# UDAYAN CHINUBHAI v. R. C. BALI

- **Citation:** [1978] 1 S.C.R. 547
- **Court:** Supreme Court of India
- **Decided:** 1977-09-22
- **Bench:** V. R. Krishna Iyer, P. K. Goswami, s. MuRJ'.AZA FAZAL Au
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/udayan-chinubhai-v-r-c-bali-7292
- **Pages:** 13

## Headnote

Linu'tation Acl, 1963, Sections 5, 12, 12(2), Explanation to sec. 12-Whether
the tilue bf'tween the date of the judgn1e111 and the date of the preparation of
the decree is to be excluded for the purposes of lin1ilatio11, if application for
certified copy is made after the decree was prepared-If there was a legal impedi~
n1ent against preparation of the decree on account of certain directions ill
the
judg1nent wlu•ther position would be difjerent-Whe1i a litigant requeJts his
advocate to take all steps wjtf1out any laches and if there is indifference or
negligence 011 the part of the advo~ate, whether delay should be condoned.
The respondent filed a suit for rendition of accounts against the appel!ant.
The Trial Court delivered its judgment on 27-3-1976 and granted a final decree.
The respondent was directed to make up deficiency in court fees \vithin one
month.
On 14-4-1976, the appellant requested his advocate in the trial court
to take necess~ry steps to file an appeal in the High Court. On 17-4-1976 the
advocate in the Trial Court applied for a certified copy of the judgment. The
deficit court fees \Vas paid on 6-5-1976.
On the sa·me· day the decree \vas dra\vn
up.
The advocate who filed the appeal in the High Court applied for another
certified copy of the judgment and decree on 14-7-1976. The said copies were
ready on 17-9-1976. The appeal \Vas filed on 29-9-1976.
If ihe limitation is
counted from 6-5-1976 the appeal would be within period of limitation.
Ho\Vever, if the limitation \1i'as counted from 27-3-1976. the appeal \vould Oe timebarred. The High Court on construction of s.12(2) of the Limitatiori Act. 1963,
read \Vith the explanation
held that the 1imita-tion would
con1mence from
27-3-1976, and. therefore, the appeal \Vas time-barred.
The High Court 'held
that the delay till 17-9-1976 was explained, however, since the appeal was filed
on 29-9-1976, the delay of 12 days was not explained and, therefore, dismissed
the appeal.
AJio,ving the appeal by special leave,
HELD :-(1) Jn the Limitation Act of 1908 there was no explanation tn
section 12 and there was a sharp cleveage of opinion in the High Courts with
regard to the expression "the time requisite for obta-ining a copy of the decree".
Ultimately this Court in the case of Lala Bal Mukund held approving the vie•N
of the n1ajority of the High Courts ,that the period taken in drawing up of the
decree \1i'Oti1d be part of the requisite period.
This Court, however, did not
express any opinion on the new section 12(2) of 1963 Act read with explanation.
[550 H, 553 C-EJ
Jagat Dhish Bhar{?a'Va v. Jawahar Lal B/Jarf,?ava & Ors. f1961] (2) SCR 918
and Lala Bal Mukand (Dead) by L.Rs v. Laiwanti and others A.I.R. 1975 SC
1089, referred to.
(2) The Court after referring to the object of the new section and the recommendation of the Law Commission held that in computing the time requisite
for obtaining the copy of a decree the time tha-t elapsed between the pronoun.cement of the judgment and the signing of the decree is not to be excluded if the
application for copy was made after the preparation of the decree.
[553 F-GJ
Subhash Ganpatrao Buty and Another v. Maroti s/o Krishnaji Dorlikar ar.d
Others A.I.R. 1975 Bomba·y 244, overruled.
Sitaram Dada Sawant and Another v. Ramu Dada Sawant, AIR 1968 BomB
c
D
E
F
G
bay 204. approved.
H
(3) The Court held that "shall not be excluded" does not mean "shall be
included".
[555 CJ
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/
A
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SUPREME COURT REPORTS
(1978] 1 S.C.B..
( 4) The position would be different if a decree ca-n.not be prepared in law
because of non-con1pliance with some directions in the judgment.
It is iiot
possible to conceive how a person may obtain a copy of a decree if that -decree
in vie\V of the recitals in the judgment pronounced cannot be prepared without
some further action by a party. A judgment which is unconditioned by the requirerr1ent of any action by a party stands on a different footing and in that
event the date of the judgment would nece

## Text

UDAYAN CHINUBHAI
v.
