DAVE, J. - (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned District judge, Ganganagar, dated 20th October, 1961, dismissing her appeal as time-barred.
(2.) THE relevant facts for purposes of this appeal are as follows: The judgment and decree against which the defendant preferred the first appeal in the court of District Judge was given by the trial Court on the 26th of May, 1959. The defendant presented an application for obtaining the copies of the judgment and decree on the same day, that is, the 26th May, 1959. On the same day, 3rd June, 1959 was fixed as the date for delivery of the copies. The defendant's counsel did not appear in the court on the 3rd June, 1959 to obtain the copies. The delivery of the copies of the judgment and decree was obtained by him on the 30th June, 1959. The appeal was filed on the 25th July, 1959. The defendant requested the first appellate court to exclude the period from 26. 5. 59 to 30. 6. 59 as the time requisite for obtaining the copies of the judgment and decree, on. the ground that the summer vacation commenced from the 1st June, 1959 and so her counsel did not go to the court to obtain the copies on the 3rd June, 1959. The learned Judge observed that the appellant's counsel ought to have gone to the court on the 3rd June, 1959 which was fixed for delivery of the copies and that the period from the 3rd June 1959 to 30th June, 1959 could not be excluded or condoned. He, therefore, dismissed the appeal as time-barred. It is contended by learned counsel for the appellant that the. appellant's counsel presented an application for obtaining the copies on the very day on which the judgment was pronounced, that is, the 26th May, 1959. The court did not fix any date prior to the 1st June, 1959 from which the vacation commenced for the delivery of the copies. The court reopened on the 28th June, 1959 and on the 30th June, 1959 the appellant's counsel obtained the copies applied fori. It is pointed out that since the court reopened on the 29th June, 1959 the counsel could approach the court only on that day and not earlier. For certain reasons, he could not present himself on that day, but he obtained the copies on the next day, that is the 30th June, 1959. It is urged that the appellant may not be allowed to exclude 29th and 30th June, 1959 on account of her counsel's failure to be present in court on the 29th June, 1959, but the period upto the 28th June, 1959 ought to have been excluded since her counsel could not be expected to present himself in court during the vacation. It is further contended that although the office fixed the 3rd June, 1959 as the date for giving the copies, the appellant's counsel was under the impression that no copies could be given during the vacation and that the 3rd June, 1959 was fixed inadvertently. Thus, according to the learned counsel, if the period from 26th May, 1959 to 28th June, 1959 be excluded, the appellant's appeal was well within time. It is prayed that the order of the first appellate court should be set aside and the appeal should be remanded for rehearing. In reply, it is urged by learned counsel for the respondent that the court having fixed 3rd June, 1959 as the date for delivery of the copies, it was incumbent upon the appellant's counsel to present himself on that day when the copies were actually ready and, therefore, the period from 3rd June, 1959 to 28th June, 1959 could not be excluded under sec. 12 of the Indian Limitation Act (hereinafter to be referred to as the Act ). It is pointed out that, according to sec. 12 of the Act, only the time requisite for obtaining the copies of the judgment and decree Can be excluded and that the time requisite in the present case was the me upto 3rd June, 1959 and no more. It is also urged that the question as to what was he time requisite was one of fact and that fact having been decided by the first appellate court against the defendant, this Court should not interfere in second appeal. It is also argued that the word 'requisite' is a strong word and means 'properly required' as held by their lordships of the Privy Council in Jijibhoy N. Surty Vs. T. S. Chettyar (1 ). Lastly, it has been urged that the appellant's application under sec. 5 of the Act was also rightly dismissed by the first appellate court as there was no sufficient cause for condoning the delay. It is pointed out that the appellant had given no reasons why the appeal was not filed immediately after the copies were obtained on the 30th June, 1959. He should have explained each day's delay and given reasons for his failure to file it between 30th June, 1959 and 24th July, 1959. It would appear from what has been narrated above that the two questions which arise for determination by this Court are - 1. What time was requisite for obtaining the copies of the decree and judgment to be excluded under sec. 12 of the Act? 2. Whether there was sufficient reason for condoning the delay in case the