XVI, Rule 2 to 21, Order XVII, Order XXI and Order XXIII, Rules 1 to 3 shall apply to proceedings before a ClaimsTribunal in so paras they may be applicable thereto."
It is analogous to Rule 14 of M.P. Motor Vehicles Accident Claims Tribunal Rules, 1959 word for word and, therefore, it is not necessary to reproduce the Rule 14.
10. The Rule 240 of 'the Rules' expressly states, unless otherwise provided in the Act or in those Rules, no orders of the First Schedule of C.P.C. shall be applicable other than those mentioned in the list. The intention of the Rule Making Authority is explicit. It did not want to burden the procedure of Claims Tribunal with all the provisions of First Schedule of C.P.C. Therefore, only a chosen few orders have been mentioned in Rule 240 of 'the Rules'. Once this aspect of the Rule 240 is borne in mind, it would be crystal clear that the Rule Making Authority omitted application of Order 43, Rule I of C.P.C. to the cases under Claims Tribunal. The omission deliberate or otherwise has to be respected. There is no other provision of Motor Vehicles Act, 1988 (hereinafter called 'the Act' for short) or the Rules which makes Order 43 of C.P.C. applicable. Section 4(1) of C.P.C. reads as under:
"4. Savings. -- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."
It is clear from the aforesaid section that the Rules of procedure of Special Tribunal or a Court shall override the provisions of C.P.C. Thus the Rule 240 of 'the Rules' by implication overrides the provisions of C.P.C. and makes only certain provisions in the First Schedule applicable.
11. Even otherwise it is well settled, that a right of appeal is a creature of statute. It is a substantive right. It cannot be conferred by mere intendment or implication. It must be given by statute or by some authority equivalent to a statute. Therefore, we cannot confer any right of appeal by implication or intendment. The learned counsel for non-applicant No. 1 drew the attention of this Court to the decision of a Division Bench of this Court reported in Krishna Oopal's case (supra). In that case, the controversy was whether a Claims Tribunal under Motor Vehicles Act is a Civil Court subordinate to High Court within the meaning of Section 115 of C.P.C. or not. There was a difference of opinion between S.B. Sen and S.M.N. Raina, JJ. The matter was referred to Bhave, J. who agreed with S. B. Sen, J. and held that the Claims Tribunal was Civil Court subordinate to High Court, and, therefore, Section 115 of C.P.C. applied. We cannot apply this decision to the facts of this case. Application of Section 115 of C.P.C. has not been specifically barred under the Motor Vehicles Act, 1939 or the Rules. The Rule 240 only refers to the First Schedule of C.P.C. Therefore, once this Court came to the conclusion that the Claims Tribunal is in reality a Civil Court subordinate to High Court, there was no difficulty in applying Section 115 of C.P.C. The majority of the Judges held that the Claims Tribunal is a Civil Court subordinate to High Court. Raina, J. held that it was a tribunal having.'the trappings of a Civil Court'. From this decision, it cannot be concluded that Order 43, of C.P.C. is equally applicable.
12. The learned counsel for the non-applicant No. 1 drew the attention of this Court to a decision reported in Vishnoo Kumar Budhan v. Liladhar Hari Ram Agarwal 1994 MPLJ 511 wherein a learned Judge of this Court, applied Section 24 of Code of Civil Procedure to proceedings under Motor Vehicles Act, 1988 on the ground that the Claims Tribunal is a Civil Court, subordinate to High Court. The learned single Judge at page 515 observed as follows:
"Thus although the Motor Accident Claims Tribunal is a tribunal constituted under the Motor Vehicles Act, it is a Court of Civil judicature. The Code of Civil Procedure applies to the proceedings of all Courts of civil judicature except that it does not affect any special or local law or any special jurisdiction or power conferred or any special procedure prescribed by any other law for the time being in force. It is only if there is a conflict between Civil Procedure Code and special law, the latter should prevail, being special law. There is no conflict between the procedureof the tribunal prescribed in the Act and Civil Procedure Code. In the Motor Vehicles Act, or rules framed thereunder, there is no provision like Section 24, Civil Procedure Code whereunder powers are given to a Tribunal to transfer the case from one Court to another Court and therefore, Section 24 of the Civil Procedure Code has any application for transfer of claim petition from one Accident Claims Tribunal to another Accident Claims Tribunal. The High Court has jurisdiction to transfer the case exercising powers under Section 24 of the Civil Procedure Code."
