MT. MAJIDAN Vs. DALMIR KHAN AND ANR.
HIGH COURT OF PUNJAB AND HARYANA
Dalmir Khan And Anr.
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Kapur, J. -
(1.) THIS is an appeal similar to Regular S.A. No. 535 of 1947 and is directed against a judgment and decree of the same learned Senior Subordinate Judge of Ludhiana who in this case also dismissed the appeal of the Appellant before him as being barred by time.
(2.) IN this case the judgment of the trial Court was delivered on 3 -8 -1946 and the appeal was filed on 8 -10 -1946 in the court of the Senior Subordinate Judge, Ludhiana. As the original judgment was of the Subordinate Judge, Samrala, an appln. for copies was made on 5 -8 -1946 at Samrala. This appln. was returned on 21 -8 -1946 and was re -filed in Ludhiana on 22 -8 -1946 and the copies were ready on 17 -9 -1946. In this case also there is the affidavit and the statement of the Copying Clerk that an appln. for copies was made to the Copying Agency at Samrala, and for reasons that I have given in Regular S.A. No. 535 of 1947 the time which was spent in trying to obtain copies at Samrala must be allowed to the Appellant. Another complication has arisen in this case because the copies were applied for not by the Appellant herself but another person and the learned Judge has held that the time spent in obtaining such copies cannot be allowed under Section 12, Limitation Act. This finding of the learned Judge in my opinion appears to be erroneous. In Section 12(2), Limitation Act it is provided:
In computing the period of limitation proscribed for an appeal...the time requisite for obtaining a copy of the decree...appealed from or sought to be reviewed, shall be excluded.
There is nothing in Section 12 which limits the period to that time alone which is taken by the Appellant himself in obtaining such a copy. The time which can be excluded is the time taken for the copy which is filed. As a matter of fact, when I was at the Bar I used to notice that copies were always applied for by our clerks. The Appellants were neither signed by the advocates or pleaders or the clients, and to my knowledge such an objection was never raised that the copy has not been applied for by the client himself or his authorised agent. In Chandu v. Mast Ram, A.I.R. 1934 Lah. 135 : 9149 I.C. 1127), Bhide J., held that the appln. For copies need not be made by the Appellants. In person, and the same was held in Ram Kishun v. Kashi Bai, 29 ALL. 264 : (4 A.L.J. 152) and Aminuddin Sahib v. Pyari bi, 43 Mad. 633 : (A.I.R.1920 Mad. 159). In the letter cuse a Division Bench of the Madras H.C. held that an Appellant who is required to file with his memorandum of appeal a copy of the decree appealed from, may file a copy obtained by another party; and under Section 12(2), Limitation Act, he is entitled to a deduction of time taken to obtain that copy. I am in respectful agreement with the rule laid down in these various cases and I am of the opinion that a copy which has been obtained by a person other than the Appellant and is then used by the Appellant for the purposes of filing an appeal does give to the Appellant the right under Section 12(2), Limitation Act, to deduct the time taken in obtaining that copy.
(3.) IN the result, this appeal is allowed. The Appellant will have her costs in this Court. The appeal must, therefore, be remanded under Order 41, Rule 23, Code of Civil Procedure to the learned Senior Subordinate Judge for disposal in accordance with law. The parties have been directed to appear before the learned Senior Subordinate Judge, Ludhiana, on 11 -12 -1950. Court -fee on appeal be refunded to the Appellant.;
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