R. C. BALI
September 22, 1977
547
[V. R. KRISHNA IYER, P. K. GOSWAMI AND s. MuRJ'.AZA FAZAL Au, JJ.}
Linu'tation Acl, 1963, Sections 5, 12, 12(2), Explanation to sec. 12-Whether
the tilue bf'tween the date of the judgn1e111 and the date of the preparation of
the decree is to be excluded for the purposes of lin1ilatio11, if application for
certified copy is made after the decree was prepared-If there was a legal impedi~
n1ent against preparation of the decree on account of certain directions ill
the
judg1nent wlu•ther position would be difjerent-Whe1i a litigant requeJts his
advocate to take all steps wjtf1out any laches and if there is indifference or
negligence 011 the part of the advo~ate, whether delay should be condoned.
The respondent filed a suit for rendition of accounts against the appel!ant.
The Trial Court delivered its judgment on 27-3-1976 and granted a final decree.
The respondent was directed to make up deficiency in court fees \vithin one
month.
On 14-4-1976, the appellant requested his advocate in the trial court
to take necess~ry steps to file an appeal in the High Court. On 17-4-1976 the
advocate in the Trial Court applied for a certified copy of the judgment. The
deficit court fees \Vas paid on 6-5-1976.
On the sa·me· day the decree \vas dra\vn
up.
The advocate who filed the appeal in the High Court applied for another
certified copy of the judgment and decree on 14-7-1976. The said copies were
ready on 17-9-1976. The appeal \Vas filed on 29-9-1976.
If ihe limitation is
counted from 6-5-1976 the appeal would be within period of limitation.
Ho\Vever, if the limitation \1i'as counted from 27-3-1976. the appeal \vould Oe timebarred. The High Court on construction of s.12(2) of the Limitatiori Act. 1963,
read \Vith the explanation
held that the 1imita-tion would
con1mence from
27-3-1976, and. therefore, the appeal \Vas time-barred.
The High Court 'held
that the delay till 17-9-1976 was explained, however, since the appeal was filed
on 29-9-1976, the delay of 12 days was not explained and, therefore, dismissed
the appeal.
AJio,ving the appeal by special leave,
HELD :-(1) Jn the Limitation Act of 1908 there was no explanation tn
section 12 and there was a sharp cleveage of opinion in the High Courts with
regard to the expression "the time requisite for obta-ining a copy of the decree".
Ultimately this Court in the case of Lala Bal Mukund held approving the vie•N
of the n1ajority of the High Courts ,that the period taken in drawing up of the
decree \1i'Oti1d be part of the requisite period.
This Court, however, did not
express any opinion on the new section 12(2) of 1963 Act read with explanation.
[550 H, 553 C-EJ
Jagat Dhish Bhar{?a'Va v. Jawahar Lal B/Jarf,?ava & Ors. f1961] (2) SCR 918
and Lala Bal Mukand (Dead) by L.Rs v. Laiwanti and others A.I.R. 1975 SC
1089, referred to.
(2) The Court after referring to the object of the new section and the recommendation of the Law Commission held that in computing the time requisite
for obtaining the copy of a decree the time tha-t elapsed between the pronoun.cement of the judgment and the signing of the decree is not to be excluded if the
application for copy was made after the preparation of the decree.
[553 F-GJ
Subhash Ganpatrao Buty and Another v. Maroti s/o Krishnaji Dorlikar ar.d
Others A.I.R. 1975 Bomba·y 244, overruled.
Sitaram Dada Sawant and Another v. Ramu Dada Sawant, AIR 1968 BomB
c
D
E
F
G
bay 204. approved.
H
(3) The Court held that "shall not be excluded" does not mean "shall be
included".
[555 CJ
I
/
A
B
c
D
E
F
548
SUPREME COURT REPORTS
(1978] 1 S.C.B..
( 4) The position would be different if a decree ca-n.not be prepared in law
because of non-con1pliance with some directions in the judgment.
It is iiot
possible to conceive how a person may obtain a copy of a decree if that -decree
in vie\V of the recitals in the judgment pronounced cannot be prepared without
some further action by a party. A judgment which is unconditioned by the requirerr1ent of any action by a party stands on a different footing and in that
event the date of the judgment would necessarily be the date of the decree.
In such a case a party .cannot take advantage of any ministerial delay in prepatfing the decree prior to his application for a copy j,e., to say if there is any
impediment in law to prepare a decree immediately after the pronouncement
of judgment, no matter, if in fact, a decree is prepared after some time lapses.
It is only when there is a legal impediment to prepare a decree on account of
certain direction in the judgment or for non-compliance with such directions
or for other legally permissible reasons the party who is required to con1pJy with
such directions or provisions cannot rely upon the tin1e required by hin1, unOer
those circumstances, as n1nning against his opponents.
In the present case,
time was given to the respondent for paying the deficit court fees.
There can
be no decree in existence in law until the respondent supplied the court fees.
Without the existence of the decree any application for a copy of the decree
would be futile.