appeal was filed beyond time? It may be observed that the question as to what is the time requisite for obtaining a copy of the decree or judgment or order would be a pure question of fact if the point involved relates only to the calculation of time etc. But if some question of principle is also involved, as in the present case, then it would be a mixed question of law and fact. It cannot be laid down as a hard and fast rule that the "time requisite" would in every case be a pure question of fact. Whether the question is purely one of fact or a mixed question of law and fact would depend upon the facts and circumstances of each case. In the persent case, the first appellate court did not apply its mind about the consequences of the general notification whereby the courts were ordered to be closed for summer vacation and, therefore, the question relating to the requisite time for obtaining the copies is not purely one of fact. It may next be observed that the word 'requisite', as held by their lordships of the Privy Council in Jijibhoy N, Surty's case, is a strong term. It may be regarded as meaning something more than the word 'required'. It means properly required and throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his fault. We have, therefore; to see as to what time was requisite for the appellant to obtain the copies in the present case, If the courts were not closed for summer vacation on the 1st June, 1959 and if 3rd June, 1959, were a working day and if in those circumstances it were fixed for delivery of the copies, then, I would not have had the least hesitation in agreeing with the learned counsel for the respondent that the time requisite was only from 26th May, 1959 to 3rd June, 1959 and the appellant could not claim the period from 4. 6. S9 to 25. 6. 59, as the time requisite for obtaining the copies. As held in Hatin Vs. Osi Ulla (2), cited by the respondent's learned counsel, if the applicant does not appear and ask for the copy on the date on which, he is told, the copy of the decree would be ready, any further delay is due to his own fault and that period cannot be considered to be time requisite for obtaining the copy, unless there are some special reasons why the applicant could not obtain the copy on the day on which it was ready. 7. It is, however, common ground between the parties that the courts were closed for vacation from 1. 6. 59 to 28. 6. 59 and so the question is whether it was incumbent upon the appellant's counsel to attend the court on 3rd June, 1959 and obtain the delivery. It is urged by learned counsel for the respondent that his client, that is the plaintiff, had also applied for copies and that he got the copies on the 4th June, 1959, and if he could get the copies there was no reason for the appellant's counsel not to obtain the copies on 3rd June, or 4th June, 1959. In reply, it has been pointed out by the appellant's learned counsel that the plaintiff had applied for urgent copies and he was anxious to get them early and so he might have gone to the court on 4th June, 1959, but the appellant's learned counsel knew on account of the notification of the High Court dated the 28th April, 1959 that the Civil Courts will remain closed for 28 days from 1st June, to 28th June, 1959 and so he thought that 3rd June, 1959 was wrongly marked by the office and it would be useless to go to the court when it was closed. I think that there is much force in the contention of the appellant's learned counsel. He has shown to this Court a notification dated 28th April,1959 whereby it was notified that all civil courts will remain closed for 28 days from 1st June to 28th June, 1959. both days inclusive. Perhaps it was on account of this notification that the appellant's learned counsel presented an application for obtaining the copies on the very day on which the judgment was pronounced. Since no date was fixed for delivery of the copies before the commencement of the vacation, he had reasons to believe that the copies could not be available during the vacation, as the court was closed and it was useless to attend it. 1 appears from the application, which was filed by the appellant's learned counsel for copies, that 3rd June, 1959 was noted thereon, but it does not appear if the appellant's learned counsel was specifically told that the copies would be ready for delivery on that date in spite of a notification to the effect that the civil courts would be closed for summer vacation. In the absence of a specific order to the contrary, learned counsel for the appellant was not unjustified in believing that the copies would be available only after the court had re-opened. The court reopened on the 29th June, 1959 and he obtained the copies on the very next day, that is 30th June, 1959, 29th June, 1959 cannot be excluded under sec. 12 of the Act, because the appellant's learned counsel gave no reasons as to why he did not attend the court on that day. But, in my