# 4R ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR v. MIS. BEST & CO

- **Citation:** [1966] Supp. 1 S.C.R. 46
- **Court:** Supreme Court of India
- **Decided:** 1966-03-25
- **Case number:** Civil Appeal No. 275 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4r-addl-collector-of-customs-calcu1ta-anr-v-mis-best-co-3878
- **Pages:** 9

## Headnote

4R
ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR.
v.
MIS. BEST & CO.
March 25, 1966
fK. SUBBA RAO, V. RAMASWAMI AND J. M. SHELAT, JJ.]
Limitation Act (9 of 1908), s. 12(2) and (3)-Application for leave
!<' appeal-Rules of High Court permitting filing without copies
of
1udgment or order-Time taken for obtaining copies-If could be excluded in computing limitation.
The respondent's petition under Art. 226 challenging an orJer of
the appellants (customs authorities) was ordered by the High Court.
The appellants immediately applied for cert:fied copies of the judg·
ment and order. Th<·y filed an application for leave, to appeal to
this Court against the order of the High Court, along with a certified copy of the judgment which alone was furnished to them by
then; but the application was beyond the period of limitation even
after excluding the time taken for obtaining the certified copy of the
judgment. The certified copy of the order was furnished to the appellants thereafter, but it was not annexed to the application for leave
to appeal. The High Court dismissed the application on the ground
!hat it was barred by time.
In appeal to this Court. the appellants contended that they were
entitled under s. 12(2) of the Limitation Act to exclude the time
taken in obtaining the certified copy of the order, while the respondent sought to support t.he dismissal on the grounds that: (!) the application for leave to appeal was competent without annexing either
the certified copy of the judgment or order under the Rules of the
High Court, and therefore, it cannot be said that the time taken for
obtaining the copy of the judgment or order was requisite, and hence.
could not be excluded under s. 12(2) or (3), and (ii) the prescribed
F'l'.>rm for an application for leave prohibited the annexing of a copy
of the judgment or order.
HELD: (i) Under s. 12(2) and (3) of the Limitation Act, the time
for obtaining the crrtifif'd copif's of the judg~ent nnd the decree or
the order must bo excluded while computing the peri<ld of limitation.
The Legislature allO\\.t'd lhe exclusion to enable a party who intends
to file an appeal to examine the decree or the judgment before he
launches a further proceeding. The provision does not depend upon
whether the Civil Procedure Code or Rules of a Court permit a petitioner to file an application for leave to appeal with or without "
copy of the jud~ment or order or decree, and where the Rules so
permit. whether he has annexed such a copy to his application or
not. f52 H-53 Bl
Surty v. Chettyar, L.R. 55 I.A. 161, applied. Gangaram v. Beharilal A.LR. 1952 Bhopal 39 and Abdul Aziz v. Jai Ram. A.I.R. 1951 H.P.
fn, overruled.
(ii) The rule ond the Form prescribed do not lay down any mandatory direction that a copy either of the order or of the judgment
shall not be annexed. f51 B-Cl
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COLLECTOR OF CUSTOMS V. BEST & CO. (Shcfr•t, J.)
47

## Text

4R
ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR.
v.
MIS. BEST & CO.
March 25, 1966
fK. SUBBA RAO, V. RAMASWAMI AND J. M. SHELAT, JJ.]
Limitation Act (9 of 1908), s. 12(2) and (3)-Application for leave
!<' appeal-Rules of High Court permitting filing without copies
of
1udgment or order-Time taken for obtaining copies-If could be excluded in computing limitation.
The respondent's petition under Art. 226 challenging an orJer of
the appellants (customs authorities) was ordered by the High Court.
The appellants immediately applied for cert:fied copies of the judg·
ment and order. Th<·y filed an application for leave, to appeal to
this Court against the order of the High Court, along with a certified copy of the judgment which alone was furnished to them by
then; but the application was beyond the period of limitation even
after excluding the time taken for obtaining the certified copy of the
judgment. The certified copy of the order was furnished to the appellants thereafter, but it was not annexed to the application for leave
to appeal. The High Court dismissed the application on the ground
!hat it was barred by time.
In appeal to this Court. the appellants contended that they were
entitled under s. 12(2) of the Limitation Act to exclude the time
taken in obtaining the certified copy of the order, while the respondent sought to support t.he dismissal on the grounds that: (!) the application for leave to appeal was competent without annexing either
the certified copy of the judgment or order under the Rules of the
High Court, and therefore, it cannot be said that the time taken for
obtaining the copy of the judgment or order was requisite, and hence.
could not be excluded under s. 12(2) or (3), and (ii) the prescribed
F'l'.>rm for an application for leave prohibited the annexing of a copy
of the judgment or order.