In the present case, therefore the date of the decree \Vas wfien
the respondent furnished the court fees as ordered.
It \Vas only when the
respondent paid the court fees that it \Vas possible to prepare the d\:cree
in
terms of the judgment. In the present case the period of 90 days \vould count
from the da.te \Vhen the respondent had deposited the court fees.
Even other\vise in the entire circumstances of the case disclosiOg sheer ftidiff erence on the part of the Trial Court advocate and no l:iches \Vhatever on
the part of the appeilant, the court would have been inclined to condone the
delay of 12 days under sec. 5 of the Limitation Act.
CML APPELLATE JURISDICTION : Civil
1977.
[557 D 558 F-H. 559 B-FJ
Appeal No. 1187
of
Appeal by Special Leave from the Judgment and Order dated the
28th March, 1977 of the Delhi High Court in Regular First Appeal
No. 386 of 1976.
V. M. Tarkunde, P. H. Parekh. Kailash Vasdev and Miss Manju
1 etlcy for the Appellant.
A. B. N. Sinha, K. K. Sinha and S. K. Sinha for the Respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-This appeal by special leave is directed against the
judgment and order of the Delhi High Court dated March 28, 1977,
in a regular first appeal.
The High Court dismissed the appeal as
time barred and also refused to condone the delay under section 5
G
of the Limitation Act, 1963.
H
The defendant is the appellant before us.
The plaintiff-respondent filed a suit for rendition of accounts in the court of the Commercial Sub-Judge, Delhi and he decreed the suit by his judgment
dated March 27, 1976, in the following words :-
"I grant the plaintiff a final
decree in the
sum
of
Rs. 42,259.75 against the defendants with costs.
The plaintiff is directed to make up deficiency in court fee within .
one month".
_,
u. CHJNUBllAJ V. R. c. BALI (Goswami, J.)
54 9
It appears that the suit was filed with a court fee of. Rs. 20/- only.
A
The pl11intiff after obtaining, from the court, an extension of time
supplied the deficient court fees on May 6, 1976, on which date the
.decree was prepared and signed.
On April 14, 1976, the appellant, who stays in Abmedabad, requested Shri Bharatinder Singh, his Advocate in Delhi, in the trial
court, to take necessary steps to file an appeal in the High Court
B
and the said Advocate made an application for certified copies of the
judgment and the decree on April 17, 1976.
Later on the appellant
requested Shri P. H. Parekh, Advocate, to file the appeal in the High
Court.
Shri Parekh was informed by Shri Bharatinder Singh that
he had made the application for certified copies in April 1976 and
that he would hand over the certified copies as soon as these were
received.
C
Since, however, for a long time the said certified copies were not
received by him from Shri Bharatinder Singh, Shri Parekh filed another application for certified copies of the judgment and decree on
July 14, 1976. after signing of the decree.
The said copies were ready
on September 17, 1976 and were received by Shri Parekh on that
day.
Shri Parekh prepared the Memo of appeal, got it approved
from his client in Ahmedabad, purchased the court fees payable on
the Memorandum of appeal on September 25, 1976, and filed
the
appeal in the High Court on September 29, 1976.
It is stated that Shri Parekh was all along of the opinion that since
the first copy had been applied for in April 1976 and since that was
not ready, the appeal would be well within time and since the said
certified copies would be obtained from Shri Bharatinder Singh Shri
Parekh would file the said certified copies to show that the appeal
was within the period of limitation. It is further stated that Shri
Parekh was also of the opinion that the time for limitation would
start running from May 6, 1976, since that was the date when the
respondent paid the deficient court fees
~nd the final decree was
drawn up and signed.
It was under these circumstances, it was claimed before the High.Court, that the appeal filed was within the period
of limitation as prescribed by article 116 (a) of the Schedule to the
Limitation Act, 1963.
. The Registry of the High Court pointed out that the appeal was
time barred and the appellant, therefore, filed an application explaini_ng all the aforesaid facts and circumstances with regard to the delay
m presentation of the appeal and also contended that in fact there
was no delay if the time ran from May 6, 1976.
The High Court held that the
appeal was, prima facie time
barred taking the date of the decree as March 27, 1976, whi~h was
the date of the judgment and refused to condone the delay of 12
<lays which,. according to the High Court, was not adequately explained.
The High Court, however, made a significant observation taking
note of the entire circumstances of the case that "all this makes out
D
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SUPREME COURT REPORTS
[1978] l s.c.R.
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sufficient cause for condoning the delay upto that time'', that is 17th
September, 1976, when Shri Parekh took delivery of
the
certified
copy. It may be mentioned here that Shri Bharatinder Singh took
delivery of the certified copies on December 22, 1976, although these
were ready for delivery on June 11, 1976.
