Patna High Court
Deoki Lal And Ors. vs Ramanand Lal on 16 August, 1920
Equivalent citations: 59IND. CAS.179, AIR 1921 PATNA 365
JUDGMENT Dawson Miller, C.J.
1. This application comes before us upon a reference to the Bench to determine a question of limitation. The memorandum of appeal was presented for filing on the 2nd July this year. The judgment from which it is sought to appeal was delivered on the 28th May. By the rules of this High Court, the appeal being one from the decision of a Single Judge brought under Clause 10 of the Letters Patent, should have been presented within 30 days of the date of the judgment appealed from. That provision is contained in Chapter VII, Rule 2, of the Patna High Court Rules. The presentation of the memorandum of appeal was, therefore, clearly out of time as provided by that rule. If is contended, however, that, under Section 12 of the Limitation Act the time requisite for obtaining a copy of the judgment from which it is sought to appeal ought to be deducted from the limitation period. Section 12 of the Limitation Act provides for certain deductions in computing the period of limitation prescribed for appeals and certain other application, and Clause (3) of Section 12 provides that where a decree is appealed from or sought to be reviewed the time requisite for obtaining a copy of the judgment on which it is founded shall be excluded. The judgment which was delivered on the 28th May was apparently not signed until some time later. On the 1st June the appellant applied in the ordinary course for a copy of the judgment and it was not until the 17th that he was notified by the office of the requisite number of folios and stamps. On the 22nd June he supplied part of the requisite folios and afterwards supplied the rest on the 2 to and on the 3 to obtained a copy of the judgment and, two days later, as already stated, he presented his memorandum of appeal to the Registrar of this Court.
2. The appellant contends that, at all events, the time between the 1st June, when he made his application for a copy, and the 17th June, when he was notified by the office of the requisite number of folios, should be deducted from the limitation period and, if he is right in this contention, it follows that his appeal was presented in time. The first point which it is necessary to refer to in connection with the application of Section 12 of the Limitation Act is, whether in a case like the present where it is not necessary to file with the memorandum of appeal a copy of the judgment appealed from, the time taken in obtaining that copy ought to be deducted from the limitation period at all. There have been certain decisions, many years ago, in the Allahabad High Court in which the view was taken that the section should not be applied except in cases where it was necessary to file the copies obtained with the application or memorandum of appeal. The words of the section themselves do not limit its application to cases in which it is necessary to file the documents obtained together with the memorandum of appeal, and, for myself, I think that there is much force in the argument that the section was not intended to be limited to that class of cases only. It is not necessary, however, for the purposes of this decision, to decide that question because, if the view which I take of the case is right then Section 12 of the Limitation Act has no application to the present circumstances. By Section 29 it is provided that: "Nothing in this Act shall affect or Alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India." The provisions of that section seem to me merely to give expression to a principle which has already been recognised by decisions of the highest tribunals, namely, that where there is a Statute or a special law laid down regarding particular and special Bases the Legislature did not intend by an enactment of general import to interfere with the provisions already made by an earlier enactment in the special cases, and there is a further principle of the construction of Statutes of a similar kind that, where there is a Statute of general application followed by a subsequent enactment applying to special cases, one must look and tee whether it was the intention of the special enactment to include or to exclude the general provisions laid down by the general enactment. For that purpose it is a very useful guide to consider whether the special enactment does in itself provide what has been called a code relating to the questions so far as they concern the special cases which it had to deal with. But it does not seem to me that the principle must be confined merely to cases in which it can be said that there is in fact a special code dealing with the whole subject. If it appears that, by the special law, it was not the intention to incorporate the provisions of the general law but to exclude them, then it is obvious that, applying the ordinary canons of construction to such a case, the Courts ought not to bold that the Statute of general import should be incorporated in the special law. It, therefore, becomes necessary to consider the provisions of Clause 2 of Chapter VII of the High Court Rules, which prescribed the period of limitation in appeals under Clause 10 of the Letters Patent. This rule provides that, "Every appeal to the High Court under Clause 10 of the Letters Patent shall be presented to the Registrar within 30 days from the date of the judgment appealed from unless a Bench in its discretion on good cause shown shall grant further time. The Registrar shall endorse on such memorandum the date of presentation and, after satisfying himself that the appeal is in order and within time, shall cause it to be laid before a Bench for orders at an early date. It need not be accompanied by a copy of the judgment appealed against. But if it is admitted the appellant shall, within 10 days from the admission of the appeal, file a typed copy of the judgment for the use of the Court." Now, reading that rule it seems to me clear that the intention of the framers of that rule was to prescribe an absolute period of limitation of 30 days and the only case in which that period could be extended was a case which a Bench in its discretion considered should be extended upon good cause being shown. Any of the provisions in the Limitation Act applying to the extension of the periods of limitation prescribed therein might appear, apart from the Limitation Act itself, to furnish good reason to a Court, which had to decide the matter in its discretion for granting an extension of that period and, therefore, it seems to me that the intention was that in all cases under that rule the question of granting or refusing farther time was to be within the discretion of the Court upon good cause being shown and that the general provisions of the Limitation Act should not be binding on the Court. In fast, it may be said that the provisions of Rule 2 of Chapter VII are even more comprehensive than the provision laid down in the different sections of the Limitation Act, but it does not necessarily follow that because certain provisions are laid down in the Limitation Act providing for an extension of limitation in certain cases that in all such cases good cause would necessarily be shown.
3. Having arrived at the conclusion that Section 12 of the Limitation Act is excluded by the operation of Rule 2, Chapter VII of the High Court Rules, the only question for determination is, whether, in the particular circumstances of this case, any good cause has been shown for extending the limitation period. It is quite true that when the appellant applied for a copy of the judgment it took from the 1st to the 17th of June before he was notified of the necessary folios for the copy of the judgment required, and, therefore, in the ordinary course, that period would under the Limitation Act be deducted and possibly might in a case of this sort also be deducted, but it was not necessary for him actually to file a copy of the judgment with his memorandum of appeal, and if he had been diligent and had supplied the necessary folios and stamps as soon as he was notified instead of, as he did, partly on the 22nd and the balance on the 28th, he would have had ample time in which to consider, if it was necessary for him to consider, the effect of the judgment after seeing it actually in writing." It seems to me, therefore, that if his delay in filing the memorandum of appeal was due in any way to the fact that he did not obtain a copy of the judgment early enough, that was entirely due to his own dilatoriness in not filing the requisite folios at the time when he ought to have done so. As I have already observed, the actual possession of the document in question was not necessary for the purpose of filing his appeal. He must have known what the effect of the judgment was and in all probability could have filed his memorandum of appeal without actually having a copy of the judgment before him; but, even if it were necessary for him to have it before filing his memorandum of appeal, he wasted a period of about 10 days and I do not think it can be said in the present case that any special cause has been made out why the period should be extended. In my opinion, therefore, the memorandum of appeal should be rejected. The value of the appeal in this case is small. There is no special provision for assessing the costs of the respondent. His costs cannot have amounted to very much and, therefore, we assess a sum of two gold mohurs, to include hearing fee and any other costs he may be entitled to.
Mullick, J.
4. I agree.