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Judgment
This revision is directed against the order dated 1561996 passed by Addl. District Judge, Srinagar whereunder learned Addl. District Judge had
returned a finding that the time required for obtaining a copy of the judgement and decree appealed against has been computed towards the
computation of time and on returning such a finding, he has held that the appeal is not barred by limitation, but is within time.
Id. Counsel for the petitioner has assailed this order on the ground'that the judgement and decree which has been appealed against before the
1st. appellate court was passed on 27121995 and the decree on 31121995. The appellants who were aggrieved of the said order which has been
passed by the court below after a prolonged litigation pending between the parties filed the appeal before the 1st appellate court and the said
appellate court without looking to the merits of Order 41 Rule 3 Civil P.C. and that finding that the appeal is within time, had passed orders,
whereunder the usufructs of the decree and judgement passed in favour of the petitioner have been denied to him and have been stayed.
Mr. Zahoor submits that as per amended Civil procedure Code, the provisions of Order 41 Sub Rule 3A of Civil P.C. provides:
(1) When an appeal is presented after the expiry of period of limitation specified therefor, it shall be accompanied by an application supported by
affidavit setting forth the facts on which the appellants relies to satisfy the court that he had sufficient cause for not preferring the appeal within such
period.
SubRule(S) of Rule 3A further makes out that
Where an application has been made under subrule (1), the Court shall not make an 'order for the stay of execution of the decree against which
the appeal is proposed to be filed so long as the court does not, after hearing under Rule 11, decide to hear the appeal.
Thus, Mr. Zahoor wants to impress upon this court that prima facie the judgement and decree which was passed in the month of December
1995 and against the said judgement and decree, appeal was filed before the 1st. Appellate Court on 2241996, is palpably beyond the period of
limitation and there is no petition required by the appellant for condonation of delay and in case any petition to that effect would have been moved
no orders of stay would have been passed unless and until notice was not given to the other party i.e the petitioner before me and it was only after
hearing the petitioner that the orders for stay of execution or otherwise would have been passed. So the contention of Mr. Shah rather
presupposed that the appeal was prima facie barred by limitation and as such, should not have been entertained, not to speak of passing any
effective orders.
Mr. Shali further submits that ordinarily the appeal is to be preferred within ninety days from the date of judgement and decree and in case any
person has preferred an appeal beyond the prescribed period under the statute, he has to make out a case that his appeal is within time and in case
he wants condonation of delay, he has to make a separate application to that effect. He has further submitted that even for computation of period
of limitation, the appellants should have moved a petition before court or atleast made a mention in their memo of appeal as to how and in what
way they are computing the period of limitation and in what manner they are to get benefit of Section 12 and explanation thereto for computation of
the period of limitation. The fact that the respondents have not done that, their appeal was incompetent and the orders passed thereon by the
Appellate Court, staying the execution on the date of motion of the "" appeal has caused grievance to the.petitioner and, as such, he has come up in
this revision petition, against the said order 6. I had the occasion to hearing the learned counsel for the parties at length and also to go through the
records of the case. 7. It is an admitted fact that the judgement and appeal has been passed in the month of December, 1995. Respondents before
me being the Department of Khadi and Village Industries Board of Jammu and Kashmir had to take a decision whether to file an appeal against the
said judgement and decree or not. So it took some time in the process of the matter and after the matter was processed, it was decided by the
Department to go in appeal against the impugned judgement and decree and obviously it moved an application through their counsel for obtaining a
copy of the judgement and decree. However, the application to this effect seems to have been moved on 2211996, though it is averred as per
proceedings in the Copying branch that the application was not accompanied by any fee, but that is bellied by the fact that two rupees more were
annexed with the application for obtaining a copy. However, a person of the appellant was asked to deposit the remaining fee without identifying as
to how much fee was to be deposited as is shown by the interim orders passed on the application in the copying branch dated 2821996. It seems
that the copy for delivery was ready on 531996, but from 531996 to 241996, the court did not function. This is born out by the records of
241996, wherein it is written that the application has come up today due to hartal of the lawyers. A quesry was put as to what was the cause of
hartal those days and I was told that one of the Advocates namely Mr. Jalil Ahmad Andrabi having been kidnapped and killed and it was due to
that disturbances that the courts were not functioning. Anyway on that date again, the court did not identify as to how much costs (estimates costs)
are to be deposited by the petitioner for the said copy, as was required under the provisions of Section 12, explanation. To make it more clear, the
working of the explanation of the Section 12 envisages:
That the date when the estimated cost of the copy is paid in by the applicant in accordance with the orders passed in this respect and the date
when the copy is ready.
So it was the estimated cost which was to be notified by the Copying branch and called upon the person of the respondents to deposit that cost
and moreover a notice to that effect was to be put on the notice board notifying the fact. So as per procedure it is the dates which are required.
Therefore, the time which is required for obtaining a copy has been defined as a time which will be the time between the date when the cost of
copy is paid in by the applicant in accordance with the order passed in this respect and the date when the copy is ready. Further more it is the
mandatory provision of law that notice is to be put up notifying this fact. So it is only on that count that the date of paying of the cost of the copy
and the date on which copy is delivered will both be excluded in obtaining the copy and these dates in between will be counted towards the period
of limitation. In case as the court does not perform its statutory duties and it is not notified or inform the person applying for the copy and the
estimated cost to be paid, the person of the appellant will not be made to suffer on that count.