B
c
D
E
F
G
H
The first question that arises for decision in this appeal is whether
under section 12(2) of the Limitatidn Act, 1963, read with
the
Explanation, the appellant is entitled to exclude the time commencing from the date of the judgment till signing of the decree prior to
his application for a copy thereof.
According to the appellant the
Explanation should be so read as to enable a party to obtain
the
benefit of the time prior to the signing of the decree in computing
the period of limitation.
In that case the appeal will not be barred,
says Mr. Tarkunde.
Before we proceed further, we may read section 12 with the Explanation which was for the first time introduced in the new Act in
1963 :
"12. (1) In computing the period of limitation
for any
suit, appeal or application, the day from which
such period is to be reckoned, shall be excluded.
(2) In CO!)lputing the period of limitation for an appeal
or an application for leave to appeal or for revision
or for review of a. judgment, the day on which the
judgment complained of was pronounced and the
time requisite for obtaining a copy of the decree,
sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a· decree or order is appealed from or sought
to be revised or reviewed, or 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 order is founded shall
also be excluded.
( 4) In computing the period of limitation for an application to set aside an award, the time requisite for
obtaining a copy of the award shall be excluded.
Explanation :-In computing under this section the time
requisite for obtaining a copy of a deqee or an order, any
time_ taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be
excluded".
In the old Limitation Act, 1908, the Explanation was not there
and there was a sharp cleavage of opinion in the High Courts with
regard to the expression "the time requisite for obtaining a copy of
the decree".
Dealing with section 12(2) of the old Act, this Court
u. CHINUBHAI v. R. c. BALI (Goswami, J.)
5 51
in Jagat Dhish Bhargava v. Jawahar Lal Bhargava & Others(') made
A
the following observation at page 926 :-
"There is, however, a sharp difference of opinion in regard to cases where an application for a certified copy of the
decree is made after the said decree is drawn up.
In dealing with such cases Courts have differed as to what would
be the period requisite for obtaining the certified copy of the
decree.
The Bombay, Calcutta and Patna High Courts,
appear to have held that the period taken in drawing up of
the decree woutd be part of the requisite period, while other
High Courts have taken a contrary view. It is significant
that though the High Courts have thus differed on this point,
in every case an attempt is judicially made to do justice between the parties".
The Bombay view was the majority
view.
x
x
x
x
Section 12(2) of the old Act came up for consideration before
this Court in a recent decision in Lala Bal Mukand (Dead) by L Rs.
v. Lajwanti and others,(') but this Court, while, approving of the
view held by the majority of the High Courts under the section, expressed no opinion on the new section 12(2) of the 1963 Act read
with the Explanation. So far as the expression "time requisite" used
in section 12 (2) is concerned this Court, however, observed in that
decision as follows :-
"If any period of the delay in preparing the decree was
attributable to the default or negligence of the appellant,
the latter shall not be entitled to the exclusion of such period
under section 12(2) of the Limitation Act, 1908".
That was a case in which, like the instant case, the plaintiffs did not
pay the court fee within the time originally fixed in the judgment and
the appeal by the defendant was held to be barred by the High Court
without excluding the time that the plaintiffs had taken for depositing
the court fee to enable the court to prepare the decree.
In the above
context this Court observed as follows :-
"Applying the law as enunciated above to the acts of
the case in hand, it will be seen that the drawing up or coming into existence of the original decree, of which the copy
was sought, was conditional upon the payment of Court-fee
by the plaintiffs within thirty days of the pronouncement of
the judginent (30-10-1956). The plaintiffs did not comply
with that direction within the time originally specified in the
judgment.
They deposited the Court fee only on 18-1-1957
. within the extended time which was granted without notice
to the defendant-appellant.
Even after that, the decree was
(1) [1961] 2 S.C.R. 918.
(2) AJ.R. 1975 S.C. 1089.
c
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[1978] 1 s.c.R.
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not signed till 30-1-1957.
Under the judgment or
any
rules of the Court, the appellant was not required to take
any step towards thte preparation of the decree.
No period
of the delay in drawing up the decree was attributable to
the fault of the appellant. The delay was mainly due to the
delayed deposit of the Court-fee by the plaintiffs and partly
due to the laxity of the office of the Court.
Although
B
the appellant pre.maturely filed an application for getting a
copy of the non-existent decree on 26-11-1956, he could
legitimately clefer that action till the condition precedent on
which the drawing up of the decree was dependent was performed by the plaintiffs. It would not have been extravagant for the appellant to wa,it till the Court-fee was deposited by the plaintiffs, for, in the event of non-deposit of the
C
Court-fee, there was a reasonable possibility of their suit
being dismissed. or at any rate, of the decree against which
the defendant felt aggrieved and eventually appealed, not
being passed.