HELD: (i) Under s. 12(2) and (3) of the Limitation Act, the time
for obtaining the crrtifif'd copif's of the judg~ent nnd the decree or
the order must bo excluded while computing the peri<ld of limitation.
The Legislature allO\\.t'd lhe exclusion to enable a party who intends
to file an appeal to examine the decree or the judgment before he
launches a further proceeding. The provision does not depend upon
whether the Civil Procedure Code or Rules of a Court permit a petitioner to file an application for leave to appeal with or without "
copy of the jud~ment or order or decree, and where the Rules so
permit. whether he has annexed such a copy to his application or
not. f52 H-53 Bl
Surty v. Chettyar, L.R. 55 I.A. 161, applied. Gangaram v. Beharilal A.LR. 1952 Bhopal 39 and Abdul Aziz v. Jai Ram. A.I.R. 1951 H.P.
fn, overruled.
(ii) The rule ond the Form prescribed do not lay down any mandatory direction that a copy either of the order or of the judgment
shall not be annexed. f51 B-Cl
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COLLECTOR OF CUSTOMS V. BEST & CO. (Shcfr•t, J.)
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CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 275 of
1966.
Appeal by special leave from the order dated August 17, 1965
of the Calcutta High Court in an application for leave to appeal
to this court in Appeal No. 254 bf 1963.
WITH
Civil Miscellaneous Petition No. 2195 of 1965 (Petition for
Condonation of delay).
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
A. K. Sen and D. N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. On March 31, 1959 the respondents obtained a
licence to import certain machinery from West Germany.
The
import licence contained particulars of the machinery to be imported and inter alia stated that its value would be "C.I.F. value
of Rs. 45,000". One of the conditions upon which the licence
was issued was that:
"the above application is accepted and import
licence is granted having quantity and value as the limiting factor and is not valid for clearance if the actual
value of any item exceeds the C.I.F. value indicated in
the licence by more than five per cent."
The machinery arrived at the port of Calcutta sometime in
July 1960 and was allowed to be cleared on the bill of entry submitted on behalf of the respondents. The bill of entry showed
the C.I.F. value of the machinery at Rs. 44,843.61 nP. The cus-
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toms authorities thereafter assessed the duty payable on the said
machinery and the duty so assessed was paid by the respondents.
On May 6, 1961, in consequence of certain information received
by the authorities a search was made of the business premises of
the respondents and also of Stahlumon & Co .. Ltd., the agents of
the exporters.
As a result of the search certain documents and
papers were seized by the customs authorities. On June 19120,
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1961 a notice was served upon the respondents calling upon them
to show cause why action should not be taken against them under
s. 167(8) of the Sea Customs Act, 1878. The notice alleged that
the respondents were guilty of illegal import of goods worth
Rs. 6,730.74 nP, that being the excess value of the goods permitted
to be imported under the said licence. The respondents in due
course gave their
explanation. Thereafter an amended show
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cause notice dated September 21, 1961 was served upon the respondents charging them under s. 167(8) of the Sea Customs Act
read with s. 3(2) of the Imports and Exports Control Act, 1947
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~t;J'RF.MF COPRT RF,P0RT8
[1966)
Sl'PP.
S.C.R.
for ille~ally importing the said consignment. The respondents
were given a personal hearing and thereafter the first petitioner
passed an order dated March 17, 1962 directing confiscation of
the said machinery an<l imposing a tine of Rs. 20.000 in lieu of
confiscation
and
further
impos;ng
a
personal
penalty
of
Rs. 25.000.'-.
Aggrieved by this order the respondents filed a
petition in the High Court under Art. 226 of the Constitution
praying for mandamus directing the petitioners to rescind the
order <lated March 17. 1962 and for certiorari quashing the said
order.
The learned single Judge who heard the petition passed
an order dated September 2, 1963 dismissing the petition holding
that the said import was illegal. Thereupon the respondents tiled
an appeal against the said order and the Appellate Bench of the
High Court by its orders dated December 18, 1964 allowed the
respondents' appeal directing the
petitioners to forbear
from
giving effect to the said order of the first petitioner. The petitioners filed an application for a certificate under Art. 133 but the
Appellate Bench of the High Court by its arder dated August 17,
1964 dismissed the said application on the ground that it was
barred by limitation, though holding that
(i) the valuation tests laid down in sub-cl. (a) and (b) of Art.
133( I) were satisfied. and
(ii) that the order being one of reversal the petitioners were
otherwise entitled to a certificate.
The present appeal is against the said order dated December
18, 1964 by which the High Court issued the writ of mandamus
against the petitioners.
