BHANDARI, J. - (1.) IN this Civil Second Appeal, the only question for decision is - 'whether the appeal filed by Thakur Madho Singh plaintiff against the defendants was rightly rejected by the lower appellate court on the ground that it was barred by limitation. ' The Civil Judge, Balotra dismissed the suit of the plaintiffs for the recovery of Rs. 6,218/3/0 on 9-12-1958. Against the judgment and decree of the trial courts the plaintiffs filed an appeal in the court of the District Judge, Balotra on the 27th of January, 1959. It may be mentioned that 25th and 26th January 1959 were holidays. The defendant took an objection that the appeal was barred by time as there were laches on the part of the plaintiff in obtaining copies of the judgment and decree of the trial court. For appreciating this contention the following facts may be mentioned. Daulatram, who styled himself as Karadar of the plaintiff filed an application in the trial court on the 20th in the form for obtaining the copies of the decree and the judgment along with one other document. Along with this application he submitted sheets of stamped copying paper which were of Rs. 6/- in value. The clerk in the Copying Department made a report on 22-12-1958 that sheets of the value of Rs. 2/8/- more may be ordered to be filed. On that day, the applicant was not present in the Copying Department and a notice to the applicant was given in Form F. 19 by affixing it on the notice board of the court as laid down in Rule 225 (4) of the General Rules ( Civil ) 1952 (hereinafter called 'the Rules' ). This notice was affixed on the notice board on 23-12-58. The court remained closed from the 25th December, 1958 to 1-1-1959 on account of Winter vacation. On 3-1-1959 Daulat Ram applicant submitted an application dated 2-1-1959 stating that he had to deposit sheets of stamped paper of the value of Rs. 2/6/- but such sheets were not available and therefore further time be granted to him to make up the deficiency or he may be directed to pay the amount of Rs. 2/6/-in cash. It so happened that on 3-1-59 Daulat Ram deposited the sheets of stamped copying paper of the required value. To this effect a report was submitted by the Copying Department. On that very date in the presence of the applicants 6-1-59 was fixed for delivery of the copy of the aforesaid document. Copies were ready on 6-1-59 but the applicant took the delivery on 7-1-59. There is no doubt that if the whole time from the 20th December, 1958 to the 6th of January, 1959 be considered to be the time requisite for obtaining copies of these documents, the appeal of the plaintiff was within limitation. It was, however, contended before the lower appellate court that Daulat Ram applicant should have submitted the sheets of stamped copying paper on 2-1-59 and not on 3-1-1959, and as such, the whole of the period from 25-12-58 to 2-1-59 could not be taken to be the period requisite for obtaining copies of these documents. The plaintiffs applied under sec. 5 of the Limitation Act for extension of time for filing the appeal and submitted an affidavit of Daulat Ram that on 2-1-1959, the sheets of stamped copying paper were not available and so he wanted to make an application on that very day to the court but that application could not be made that day and was filed on 3-1-1959 but later on the sheets became available. A counter-affidavit was filed on behalf of the defendants that sheets of stamped copying paper were available even on 2-1-1959. The lower appellate court took the view that the plea of the plaintiff that sheets of stamped copying paper were not available on 2-1-59 was a belated one and appeared to be not true. IN taking this view, the lower appellate court also remarked that if Daulatram Kamdar of the plaintiff-appellant could not get the copying folios etc. on 2-11-59, he should have made an application to the court on 2-1-59 and not on 3-1-59 and the filing of the required stamped copying paper on 3-1-59 showed that they were available with the stamp vendor. Taking this view of the matter on facts, the lower appellate court held that in the circumstances of the case, the plaintiffs were not entitled to exclude the period from 22-12-58 to 2-1-59 and the appeal was barred by time. The appeal was, therefore, dismissed. After the filing of this appeal, Madhosingh, plaintiff-appellant, died and his legal representatives were borough on record.