Under the circumstances, the appellant was
entitled to the exclusion of the entire time between the date
of the pronouncement of the judgment and the date of signing of the decree, as the 'time requisite for obtaining a copy
D
of the decree' ".
E
F
G
H
Having regard to the state of the law with regard to section 12 of
the old Limitation Act and the sharp cleavage of opinion in the
High Courts, the Law Commission in its Third Report on the Limitation Act, 1908, observed in para 37 at page 17 as follows:-
"some courts have taken the view that the delav in drafting the decree before an application for a copy· is
made
should be deducted as 'time requisite'.
But we think that
a delay of the office before the
application for a
copy
is made should not count in favour of the party.
A suitable provision should he added to make this clear".
The Commission, therefore, proposed at page 76 of the Report insertion of an explanation to section 12 in the following terms :-
"Explanation.-Any time taken by the Court to prepare
the decree or order before an application for copy thereof
is filed shall not be regarde·d as time requisite for obtaining
the copy within the meaning of this section".
This is the background of the Explanation introduced in
the
1963 Act.
The Bill for the new Limitation Act was introduced in the. Rajya
Sabha in June 1962 (Bill No. XI of 1962). The Objects and Reasons appended to the Bill for inserting the new section 12 are given
as follows :-
"The existing section 12 is being amended :
(i) to include applications for revision within its scope;
u. CHINUBHAI V. R. c. BALI (Goswami, J.)
553
_,
A
(ii) to provide expre1;sly that the time requisite for obtaining a copy of the judgment in the case of an applicalion for leave to appeal is also to be excluded;
(iii) to make it clear that any delay in the office of the
i
court in drawing up a decree or order before the
application for a copy thereof is made, shall not be
excluded."
B
"
As noted earlier the Explanation was introduced in order
to
finally put the lid on the controversy with regard to the time requisite for obtaining a certified copy of the decree under section 12(2).
l
The majority of the High Courts under the old section 12(2), without the Explanation, took the view that in excluding the time requisite for obtaining a certified copy of the decree the entire time c
required for preparation of the decree by the office after pronouncement of-the judgment and the signing of the decree was to be excluded irrespective of the fact whether the application for certified copy
of the decree was made prior to the signing of the decree or after it.
This Court in Lala Bal Mukand (supra), as stated earlier, approved
of the view taken by the majority of the High Courts. It is worth
repeating that while approving of that view under the old Act this
D
Court made it clear that "it expressed no opinion as to whether the
law enunciated in Lala Bal Mukand (supra) would hold
good in
cases governed by the new section 12 of the 1963 Act''.
It is exactly this question which has now been presented before
us for decision.
It is contended on behalf of the appellant that; under
the new section 12(2), in calculating the time requisite for obtaining
E
the certified copy of the decree, the time' which elapsed prior to signing of the decree, should also be excluded under section 12(2) notwithstanding that the application for certified copy was made after
the preparation of the decree.
Relying on the new section 12(2) read with the Explanation of
the 1963 Act, it is not possible to accept the submission that in
F
computing the time requisite for obtaining the copy of a decree by an
application for copy made after preparation of the decree the time that
elapsed between the pronouncement of the judgment and the signing of
the decree should be excluded. The Explanation does not countenance
such a construction of section 12(2). It is to set at rest the difference of views amongst the High Courts that the explanation was intraduced and it is not permissible now to allow the same controversy
G
to be perpetuated even after the 1963 Act.
The appellant strongly relied upon the Full Bench decision of the
Bombay High Court in Subhash Ganpatrao Buty and
Another v.
II'
Maroti s/o Krishnaji Dorlikar and Others(') in support of his submission.
The Full Brench ovser.>;d in that decision that-
.j
". . . . . it is the duty of the Court to interpret the language actually employed and to determine the intention of the
H
(I) A.I.R. 1'75 Born. 244.
A
B
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554
SUPREME COURT REPORTS
[1978) 1 S.C.Rlegislature from such language and since there is no ambiguity about the language actually employed, neither the recommendation of the Law Commission nor the aims
and
object as set out in the Statement of Objects and Reasons
can be brought in aid or can be allowed to influence the
natural and grammatical meaning of the Explanation as enacted by the Parliament".
The Full Bench further observed :
"We are conscious that the interpretation which we have
placed upon the Explanation is in teeth of the recommendation of the Law Commi§sion and the object stated in the·
Statement of Objects and Reasons for introducing the Explanation to section 12(2) but having regard to the language
employed, which is very clear and unambiguous, it is our duty
to give the plain and natural meaning to such language .... ".
The Full Bench further observed :
"In other words, the plain and grammatical meaning of
the Explanation in our view, is that while computing the
'time requisite' for obtaining a copy of a decree, any time
taken by the Court to prepare the decree or order before an
application for a copy thereof is made shall be included."