As aforesaid, the High Court delivered its judgment and
passed the abovementioned
order allowing
the
respondent's
appeal on December 18, 1964.
On December 19, 1964 the petitioners applied for certified copies of the said judgment and the
said order. The certified copy of the judgment was furnished to
the petitioners on January 18, 1965.
The petitioners
however
waited for the certified copy of the said order which was yet not
fumisl!ed to them.
As the certified copy of the said order was
not finalised and was not ready the petitioners filed the said application for leave on May JO, 1965 annexing thereto the certified
copy of the judgment only.
On July 17, 1965, a certified copy
of the said order was furnished to the petitioners but they did not
annex it to their application for leave as it was already filed. As
stated earlier the High Court dismissed the application by its
order dated August 17, 1965, on the ground that it was barred by
limits ti on.
The High Court however observed that if the petitioners had annexed the certified copy of the said order furnished
to them on July 17, 1965 they would have been entitled to e~clude
the time taken in obtaining it from the period of limitation under
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COLLECTOR OF CUSTOMS i•. BEST & CO. (S/ielat. J.)
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s. 12(2) of the Limitation Act. The result according to that view
would be that:-
(i) if the petitioners had waited till July 17, 1965 and filed
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their application annexing also the certified copy of the said order
their application would have been within time as they would have
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been entitled to exclude the time for obtaining it;
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(ii) if they had amended their application and annexed the
certified copy of the order on receiving the same they would still
have been entitled to exclude the aforesaid period and their application then would have been within time; and
(iii) if they had withdrawn the application and filed a fresh
application annexing thereto the certified copy of the said order
such fresh application would have been within time as they would
have been entitled to exclude the time taken in obtaining the certified copy of the order. According to the High Court the petitioners
however were not entitled to exclude the time for obtaining the
certified copy of the order as they had filed the said application
without annexing thereto the copy of the said order and their
application filed on May 10, 1965 was already time barred.
According to the respondents, since under Art. 132 of the
Limitation Act the application for leave had to be made within
60 days. the petitioners' application lodged on May IO, 1965 was
clearly beyond 60 days even after the certified copy of the judgment was furnished to them on January 18, 1965.
Consequently,
the petitioners' application was time barred and was rightly
rejected by the High Court.
The question for determination is whether the application
for leave to appeal was barred by limitation and the petitioners
were not entitled under s. 12(2) of the Limitation Act to exclude
the time taken in obtaining the certified copy of the said order.
Section 12(2) provides that in computing the period of limitation
for an appeal or application for leave to appeal, the time requisite
for obtaining a copy of the decree. sentence or order appealed
from or sought to be revised shall be excluded. Similarly, under
sub-section 3 where an application is made for leave to appeal,
from a decree or order, the time requisite for obtaining a copy
of the judgment on which the decree or an order is founded shall
also be excluded. On a plain reading of these sub-sections, it is
clear that the time for obtaining the certified copy of both the
judgment and the decree or order as the case may be must be
excluded while computing the period of limitation. The object of
the exclusion is to enable the person desiring to appeal to consider
the terms of the decree, judgment and order before he decides to
launch a further proceeding in respect of it.
Two views were, however, canvassed before us on the construction of s. 12. One was that the right of exclusion of time is
OU
SUPREME (,'{Jt"RT
R.~;P<>RTS
[1966) SUPP. B.C.R.
qualified by the words "Lime requisite for obtaining a copy of the
decree, sentence or order" in sub-section 2.
Therefore, if an
application for leave to appeal does not require a certified copy
of the order in question to be annexed to the application, it is not
possible to say that the time required for obtaining such a copy
was requisite.
In such cases
the
time in obtaining the copy
would not be requisite time and consequently the applicant would
not be entitled to exclude the time taken in obtaining the certified
copy of the order.
Certain decisions of some of the High Courts
have also taken the view that such an applicant would not be
entitled to the benefit of the sub-section where a copy of the decree.
judgment or order is not actually annexed to the application or
the memorandum of appeal.
The other view is that sub-ss. 2 and
3 of s. 12 enact the rule of exclusion as a positive direction. The
object of the sub-section being to afford a party opportunity to
consider his position e'en where a certified copy of the judgment
gives all the necessary infonnat!on enabling the party to decide to
proceed further or not. he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or
order. It has been held in some
decisions that even in cases
where it is not neces,ary to prepare a formal order, if sllch an
order is prepared, the party would be entitled to the benefit of
exclusion of time taken in
preparing and furnishing a copy
thereof where it is applied for.