(2.) LEARNED counsel for the appellants has contended that the lower appellate court was wrong in holding that the period from 22-12-58 to 2-1-59 should not be excluded for filing the first appeal before the District Judge, Balotra. The contention of the learned counsel is that Daulatram Kamdar of the plaintiff was doing everything possible to obtain the copies of the documents. He deposited the sheets of the value in excess of the minimum value as prescribed in Rule 225 (2 ). Then it is contended that as soon as he came to know on 2-1-59 that he had to make up the deficiency, he made an application for extension of time on 3-1-59. But fortunately on that day, he was able to procure the deficient sheets and made up the deficiency and obtained the copies of the decree and the judgment in due course. Lastly, it is contended that the Copying Department instead of dismissing the application of the Kamdar of the plaintiff on 2-1-59 kept it pending up to 3-1-59 and after the deficiency had been made up, passed an order on that very application that copies will be supplied on 6-1-59 and as such, it must be taken that the court condoned the delay in filing the deficiency sheets of stamp copying paper and the plaintiffs are entitled to exclude the entire period from 25-12-58 to 6-1-59 taken in obtaining the copies. In this connection, it is also pointed out that had the application of the plaintiffs been rejected on 22-12-58, the plaintiffs would have made another application for obtaining copies as there was still limitation for filing the appeal and they were seriously prejudiced when the Copying Department adopted the course of granting copies on the application filed on 20-12-58. Learned counsel for the defendant-respondents has supported the judgment of the lower appellate court and has urged that it has rightly been held that the appeal filed before it was barred by time. After giving earnest consideration to the matter, I am of the opinion that the view taken by the lower appellate court is not correct. The plaintiff's case is that Daulat Ram Kamdar could not make up the deficiency pointed out by the office as no sheets were available on 2-1-59. On 3-1-59 he made the application praying for extension. To this effect an affidavit has also been filed. The lower court rejected the affidavit taking the view that the affidavit had been filed after considerable delay i. e. on 8-8-1959. In the circumstances of the case, this is not a good reason for disbelieving the affidavit as it was filed soon after the controversy about delay in presenting the appeal arose. Daulatram is corroborated in what he has stated by the contents of the application dated 2-1-59 filed on 3-1-59 in the Copying Department. Another circumstance that has been taken notice of by the learned Judge of the lower appellate court for rejecting this plea of the plaintiff is that sheets of stamp copying paper were available on 3-1-59 and they might have been available on 2-1-59 as well. This argument also does not appeal to me. Had the same been available on 2-1-59, I do not think that there is any sound reason why Daulatram would not have filed them. Learned Judge of the lower appellate court has relied on Gondaji vs. Kisan (l) for the view that when the applicant makes up the deficiency not on the date immediately following holidays but on the succeeding day, he is not entitled to the credit of the period of the holidays. But on facts, I find that there was sufficient reason for Daulatram for not making up the deficiency on 2-1-1959 and this ruling is not applicable. There is yet another aspect of the matter. The provision of sub-rule (3) of R. 225 is that if an applicant for obtaining copies does not make up the deficiency within the time to be fixed for that purpose, the application is to be rejected. This was not done in this case. Instead, the application was kept pending upto 3-1-59 and on that day Daulatram applicant in this case made up the deficiency and copies were granted on that application. There is enough force in the contention of the learned counsel for the appellant that had the application of Daulatram Kamdar of the plaintiffs been dismissed on 2-1-59, they would have taken appropriate steps to file the appeal within time by applying afresh for the copies, as 30 days for filing their appeal had not expired even then. It appears that the Copying Department condoned the delay of one day and it was ordered on 3-1-59 that copies will be ready for delivery on 6-1-59. What is the implication of this order. The implication is that the original time of three days granted for making up the deficiency was enlarged upto 3-1-59. It cannot be denied that this could have been done under 148 C. P. C. which provides that where any period is fixed or granted by the court for the doing of any act, the Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted might have expired. This is a case of implied extension of time and it is not seriously disputed that implied extension may be inferred when a court accepted performance beyond the time granted by it. An order passed under sec. 148 C. P. C. is not appealable. It is, however, contended by the learned counsel for the appellants that it is for the court before whom the appeal is presented to to see that the time for obtaining copies sought to be excluded is requisite or not and in examining this question, the court may examine the question how far an appellant had been diligent in obtaining the copies. Even so, except in exceptional cases, the appellate court should take it that in the matter of granting time for making up deficiencies, the discretion exercised by the Copying Department was properly exercised. If such discretion is to be questioned without justifiable reasons, there may arise unexpected complications for an appellant in computing limitation for filing an appeal. For example, in this case, in both the copies in the seals affirmed u/r. 229, the date of presentation of the application was mentioned as 20th December, 1959, and the date on which copies were ready for delivery was mentioned as 6th January, 1959. Normally, the appellant or his counsel was to take these dates as correct and to act on the basis of these dates for computing limitation for filing the appeal. On the basis of the dates given on the endorsements, the appeal was within limitation. These endorsements are normally the basis for calculating the period to be excluded for obtaining the copies under sec. 12. It will be neither proper nor desirable if these endorsements are allowed to be questioned without there being very sound reasons for doing so. For all these reasons, I am of opinion that the learned District Judge, Balotra was wrong in dismissing the appeal filed by the plaintiffs in his Court on the point of limitation. This appeal is, therefore, accepted, the judgment and decree of the District Judge, Balotra dated 30-9-1959 are set aside and the case is remanded to that court for disposal in accordance with law. Costs in the appeal shall abide the result. A cross-objection has been filed by the defendant respondents that they had not been allowed costs in the lower appellate court. This cross objection automatically fails and is therefore dismissed. .;