The Full Bench overruled a decision of the same court in Sitaranr
Dada Sawant and Another v. Ramu Dada Sawant('),
wherein
Chandrachud, J. (as he then was) had taken the view, on the new
section, that the appellant therein should be entitled to the exclusion of
time between the date on which he applied for certified copies and the
date on which those copies were ready for delivery and that the time
between the date of the judgment and the date on which the decree
was drawn up should not be excluded if the appellant had applied for
certified copy of the decree after the decree was drawn up.
The Full
Bench gave a good deal of importance to what it described as "the
aspect as to what topic is dealt with by the Explanation ... ". The
Full Bench, inter alia, also referred to a decision of the Orissa High
Court in Koutuki Sabatani v. Raghu Sethi(2) where the said High Court
observed that "it appears to us that the Explanation which was actually
added to section 12 of the Act means just contrary to the suggestion of
the law Commission".
This is the first time that this Court is called upon to deal with
section 12 of the Limitation Act, 1963, with the Explanation added to
it.
We have already noted the history of this provision having regard
to the recommendations of the Law Commission and the Statement of
the Objects and Reasons while introducing the Bill in Parliament.
The object of the Explanation is to facilitate computation of the
time requisite for obtaining a copy of the decree about which there had
been earlier sharp difference of judicial opinion.
It will be an irony if
(!) A.l.R. 1968 Born. 204.
iZ) A.1.R. 1970 Orissa 116.
,

u. CHJNUBHAI V. R. c. BALI (Goswami, /.)
555
the same difference of opinion continues even after the new Explanation.
Since the Explanation is apparently capable of confiicting views
still current in several High Courts which have been noticed in the
Bombav Full bench case of Subhash Ganpatrao Buty (supra), two of
which are now from the same High Court, it is not possible merely to
decide, as the Full Bench has done, "on a natural and grammatical
meaning of the Explanation" to section 12(2). It is clear from
the
decision of the Full Bench that it would have arrived at a different
conclusion and would have perhaps even agreed with the decision of
the single Bench of that Court if it did not fall into an error in holding
that there was absolutely no ambiguity in the Explanation notwithstanding conflicting views expressed by some of the
High Courts,
including their own, to which their attention was drawn.
We would not approve of reading the words in the Explanation,
"shall not be excluded" by mentally substituting them as "shall be
included" for the purpose of construction.
There is a scheme underlying the several clauses in section 12 along with the Explanation which
is the opening section in Part III of the Act under the title "Computation of period of Limitation".
Sub-clauses (1), (2), (3) and (4) use
the same expression "shall be excluded" for the purpose of computing
the period of limitation.
The period of limitation is defined in section
2(j) and "means the period of limitation prescribed for any suit, appeal
or application by the Schedule, and 'prescribed period' means the period
of limitation computed in accordance with the provisions of this Act".
Whenever, therefore, under section 12 a prescribed period of limitation
has to be computed certain days are permitted to be excluded in order
that a person who desires to appeal is not put to any inconvenience or
hardship in the prescribed period being shortened by certain exigencies
for no fault of his or for reasons beyond his control.
When in the several clauses of section 12, as mentioned
above,
certain days shall have to be excluded, what is not to be excluded,
therefore, has also to be clearly explained.
That is the raison
d'etre
for
the Explanation newly
introduced.
In
the
entire
scheme of section 12 dealing with exclusion of time for the purpose of computing the prescribed period of limitation, it is not possible
to substitute the words "shall not be excluded" by reading the same as
"shall be included" which will introduce an alien concept which is different from that disclosed in the setting of al\ the provisions. It will not
be enough to say that the meaning of the words "shall not be excluded"
is the same as "shall be included".
The words "shall not be excluded"
in the Explanation haye t?. play an appropriate role in the setting and
context .of the. expression . shal! be excluded" used m all the preceding
clauses m secl!on 12. It 1s only preservmg the words intact in the
Explanation, its correct intent has to be ascertained.
Let us take, an illustration.
The period of limitation under the
Code of Civil Procedure for an appeal to a High Court from any decree
is 90 days from the date of the decree.
The date of the decree is the
date of the judgment under Order 20, rule 7, C.P.C.
Ordinarily,
therefore, time begins to run subject to section 12 from the date of the
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judgment which is, for the particular purpose, the date of the decree.
90 days being the prescribed period of limitation, under section 12 ( l) ,
the day from which such period has to be reckoned shall be excluded.
Again under section 12(2), the time requisite for obtaining a certified
copy of the decree shall be excluded.
Under section 12(3), even the
time requisite for obtaining a copy of the judgment on which the decree
is founded shall also be excluded.