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Counsel for the respondents
relied on the first view and
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argued that though the petitioners applied for certified copies of
both the judgment and the order. they were at best entitled to exclude the time for obtaining the copy of the judgment as they
had annexed such a copy but not to the exclusion of time in obtaining the latter.
He contended
that though the petitioners
applied also for the copy of the said order it was not necessary
for them to annex it to their application and in fact though it was
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applied for and obtained it was not actually annexed. That being
the position and the application for leave to appeal being competent without annexing either the certified copy of the judgment or
of the order under the rules of the High Court of Calcutta it would
not be possible to say that the time for obtaining the copy was
time for something that was requisite and therefore that time
could nol be excluded.
He also argued that the rules of the High
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Court of Calcutta not only did not require such a party to annex
a copy of the order but the prescribed form for such an application was mandatory in language and was a provision to the contrary. He therefore argued that there was a double reason for the
petitioners not being entitled lo the benefit of the exclusion.
We shall deal with the second contention first as it is capable
H
:if an easy disposal
Rule 4. in Chapter XXXlllA of the Rules
of the High Court requires that an application for leave to appeal
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COLLECTO]{ Oi' CUSTO'!S t\ llES'r & uo. (8lte1at, J.)
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shall be made by a notice of motion before the appellate court
and shall be presented in the prescribed form, viz., Form No. 3,
That form does not require that a certified copy of the judgment
and/or decree or order need be annexed to such an application.
The rule and the form thus enable a party to file an application
for a certificate without annexing either a copy of a judgment or
a copy of an order.
But that does not mean that the rule and the
form lay down any mandatory direction that a copy either of the
order or of the judgment shall not be annexed. The rule and
the form thus do not assist or further the argument urged by
counsel for the respondents.
In regard to his first contention the learned counsel for the
respondents urged that sub-ss. 2 and 3 of s. 12 would not apply
where it is not necessary to annex a copy of the judgment or order.
For, in such a case it is not possible to say that the time taken in
obtaining such a copy is time "requisite" within the meaning of
that expression in sub-s. 2 of s. 12. Exclusion of the time required
in obtaining a copy of the order therefore can only be allowed if
and only if, such a copy is either required to be annexed or in any
event is in fact annexed to the petition for leave to appeal. The
question is: is the provision for exclusion of time in s. 12(2) dependent upon whether the rules of a court permit a petitioner to
file an application for leave with or without a copy of the judgment or order or decree and also where the rules so permit whether
he has annexed such a copy to his application? In Surty v.
Chettyar(') the Privy Council after considering various decisions
of different High Courts held that (!) the preponderance of practice in India was that time for obtaining a copy of the judgment
or decree or order should be excluded even though under the
rules of the Court it was not necessary to obtain a copy of the
judgment or decree to be filed with the memorandum of appeal,
and (2) that on a grammatical construction of s. 12(2), the subsection plainly lays down a positive direction for exclusion of time
without any reference to the Code of Civil Procedure or any other
Act.
In that case the appellant had brought a suit on the original
side of the High
Court of Rangoon. That suit was dismissed
on January 8, 1925. On April 28, he filed his memorandum of
appeal before the appellate side of the High Court. A question
arose whether the appeal was filed in time. The appellant tried
to explain the delay and prayed for extension of time but the
court refused to condone the delay and dismissed the appeal. The
·appellant then filed an application for review and it was then that
he for the first time invoked sub-ss. 2 and 3 of s. 12 contending
that the time taken in obtaining the copy of the order and of the
judgment should be excluded. The Court upheld the contention
of the respondents that such time could not be excluded as under
the rules of that High Court the memorandum of appeal could
02
Kt1l'REME OOt'RT aePORTS
[ l 966jBUPP. S.~.R.
be filed without annexing thereto the copy of the judgment or the
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order. This view was challenged in appeal before the Privy Council.
The rule on which the respondents in that case relied provided that a memorandum of appeal and an application for
revision should be accompanied by certified copies of the judgment
and decree unless they were dispensed with by the court. That
rule however had a proviso which was in the terms following:-
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"Provided that a memorandum of appeal against
a decree or order of the High Court in the exercise of the
original jurisdiction may be presented
without a certified copy of the decree or formal order accompanying
it"
Relying on this rule, it was contended that inasmuch as the
proviso enables the appellant to tile his appeal without a copy of
the order or judgment the appellant would not be entitled to
exclusion of time as such time
would not be "requisite" time
within the meaning of s. 12(2) and the High Court was therefore
right in dismissing the appeal as being beyond time.