It is obvious that this case does not help the argument of the counsel for the non-applicant No. 1. It declares in so many words that the application of provisions of Civil Procedure Code are subject to special law. The law in shape of the Rule 240 of 'the Rules' excludes the application of Order 43, of C.P.C. to proceedings under Motor Vehicles Act. The attention of this Court was drawn to Civil Revision No. 2011/95 decided on 27-2-1996. The Court interpreting Section 169 of Motor Vehicles Act held in that case that under its inherent powers a Claims Tribunal may review us own order. The following passage in paragraph 12 brings out the ratio of the case now reported in National Insurance Co. Ltd. v. Lachhi Bai 1996 JLJ 546:
"From the aforesaid discussion, it is clear that power of review vests with the Tribunal in its inherent power under Section 169 of the Motor Vehicles Act though Rule 240 of the M. P. Motor Vehicles Rules, 1994 has not expressly provided for application of Order 47, C.P.C. A review application is maintainable when it is sought due to a procedural defect, or inadvertent error committed by the Tribunal, to prevent abuse of its process. Such power inhere in the Tribunal. The contention of the learned counsel for the non-applicant cannot be accepted that power of review is not provided by the statute, therefore, it cannot review its own order. As considered by me earlier, wide powers are vested with the Tribunal under Section 169 of the Motor Vehicles Act. Therefore, review on limited grounds as mentioned above is permissible."
The case does not apply Order 47 of C.P.C. and is, therefore, distinguishable.
13. Ultimately, the decision of this Court is based on the express words of Rule 240 of 'the Rules' which bars application of Order 43 of C.P.C. to setting aside an ex parte awards by necessary intendment. A learned single Judge of this Court RR. Sharma, J. had taken a similar view in Gitabai v. General Manager, M.P. Roadways 1971 MPLJ Note 132 and General Manager, Bhilai Steel Project v. Steel Works Union, Bhopal, 1964 JLJSN 98 while interpreting analogous Rule 14 of Motor Accident Claims Tribunal Rules, 1959 framed under Motor Vehicles Act, 1939.
14. The learned counsel for the non-applicant No. 1 did not dispute that a revision lies in view of the Division Bench case, cited by him, reported in Krishna Gopal's case (supra). Even otherwise that decision is binding on this Court. In view of the above discussion, this Court overrules the preliminary objection and holds that revision is maintainable.
15. The contention of the learned counsel for the applicant on merits is that the applicant was not served with summons in each case and, therefore, he did not appear. He came to know about the three ex parte awards only on 8-3-1995 when he appeared before the Tribunal. Thereafter, he applied for certified copies of the ex parte awards. After deducting the time taken for obtaining certified copies, the applications for setting aside the ex parte awards were within time. He argued that the time for getting the certified copy of the ex parte awards should be excluded under Section 12 of Limitation Act or, in the alternative, it was submitted that delay in [filing the applications under Order 9, Rule. 13 of C.P.C. was due to legitimate requirement of the applicant, the delay, if any, should be condoned under Section 5 of Limitation Act.
16. As against this, the learned counsel for non-applicant No. 1 vehemently argued that since copies of ex parte awards were not required to be filed, it was not necessary to exclude the copying time. The learned counsel referred to a decision reported in Panna Lal v. Murari Lal, AIR 1967 SC 1384 : 1967 All LJ 685. According to learned counsel, the applicant had full knowledge about the three ex parte awards on the date he appeared and, therefore, the applicant should have filed the applications for setting aside the awards within 30 days from that day. There could be no exclusion of time under Section 12 and there was no sufficient cause for extension of time under Section 5 of Limitation Act.
17. Both the learned counsel have assumed that an application for setting aside the ex parte award of Motor Vehicles Claims Tribunal is governed by Article 123 of Limitation Act and that the Limitation Act applies to the proceedings.
It is, therefore necessary to reproduce Article 123 of Limitation Act, which reads as follows:
"123 To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte.
Thirty Days.
The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree."