Having thus in the above three
clauses excluded a number of days in computing the prescribed period
of 90 days, it was absolutely necessary to make it clear in the Explanation that the time taken by the Court to prepare the decree before an
application for a copy thereof is made shall not be excluded. If the
Explanation were not in these terms the old controversy would have
persisted about the lime claimed by a person before making an application for a copy, whether it should be excluded or not, in view of the
earlier conflict of decisions. It is because of this history of the judicial controversy that the Explanation was phrased in the way it has
been done by Parliament, namely, that the time taken by the court to
prepare the decree before an application thereof is made shall not be
excluded. In other words, that period which may elapse in preparing
the copy of the decree, prior to the making of an application for copy,
shall not be excluded \vhen excluding the tin1e requisite for obtaining a
copy while computing the period of limitation.
But for this Explanation it could have been again argued, that time also should be excluded
as the entire period of time requisite for obtaining a copy in veiw of
one line of earlier judicial decisions under the old Act.
We are, therefore, clearly of opinion that the Law Commission had made a very
salutary recommendation in order to make the position absolutely clear
and to avoid any further controversy in the matter.
The Law Commission, in its wisdom, went to the extent of even
suggesting the phraseology of the. Explanation at page 76 of the Report.
Parliament having taken note of the recommendations of the Law
Commission made it clear in the Objects and Reasons while introducing
the Bill that it was brought "to implement the recommendation of the
Law Commission.
When the Explanation was added to section
12,
Parliament sought to put a quietus to the long-standing judicial controversy with regard to "the time requisite for obtaining a copy" by
clearly explaining that when time is excluded, as provided for in subsection (2) of section 12, the time that has elapsed from pronouncement of the judgment to the point of time prior to application for a
copy of the decree shall not be excluded in computation of the time
requisite for obtaining the copy.
This is in accord with reason and
sound common-sense since a person does nothing in court for obtaining a copy prior to his making an application for a copy when there
is nothing, in his way, not to.
This was the reason underlying the
Explanation which prompted the legislature not to permit exclusion
of such idle time of the applicant while computing the time requisite
for obtaining a copy for the purpose of computing the period of limitation.
We have to give effect to this Explanation with its avowed
intent.
Computation of limitation is predominantly the governing factor in
section 12.
In order to achieve an easy computation of the period
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557
of limitation without hardship to litigants and to avoid vicissitudes of
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time-consuming Htigious exercises
which the old section had
been
subjected to, the Explanation has been introduced. In order to enable a correct computation of the period of limitation under section
12(2) with certitude, when it is provided, therein, that certain time
has to be excluded, it is then clearly provided, at the same time, in
the Explanation that a particular period of time shall not .be excluded.
As if the section and the Explanal!on say : You are permitted to
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exclude the time requisite for obtaining a copy but in computing that
time which is requisite and which is allowed for
exclusion
under
secti~n 12(2), you shall not exclude, while computing the period of
limitation, the time that had elapsed from the date of judgment to
the date of your application for a copy.
The object seems clearly to
be not to give premium to unmerited idleness and indifference of litigants in making application for copy.
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The words "under this section'' in the Explanation are significant
relating, as it does, to the
governing topic in the
section, namely,
computation of the period of limitation. There are no twin topics.
one for computation of the period of limitation under section 12(2)
and the other for computation of the time requisite for obtaining a
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copy of the decree under the Explanation divorced from computation
of limitation.
The Explanation cannot be read in isolation disowning
the substantive provision, namely, section 12 ( 2) .
The position may be different if a decree in law cannot be prepare<! because of non-compliance with some directions in the judgment.
The Explanation does a composite service, positive as well as
negative.
Positively it prescribes a mode of correct computation of
the time requisite by a process of exclusion and negatively it mandates
for not excluding the time before making an application for copy.
The Explanation does not warrant inclusion of a certain period positively excluded by it for the
purpose of computing the period
of
limitation by "including" that excluded period for the benefit of a
person prior to his making an application for copy.
The interdict of
the Explanation must be respected.
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1:1Je subject-~atter of section 12(2)
and the
Explanation
is
identical and, with .respect, we are unable to agree with the opinion
of !he Full Bench m Subhash Ganpatrao Buty (supra) that there is
a dichotomy of "topic" in the said two provisions.
We have seen
that th~re ~ay be sc?pe for two views ?n the Explanation and that
would mev1tably forbid a mere grammal!cal construction of the same
on the touchstone of the plain text divorced from the object of the
provision.
The real intent will have to be
discovered
from
the
scheme of the provisions.
It is by following that rule of construction
we have g?ne into the
history and
background of the
provisin~
togethe':' with the recommendation of the Law Commission, as
also
the Objects and Reasons of the Bill in order to arrive at the proper
intent of the Explanation.