Thus it is an admitted tact that the person of the appellant in the court below had filed an application for obtaining the copy and finally he was
informed on 2441996 that he will deposit the estimated cost by 1941996 and on 1941996 he has done it and it was on 2241996 that the appeal
has been filed. While computing these dates which have been spent by the person of the appellant in obtaining a copy and depositing the estimated
cost are to be computed in the time for filing the appeal. So having been done this way, the period which has been spent by the person of the
appellant in the court below, the appeal was found necessity of asking for the condonation of delay obviously and was not required to ask for such
condonation But nevertheless, it would have been in the best fitness of things that the appellant should have made a mention of all these
developments in his memo of appeal in one of the paras The appeal on this count seems to have been ill drafted. The pleading of the parties should
speak themselves.
Here in the present case, it is just Mr. Lone had drafted the appeal and he had the occasion to argue the matter. Some times there have been
occasions where appeals or pleadings are being drafted by one lawyer and subsequently another lawyer is called upon to defend or to plead the
matter. So certain things which have been taken for granted by the Draftsman at the relevant time of drafting of the case, the knowledge of them
cannot be imparted to the person who has to plead and conduct the case. Had Mr. Qaisar been very much and conduct the case. Had Mr. Qaisar
been very much liberal while drafting the appeal and made a mention of these facts, I hope and also am of the considered opinion that this occssion
would not have arisen in protracting the matter further by filing the present revision, or even the appellant court's time would not have been wasted
on this exercise to hold whether the appeal was within time or barred by limitation. This much time would have been consumed by the appellate
court in deciding the appeal finally.
Be that as.it may, but the fact remains that Mr. Lone while arguing the matter has postulated certain cases and eventulaities wherein extreme
circumstances have been put in For example he has quoted AIR 1968 page 960, where in appellants had obtained three copies of the order of
acquittal. Two were provided to the appellants immediately after their applying within a span of a day or so and another copy was obtained by the
appellants after having spent some larger time.Their lordships of the Apex Court were of the opinion that it is just possible that the appellants had
obtained copies for some other purpose within a short duration, but for filing the appeal, a copy which they have obtained and on which they have
framed opinion and preferred the appeal is to be taken into consideration and the time which has been spent in getting such copy is to be
computed, thereby the Apex Court has been liberal in computation of period of limitation by giving so liberal constitution of the provision of law.
Not only that, even in certain other cases which have arisen from this every court, their lordships of the Apex Court have condoned even months
together because of prevailing situation in the Valley.
Here in the present case, Mr. Qaisar Lone submits that he was very much asking for the copy of the judgement and decree, but because of the
fact that the courts were not functioning, so he could not have any success in obtaining a copy in time. But as and when he obtained a copy, he
filed the appeal without losing any further time.
The contention of Mr. Shan that the person of the petitioner has not been vigilant and deligent in persuing his cause, is shown by the very
proceedings which the copying branch has recorded. Had the person of the appellant been very vigilant, he should have come with the requisite
fee, obtained copy and Ijiled the appeal. The Apex Court had condemrjed such a practice and have observe that the time requisite for obtaining
certificate copy undoubtedly means ""time properly required"" and an appellant cannot in the computation of the period of limitation for filing the
appeal ask for exclusion of time which was spent negligently. The judicial pronouncements and ennuciation of law by the Apex Court is very much
appreciable, but the fact remains that the court have to see whether appellant have been negligent or in any way not prompt stands already replied
in the foregoing paras.
It may also be noted that ihe argument advanced by Mr. Shah that the appellant court had wrongly addressed itself while disposing of the
contention raised by him that instead of giving/returning a finding on the fact whether any order of stay or otherwise would have been given by the
court below without complying with the provision of Order 41 Rule 3A Civil P.C. The contention of Mr. Zahoor is not plausable on that ground
because of the fact that the question that no appeal shall be made unless provisions of subsection 3A of Order 41 CPC are not complied with,
arises only when the appeal is barred by limitation and the application for condonation of delay has been moved.
It is an admitted fact that the appellate court had firstly to decide the condonation of delay application and no orders for stay or otherwise
would be passed or issued. So this question required return of the finding whether appeal is barred by limitation or not? As shown in the foregoing
paras, the appeal prima facie was not barred by the limitation. The 1st. appellate court had at the very motion of the appeal entertained the appeal
and also given relief to the appellant regarding stay of judgement and decree, but when an application was moved before the court below, the
appellate court was called upon to determine this matter and the court has determined by passing impugned order in this revision petition.
After giving my thoughtful consideration to the arguments and submissions made at the bar, I do not find that there is any procedural or
jurisdictional error committed by the learned 1st. appellate court in passing the impugned order. The revision, as such is being dismissed and the
parties are directed that they shall appear before the court below for final arguments of the case on 21.7.1997. Records received be sent back to
the court below.