It may be noticed that this Article would apply only to applications for setting aside an ex parte decree. The question is whether an award can be termed to be decree. There is nothing in the Act or the Rules to suggest that award shall be deemed to be a decree. The definition of a decree under Section 2(2) of Code of Civil Procedure does not include an award. It may also be noticed after amendment of Section 166 of 'the Act' from 14-11-1994, there is no limitation prescribed for filing an application for compensation. The compensation given is called an award under 'the Act'. Neither 'the Act' nor the Rules prescribed any limitation for an application for setting aside an award. Now an award under 'the Act' is not a decree. The proceedings before a Motor Vehicles Claims Tribunal cannot be said to be a suit under the; Code of Civil Procedure. There is no specific provision under the main body of the Motor Vehicles Act which makes these proceedings the proceedings of Civil Court. The Limitation Act does not apply to proceedings under Motor Vehicles except where Section 29(2) of Limitation Act makes Sections 4 to 24 applicable as in case of an appeal to the High Court. If we examine the scheme of the Motor Vehicles, we find that the Act is self contained code so far as it relates to proceedings for determination of compensation. The claim for compensation has to be filed under Section 166 of 'the Act' in respect of death or bodily injury or damages to property of third party or both. Sub-section (1) of Section 166 of 'the Act' provides for the persons entitled to file an application for compensation. Sub-section (2) of that section provides for the forum. Now Sub-section (3) of 'the Act' has been omitted and no limitation is provided for filing the application for a claim for compensation under 'the Act' from 14-11-1994. It is clear that none of the provisions of Limitation Act shall be attracted to original proceedings for recovery of compensation under Section 166 of 'the Act'. Now it has already been noticed that the Rule 240 of 'the Rules' applies inter alia to Order 9 of Code of Civil Procedure by reference. According to settled rule or interpretation, we may read Order 9, of Code of Civil Procedure in Rule 240 of 'the Rules' as was held in In re Wood's Estates, Ex Parte Her Majesty's Commissioner of Works and Buildings C.A. (1886) 31 ChD607 atpage615 as follows:
" It is to put them into the Act of 1855, just as if they had been written into it for the first time. If a subsequent Act brings into itself by reference some of the clauses of former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all."
This device adopted by the Rule Making Authority is for brevity and convenience. However, by mere incorporation of Order 9 in Rule 240 of 'the Rules' would not result in incorporation of analogous provision of Limitation Act for setting aside an ex parte decree under Article 123. It appears that the Rule Making Authority omitted to incorporate Article 123 of Limitation Act or provide for period of limitation for setting aside an ex parte' award. This appears to be case of omission on the part of Rule Making Authority. It is a classic example of what may be some what pedentically called, casus omissus. Now it is also settled that Judge cannot supply an omission for it would be a 'naked usurpation power' of legislation. For the aforesaid reasons, this Court cannot apply Article 123 of Limitation Act when the Rule Making Authority has omitted to do so.
18. Now even if Article 123 by its own force does not apply to the case at hand, it would be necessary to dwell a little further if we can read Article 123 by way of interpretation by the language of the Act. Now when we read Section 168 of the Act, we find that it inter alia the Claims Tribunal to make an award subject to provisions of Section 162 of 'the Act'. The award inter alia determines (i) the amount of compensation to be paid to the applicant; (ii) specifies the persons who are liable to pay; (iii) further specifies the liability of the insurer, driver or the owner of the vehicle as the case may be; (iv) required the person liable to pay the amount under the award or to deposit it within thirty days of pronouncing the award.
Under Section 173 of the Act, the award is liable to be challenged in appeal to the High Court under its terms.
19. A special Bench of this Court in Oriental Insurance Co. Ltd. v. Chintaman, 1995 MPLJ 259 : AIR 1995 MP 229 has observed in paragraph 12 at p. 265 as follows at page 233 of AIR :
"Award" is explained in Black's Law Dictionary, Fourth Edition, at Page 174 as meaning -- 'To grant, concede, or adjudge to, to give or assign by sentence or judicial determination.......the decision or determination renderedby arbitrators orcommissioners, or other private or extra judicial deciders, upon a controversy submitted to them; also the writing or document embodying such decision." An award, as generally understood, is a document incorporating the adjudication or determination of a matter in dispute by person competent to adjudicate or determine the dispute. There is nothing in Chapter X or XII of the Act to indicate that any different meaning has been attributed to the expression in Section 173 of the Act'. The decision of liability under Section 143 is an award which can be challenged under Section 173."
Further in paragraph 13, it has been observed thus;
"The Motor Vehicles Act, 1988 does not define an award. It must, therefore, follow that the expression 'award' contained in the provisions referred to above carries its general meaning and content."
XXX "It must indicate the findings and the reasons, at least briefly."