The Privy
Council disagreed with this contention holding thats. 12 contained
a positive direction for exclusion of time and that such direction
applied irrespective of whether the rules permitted the filing of an
appeal or an application without annexing the copy of the order
or judgment. The Privy Council emphasised that the positive
direction contained in s. 12 was unconditional inasmuch as there
was no reference therein to the Code of Civil Procedure and the
section did not say why the time was to be excluded.
At page
170 of the report the Privy Council observed:
"If, indeed, it could be shown
that in some particular class of cases there could be no object in obtaining
the two documents, an argument might be offered that
no time could be requisite for obtaining something not
requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different
ways, and the practitioner may well want to see its form
before attacking it by his memorandum of appeal.
As
to the judgment, no doubt when the case docs not come
from up country, the practitioner will have heard it
delivered, but he may not carry all the points of a long
judgment in his memory, and as Sir John Edge says, the
Legislature may not wish him to hurry to make a decision
till he has well considered it."
These observations were an answer to the contention that no
time could be requisite for obtaining something not requisite. The
legislature allowed the exclusion even though the rules of a court
might f!Ot require a copy to be annexed to the memorandum of
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COLLECTOR OF OUSTOM8 v. BEST & CO. (8helat, J.)
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appeal for a party who intends to file an appeal may desire to
examine the decree or the judgment before he launches a further
proceeding. Therefore, the exclusion was allowed irrespective of
the rules of a court which permit a party to file an appeal without
annexing a certified copy of the judgment or decree or order.
In Imperial Bucket Co. v. Smt. Bhagwati Basak(') there are
however observations to the effect that an appellant will have the
benefit of s. 12 in a case where be has annexed to the memorandum of appeal a certified copy of the judgment appealed from
even though by the statute under which the appeal is filed, no
certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for
and obtained but not annexed the time in obtaining it was for a
thing not requisite.
As the Privy Council
observed, a party
might like to examine the judgment or the decree or the order before be challenged it in a higher forum.
Though the judgment
states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time
D l where it is not annexed. But in Gangaram v. Beharilal(') a view
has been taken that sub-ss. 2 and 3 of s. 12 would only be attracted
when a copy of the judgment or decree or order appealed from
accompanies the application for review.
This view is not in consonance with and in fact is contrary to the interpretation of s. 12
by the Privy Council in Surty's Case(') and is therefore unwarrantE
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ed. The same must also be said of Abdul Aziz v. Jai Ram(').
As observed by the Privy Council in Surty's Case(") the view of
the High Courts of Bombay, Calcutta and Allahabad as expressed
in Haji Hassum v.
Noor Mohammad(·'), Ka/ipada v. Shakhar(''),
and Waji-A/i Shah v. Nawal Kishore(') was that an appellant was
eqtitled to exclusion of time in obtaining a copy of a judgment
and decree even though the rules permit him to file the appeal
without annexing such a copy.
The view contended for on behalf
of the respondents is thus not only contrary to the decision of the
Privy Council but if accepted would lead to a somewhat surprising
result, viz., that if the petitioners had waited till the copy of the
order was furnished to them, their application would have been
in time or if they had withdrawn · their application and filed a
fresh one or amended their application and annexed the copy
of the order such a fresh application, or such amended application, which in its unamended form was in their view time barred,
would have been well within the period of limitation. In our
view such a result is not to be contemplated.
As the Privy Council has laid down the provisions of s. 12(2) and (3) are a positive
(1) A.LR. 1954 Cal. 520.
(') M I.A. lfil.
(G) I.! .. R. Born, 64!l.
. -- ------------
(7) T.L.R. 17 All. 21!-l.
I') A.LR. 1952 Bhopal ~9.
('I A.l.R. 1951 H P. 67.
(6 ) 24 Cal. 235.
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~FPRF.MB C'OlJRT RF.PORT~
(1966) Sl'PP. 8.C.R.
direction excluding the time taken in obtaining a copy of the
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judgment and decree or order as the case may be and those provisions ifre irrespective of the Code of Civil Procedure or the rules
made by a court under s. 122 of the Code. Such rules if they
permit a memorandum of appeal to be filed without annexing
thereto a copy of the judgment or decree or order confer a privilege on a would be appellant but do not govern the positive
direction contained in s. 12. The High Court in this view, therefore, was not right in dismissing the petitioners' application for
leave to appeal on the ground that it was barred by limitation.
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In the result, we allow the appeal and set aside the High
Court's order of dismissal and remand the case directing the High
Court to decide that application in the light of this judgment and
consider whether the petitioners were
entitled to leave under
Art. 133 of the Constitution. As we are allowing the appeal, n0
order need be passed on the petition for condonation of delay.
The Special Leave Petition l 110 of 1965 is allowed to be withdrawn. There wilt be no order as to costs.
Appeal allowed.
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