opinion, the period from 26th May, 1959 to 28th June, T959 was the time properly required for obtaining the copies in the facts and circumstances of the case. In Hatim Vs. Osi Ulla, on which reliance has been placed by the respondent's learned counsel, the court was not closed on the day fixed by the court for delivery for the copies. Learned counsel for the respondent has also referred to Kadir Mohiddeen Sahib Vs. Abubakkar Sahib (3 ). In that case the period of vacation was not deemed to be requisite for obtaining the copies, but that was on account of the fact that in accordance with the rules of the High Court a notification was published that arrangements would be made for granting copies during the adjournment of the court, and inspite of the publication of that notification and special arrangements made in pursuance thereof, the party failed to take delivery of the copy on the date which was fixed during the vacation. It has already been pointed out above that in the present case I have not been referred to any order of the District Judge to the effect that he had made special arrangements for the preparation and delivery of the copies during the vacation. To my mind, the learned District Judge was unduly harsh with the appellant who had taken good care to apply for the copies on the very day when the judgment was pronounced. If the court had arranged for the delivery of the copies before the commencement of the vacation, or if it had pointedly told the appellant's counsel that the copies would be delivered to him on the 3rd inspite of the vacation or if he had put up a notice that he had made arrangements for the delivery of the copies during the vacation even though the courts were to remain closed, there would have been proper justification to hold that the time was not requisite till the end of the vacation ; but when there was no such general or special order and the clerk had only noted 3rd June, 1959 on the application as a matter of routine, the appellant's counsel was not unjustified in believing that the date was marked inadvertently and he need not go to the court which was ordered to be closed by the said notification. The respondent no doubt obtained the copies on the 4th June, 1959, but that was because he had filed an urgent application and so the clerk concerned might have informed him specifically that the copies would be delivered on that day. There is no evidence on record if the appellant's counsel was specifically informed about 3rd June, 1959 by any responsible officer of the court. It is urged by learned counsel for the respondent that when the appellant's counsel had obtained the copies on 30th June, 1959 there was still time for him to file the appeal up to 4th July, 1959, but he waited and filed it on 25th July, 1959 and he has not accounted for this period between 4th July and 25th July, 1959. Learned counsel is correct to the extent that the appellant could have filed the appeal up to 4th July, 1959, but it appears that the appellant was under the bonafide impression that the period upto 28th June, 1959, could be excluded under sec. 12 of the Act and that seems to be the main reason that the appeal was not filed before 4th July, 1959. Since I have held, as discussed above, that the period from 26th May to 28th, June, 1959 was requisite for obtaining the copies of the judgment and decree, the appeal filed on 25th July, 1959 was well within time and should not have been dismissed by the learned District Judge. Moreover, it appears from the judgment of the learned District Judge that he did not take into consideration the application which was filed by the appellant under sec. 5 of the Act. It may be observed that even if I were to bold that the period from 4th June, 1959 to 28th June, 1959 was not strictly necessary for obtaining the copies, the appellant would have been given benefit of sec. 5 since she was definitely missed by the notification to the effect that the courts were to remain closed from 1st June to 28th June, 1959 and there was no specific order that the Copying Department would remain open during the vacation. Explanation to sec. 5 of the Indian Limitation Act lays down that the fact that the appellant or applicant is misled by any order of the High Court in ascertaining or computing the period of limitation would be sufficient cause for giving the benefit of the section. The order bout the vacation was admittedly issued by the High Court. Thus, even if it be assumed for the sake of argument that the appellant's case is not covered by sec. 12 of the Act, she was entitled to the benefit of sec. 5 of the Act. The appeal is therefore, allowed, the judgment and decree of the learned District Judge dated the 20th October, 1960 are set aside and the case is remanded to the learned District Judge with direction to decide the first appeal on merits. The costs in this Court will abide the decision of the appeal in the Court of District Judge. .;