Thus in brief an award is determination of the rights and liabjlities of the claimant and the insurer, owner and the driver jointly or severally for the reasons recorded in it. But it cannot be a decree because it is not a final adjudication by a Court of law expressed formally determining the rights of parties conclusively. It is a decision of Tribunal specially constituted under the Act. The award is not a decree. It follows as night the day that an ex parte award is not an ex-parte decree (sic). For this reason also, Article 123 of Limitation Act does not apply. It is well established that Limitation Act should be construed strictly as was held by Privy Council in Luchmes Suksh Roy v. Ranjit Ram Pandey, (1873) 20 Suth WR 375 PC at page 377 as follows:
"It has been said that this case ought to be decided on an equitable construction and not on the strict words of the statute, but their Lordships'' think that Statutes of Limitation like all others ought to receive such construction as the language in its plain meaning imports. Statutes of limitation are in their nature strict and inflexible enactments."
It is thus clear that Limitation Act, 1963 does not apply to an application for setting aside an award given ex parte. This may appear to us an astonishing conclusion, but for the fact, the legislature or the Rule Making Authority under the Motor Vehicles Act, 1988 has omitted to provide for any limitation for filing an application for setting aside an ex parte award.
20. Assuming that the view taken by this Court isnot correct, then also the applicant must succeed on the point of limitation, on the alternative view this Court is taking in the matter. If Article 123 of the Limitation Act applies, then the applicant is claiming that he had not been served with summons of the case. Naturally the limitation, in this case, would run' from the date of knowledge of the award as held by Supreme Court in Fanna Lal v. Murari Lal, AIR 1967 SC 1384 at page 1386 1967 All LJ 685 interpreting analogous Article 164 of Limitation Act, 1908 as follows:
"We agree that the expression "knowledge of the" decree" in Article 164 means knowledge of the particular decree which is sought to be set aside. When the summons was not duly served, limitation under Article 164 does, not start running against the defendant because he has received some vague information that same decree has been passed against him. It is a question of fact in each case whether the information conveyed to the defendant is sufficient to impute to him knowledge of the decree within the meaning of Article 164. The test of the sufficiency is not what the information would mean to a stranger, but what is meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him. If from the infermation conveyed to him the defendant has knowledge of the decree sought to be set aside, time beings to run against him under Article 164. It is not necessary that a copy of the decree should be served on the defendant. It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take affective steps to set aside the decree."
It is for this reason, the applicant rightly pleaded that he came to know about the ex parte awards an 8-3-1995 when he got record of the three cases inspected. He could, therefore, file the application under Order 9, Rule 13 of C.P.C. within 30 days from that date. However, he applied for certified copies of three awards on 9-3-1995 and got the copies on 5-4-1995. Thereafter, he filed the application within thirty days after excluding the lime taken for obtaining the three certified copies between 9-3-1995 to 5-4-1995.
21. Since this Court is assuming that Article 123 of Limitation Act applies, it would be reasonable to hold that Section 12 and Section 5 of Limitation Act applies. Now Section 12 of Limitation Act reads as under :
"12. Exclusion of time on legal proceedings. -
(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(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 decree, 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.
(4) In computing the period of limitation form application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded."
It would be clear from Sub-section (4) of Section 12 of Limitation Act that in computing the period of limitation for an application to set aside an award, the time requisite for obtaining the copy of the award shall be excluded. Now an ex parte award is also an award and an application to sei aside an ex parte award is definitely an application to set aside an award. Therefore, there is no escape from the conclusion that the applicant is entitled-to exclude the time requisite in obtaining the copy of the award. This is also clear from the definition of applications the Limitation Act. Section 12(4) of Limitation Act cannot confined to application for setting aside an award under the Arbitration Act alone for the reason the word 'award' has not been defined under the Limitation Act. There is no contrary indication in the context to hold that Section 12(4) is confined to a particular kind of award. We have already seen that Special Bench of five Judges of this Court in Oriental Insurance Company's case (supra) has held that award under Motor Vehicles Act determines rights of a claimant for the reasons recorded, however, briefly. Therefore, an ex parte award shall fall in the general definition of Award.
