PRITAM SINGH Vs. KHUSHI LAL

JUDGEMENT

(1.) The facts leading upto the filing: of the present first appeal, and the finding on the preliminary objection of the plaintiff -respondent relating to court -fee, are contained in my judgment dated December 1, 1950 reported as Pritam Singh v. L. Khushi Lal, A. I. R. (38) 1951 Himachal Pradesh 52. The learned counsel for the parties have now argued before me the other two preliminary objections and the appeal on merits. The preliminary objection that this appeal is not cognizable by this Court has no force inasmuch as the decree under appeal passed by the Senior Subordinate Judge of Kasumpti, being valued at more than Rs. 5,000/ -, appeal from it lay to this Court. The other objection is that the appeal is time -barred. The final decree under appeal was passed on 17 -3 -1950, application for copy of the decree was made by the appellant on 29 -3 -1950, the copy was ready on 24 -4 -1950 and it was taken delivery of on 1 -6 -1950, and the appeal was filed on 27 -7 -1950. The question is, what was the time requisite for obtaining the copy of the decree which should be excluded under section 12, Limitation Act, in computing the period of limitation of 90 days from the date of the decree under Article 156 of that Act. The application for copy was filed well within time on 29 -3 -1950. If the whole of the period from the date of the filing of the application to 1 -6 -1950, when delivery of copy of the decree was taken, is to be excluded, the appeal was filed within time. If, on the contrary, the time requisite is to be computed till only 24 -4 -1950, when the copy was ready, the appeal would be time -barred by 16 days,

(2.) The copying department in Himachal Pradesh is not under the judiciary but under the executive, and the rules relating to the supply of copies are contained in the Himachal Pradesh Copying Agencies Manual. The relevant provisions are contained in rules 1.30 and 1.39. One of these rules is that an ordinary copy is to be ready by the third working day. In this case the copy was not ready until 26 days after the filing of the application. By another rule the applicant is required to state when making his application whether he proposes to take delivery of the copy in person when it is ready, or whether he wishes the copy to be forwarded to him by post. If the applicant be not present when first called to receive the copy, the copy is to be kept pending for delivery for ten days, after which period the application and the copy are to be filed and the copy is not to be issued to the applicant without his filing a fresh application bearing a two anna court -fee stamp. No such fresh application appears to have been taken from the defendant -appellant in this case presumably because the copying department was aware of its own remissness in having prepared the copy with such delay. There is no provision in the rules as to how is the applicant to know when the copy would be ready for delivery in case the ordinary time limit of three days is exceeded. In the circumstance, it is too much to expect that where as many as 26 days are taken to prepare a copy the applicant should continue to visit the copying department during this period to ascertain when the copy was likely to be ready. The hardship is all the greater in a hilly State like the present. By another rule a copy, which has remained, unclaimed for ten days and has been filed as aforesaid, is required at the close of the month to be dispatched to the applicant by V. P. P. This was also not done in the present case. It is manifest therefore that the delay in the actual delivery of the copy in this case has not been caused on account of any negligence or default on the part of the appellant, but was due to the carelessness of the copying department in taking as long as 26 days in preparing the copy and to the omission on their part to give any information to the appellant as to the date on which he should come to take delivery of the copy. That being so, the entire period from 29 -3 -1950 to 1 -6 -1950 must be computed in the present case as the time requisite for obtaining the copy of the decree under section 12, Limitation Act, and the appeal was therefore filed within time. Sarkhara v. Nawab, 13 Ind. Cas., 850 (Lah), and Fouda Uran v. Ganpat Ram, A.I.R. (7) 1920 Pat. 278.

(3.) Coming now to the merits of the appeal, the grounds on which the judgment of the Senior Subordinate Judge of Kasumpti is assailed are only two, as stated in my judgment dated December 1, 1950. Those grounds are: (1) that that Court had no jurisdiction to pass the decree, and (2) that in accordance with Form No. 6 in Appendix D of Schedule I. C. P. Code, the final decree should not contain the costs awarded in the preliminary decree The latter ground has no force since the costs of the preliminary decree have not been shown in the final decree under appeal. That the plaintiff -respondent would be entitled to those costs has no doubt been stated in the final decree, but that is in conformity with paragraph 2 of Form No. 6 itself.