Calcutta High Court
Kamruddin Hyder vs M.N. Mitter on 13 August, 1924
Equivalent citations: 89IND. CAS.277
JUDGMENT Lanclot Sanderson, C.J.
1. This is an application for leave to file a memorandum of appeal which was rejected by the office on the 6th of August in this year.
2. It appears that the judgment against which it is desired to appeal was delivered on the 13th of May 1924, and on the 16th the appellant who was one of the defendants, sent a requisition to the office of this Court for a copy of the order He took no further steps until towards the end of June. It appears that on the 13th of June a requisition by the respondent was made for the drawing up of the order; that order was settled on the 25th of June 1924 and according to the learned Counsel's statement it appears that the appellant was present at the settlement of the order on the 25th of June. On the 4th of July the order was signed by the learned Judge and it was filed on the 5th of July. On the 26th of July the stamps which were required for obtaining the office copy were put in appellant It is alleged that the appellant did not get information as to the number of folios in respect of which the stamps were required until the 25th of July the day before the stamps were actually supplied.
3. The ground upon which the office refused to receive the appeal was that the requisition for the drawing up of the order had not been made within 20 days from the date of the order.
4. The time for appeal specified by the Limitation Act was twenty days from the 13th of May 1924, which time expired early in June. Bat the appellant relied upon Section 12, Sub-section. (2) of the Limitation Act which provides as follows: "In computing the period of limitation prescribed for an appeal . the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the...order appealed from...shall be excluded." The learned Counsel has argued that inasmuch as the appellant made a requisition for a copy of the order on the 16th of May 1924 the whole of the period from the 16th of May until the time when the appellant obtained the office copy of the order ought to be excluded in computing the period of limitation. I cannot accept that argument.
5. The principle upon which these cases are to be decided cannot be better stated than in a passage in Lord Buckmaster's judgment in the case of Pramatha Nath Roy v. Lee 68 Ind. Cas. 900 : 49 C. 999 : 49 I.A. 307 : 31 M.L.T. 193 : 37 C.L.J. 86 : 21 A.L.J. 118 : 27 C.W.N 156 : 43 M.L.J. 765 : (1922) A.I.R. (P.C.) 352 : 4 U.P.L.R. (P.C.) 103 : 18 L.W. 156 : (1923) M.W.N. 526. the passage being at page 1003 49 C. which is as follows "The learned Judges in the Appeal Court have held that in determining what is the requisite time referred to in Section 12, Sub-section. (2), of the Limitation Act the conduct of the appellant must be considered, and their Lordships think that in so determining they have rightly regarded the statutory provision. In their Lordships' opinion, no period can be regarded as requisite under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order."
6. In the present case, as I have already mentioned, the appellantapplied for a copy of the order on the 16th of May. At that time the order was not drawn up but the appellant had the opportunity of applying for the order being drawn up if the party in whose favour the order had been made did not apply within four, days from the date of the order so that at any time after the 17th or the 18th of May the appellant could have applied to the office for the drawing up of the order. He made no such application and, as I have already mentioned, it was the respondent who applied for the drawing up of the order on the 13th of June 1924 which was the last day of the month which is allowed under Ch. XXVI, Ruler, 27 of the High Court Rules.
7. Now, the explanation if it can be called an explanation, which has been given is that the appellant thought that there spondrent would take steps to get the order drawn up and that consequently he need not take any steps to do so himself. That argument has. been presented in other case? similar to this and it has always been rejected and must be rejected again today. If the appellant desires to appeal he must take "reasonable and proper steps to obtain a copy of the order".. Even though he has made an application for a copy of he order if it is found that the other side is not taking any seeps to get the order drawn up, it his duty to take steps to get the order drawn Up in order that an office copy may be supplied to the appellant which, it must be remembered, hp has to file with his memorandum of appeal.
8. Consequently, in this case, in my judgment, time has elapsed which need not have elapsed if the appellant had taken reasonable and proper steps to get the order drawn up and to obtain an office copy. Consequently, the appeal is out of time.
9. Then the learned Counsel relied upon. Section 5 of the Limitation Act, and applied to this Court to use the discretion which is conferred upon, it under Section 5. It is to be remembered, however, that before the provisions of that section can be applied the appellant must satisfy the Court that he had sufficient cause for not riling the appeal within the specified period. I have already stated that the only explanation for the delay which the learned Counsel has given on behalf of his client cannot be accepted. In my judgment he has not shown any sufficient cause for not filing the appeal in time For these reasons in my judgment this application must be dismissed with costs.
Walmsley, J.
10. I agree.