22. The learned counsel for the non-applicant No. 1 argues vehemently that the applicant can claim exclusion under Section 12(4) of Limitation Act only when he files certified copy of the award. According to learned counsel for the non-applicant No. 1, it would not be 'time requisite', if the applicant was not required to file a copy of the award. The learned counsel for the non-applicant No. 1 placed reliance on Union of lndia v. State of Madhya Pradesh, 1986 MPLJ 731. In that case, a reference was made to Jijibhoy N. Surty v. T.S. Chettyar (a Firm). AIR 1928 PC 103. It was held in that case that time requisite in obtaining the copy has to be excluded even though it was not necessary to file a certified copy of decree or judgment. The Privy Council has held that lime requisite means 'time required properly'. Therefore, where party does not need a certified copy and files an appeal or an application without obtaining it, it would not be time requisite. But, if a party obtains a certified copy, and thereafter, files an appeal or application, and claims exclusion of time for obtaining that copy, then it is entitled to do so. This case has been followed by Supreme Court in Additional Collector of Customs, Calcutta v. Best and Co., AIR 1966 SC 17 3 3 and The Commission of Sales Tax, U.P. v. Madanlal Dan and Sons Bareilly, AIR 1977 SC 523 : 1977 Tax LR 1626. Before the Division Bench, is was argued that Stale Government had filed the appeal without obtaining the certified copy because it acquired the certified copy after filing the appeal and, therefore, it cannot take advantage of obtaining certified copy subsequently as it did not require the "time properly for filing the Letters Patent Appeal. It appears that the Division Bench accepted the argument when it observed 'Technically speaking the appeal was filed beyond 38 days without certified copy of the order." The observation of the Division Bench in paragraph 10 to the effect "Therefore, the time required for obtaining the certified copy of the order has to be excluded in computing the period of limitation of 30 days for filing Letters Patent Appeal provided the copy is annexed with the memorandum of appeal" is for claiming exclusion. These observations could not imply that, when it is not necessary to file the certified copy, a party cannot claim exclusion of time for obtaining the certified copy. If those observations are interpreted otherwise, then they would run contrary to the following observations made by the Division Bench just above the line quoted above in para 1 10 at page 736 :
"The Privy Council in Jijibhoy Supdt. v. T.S. Chettiar Firm, (supra) has held that the time required for obtaining a copy of the decice or judgment must be excluded, even though by the rules of the Court it is not necessary to obtain the copy. This has been reiterated by the Supreme Court that Section 12(3) applies even though copy is not required to be filed along with the memorandum of appeal or revision of review (Collector, Customs v. Best & Co., AIR 1966 SC 1713; S. A. Gaffer v. Ayacha Begum, AIR 1977 SC 523 : l977 Tax LRI 626 and C.S.T. v. Madanlal Das & Sons, (sic) AIR 1941 Lah 257."
The reason for holding that a party can claim 'time requisite within Section 12, even if it is not required to file a copy, is that the party may require an authentic copy before proceeding further. In case such a claim is made, then it would be time properly required for filing an appeal or application. Section 12 in terms does not say that time requisite would be excluded only when a certified copy of impugned order, judgment or decree is required to be filed along with the appeal or application, as the case may be.
23. Even otherwise, the applicant has show sufficient cause under Section? of Limitation Act and the trial Court should have condoned the delay, for the reason, he was advised to obtain certified copies of the awards in question and his counsel thought this time for obtaining certified copy is to be excluded.
24. It is not indispute (hat Claims Tribunal did not follow the procedure under Order 9, Rule 13 of C.P.C, The applicant was disputing the service of summons. He was further disputing the fact that he had knowledge of pendency of proceedings against him. He denied that he had engaged any counsel in his case. Thus an application under Order9, Rule 13 of C.P.C. read with Rule 240 of 'the Rules' lay. The applicant was entitled to prove these facts even if the non-applicants denied these facts. The question of 'sufficient cause' for non-appearance could be decided in accordance with the provisions of Order 9, Rule 13 of C.P.C. The Tribunal did not record any evidence. It dismissed the application by merely reading it and disbelieving the contents of the application. No opportunity was given to applicant to prove his case. The Claims Tribunal not only violated the Order 9, Rule 13 of C.P.C. but also rode a rough-shod over elementary principles of natural justice. Such judicial arrogance is not given to any officer presiding over a judicial proceedings. His findings cannot be sustained as they arc not based on any evidence.
25. The result is that the impugned orders, dated 22-9-1995, in Civil Revisions Nos. 1847/ 96, 1848/96 and 1849/96 are set aside. The revisions in each case succeed. They are, therefore, allowed with costs. Counsel's fee Rs, 250/- in each case, if certified.