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In interpreting the provisions of a statute the courts have to give
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effect to the actual words used whether couched in the positive or in
the negative.
It is not permissible to alter the cohesive underlying
thought process of the legislature by reading in positive sense what
has been set out in negative terms.
The courts will try to discover
the real intent by keeping the diction of the statute intact.
This is
another cardinal rule of construction.
The view we have taken does not require us to mentally substitute
the words in the statute for those used by the legislature.
Besides,
even under the new Act there having already arisen a conflict
of
decisions in several High Courts the sooner the controversy is set at
rest the better.
We are happy that in arriving at this decision we
are effectuating a very useful recommendation of the Law Commission
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whose anxiety in the Report was clearly manifest to put an end to an
ancient judicial conflict. The Court will do its duty not to recommence another series of litigation.
The correct legal position, therefore, is that under section 12 ( 2)
read with the Explanation a person cannot get exclusion of the period
that elapsed between pronouncement of the judgment and the signing
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of the decree if be made the application for a copy only after preparation of the
decree.
We
endorse the views on the line of the
Bombay High Court in Sitaram Dada Sawant Qsupra).
With respect,
the Full Bench decision in Subhas Ganpatrao Bray Asupra)
cannot
be approved.
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This will, however, not conclude the matter before us.
While the above is the true legal position that emerges from section 12(2) read with the Explanation there may be an exceptional
case, as the instant one, before us.
The time requisite for obtaining a copy under section 12(2) must
be that time which is "properly required" for getting a copy of the
decree see Lala Bal Mukand (supra).
It is not possible to conceive
bow a person may obtain a copy of a decree if that decree, in view
of the recitals in the judgment pronounced, cannot be prepared without some further action by a party.
A judgment which is unconditioned by the requirement of any action by a party, stands on a
different footing and in that event the date of the judgment will necessarily be the date of the decree.
In such a case, a party cannot take
advantage of any ministerial delay in preparing the decree prior to
his application for a copy, that is to say, if there is no impediment in
law to prepare a decree
immediately after pronouncement of the
judgment, no matter if, in fact, the decree is prepared after some
time elapses.
No party, in that event, can exclude that time taken
by the court for preparing the decree as time requisite for obtaining
a copy if an application for a copy of the decree has not been made
prior to the preparation of the decree.
It is on lv when there is a
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legal impediment to prepare a decree on account of certain directions
in the judgment or for non-compliance with such directions
or for other legally permissible reasons, the party, who is reqnired to
u. CHINUBHAI v. R. c. BALI (Goswami, J.)
559
comply with such directions or provisions, cannot rely upon the time
required by him, under those C1ircumstances, as running against his
-Opponent.
When a judgment is delivered in the presence of the parties clearly
announcing certain steps to be taken by the plaintiff before the decree
can be prepared, the matter stands on an entirely different footing.
Jn the present case without deposit of the deficient court fees by the
plaintiff the decree could not be instantly prepared under the law.
Time was given to the plaintiff for that purpose and there could be
no decree in existence in law until the plaintiff supplied the courts
fees.
Without the existence of the decree any application for a copy
of the decree would be futile. Therefore, on the facts of this case, in
view of the operative part of the judgment, the date of the decree
was when the plaintiff furnished the court fees as ordered.
It was
only then for the first time possible to prepare the decree in terms of
the judgment.
In this case the decree was prepared on the very day,
namely, May 6, 1976, when the court fees were furnished by the
plaintiff.
As has been observed in Lala Bal Mukand (supra) it would
have been "extravagant" for the appellant to apply for a copy of the
decree before the decree could be prepared.
On the special facts of
this case there was no default on the part of the appellant and the
appeal was not barred by limitation.
The respondent cannot
take
advantage of his own default to defeat the appellant's appeal on the
ground of limitation.
The period of 90 days, in this case, will count
from the date when the plaintiff had
deposited the court fees,
as
ordered, when only the court could take up the preparation of the
decree. It is not a case of the court omitting or delaying to prepare
the decree without any further action by a party.
Even otherwise, in the entire circumstances of the case disclosing
sheer indifference, perhaps, negligence, on the part of the Advocate,
Shri Bharatinder Singh, and no ]aches, whatever, on the part of the
appellant, we would have been inclined to condone the delay of 12
<lays under section 5 of the Limitation Act.
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In the result the appeal is allowed.
The judgment and decree of
the High Court are set aside.
We will, however, make no order as
to costs, particularly in view of the fact that counsel appearing for
both. sides expressed that there would be a sincere endeavour by the
parties to settle the matter when the records reach the High Court.
We are sure that with the good offices of counsel the High Court will
'be able to take up the appeal at an early date, if possible, to record
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a final settlement of the dispute between the parties.
With this hope
we part with the records.
P.H.P.
Appeal allowed.
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