Thankappan vs Raghavan and Others

K.P. Balanarayana Marar, J.—The substantial question of law which arises for consideration, as formulated in the appeal memorandum, is "whether the period between the date fixed for the payment of printing charges and the date on which the printing charges are paid can be considered as time requisite for obtaining the certified copy in a case where the copy application was dismissed for default but later on restored to file".

Appellant is the Plaintiff in a suit to set aside attachment of movables and for injunction. The suit was dismissed by the trial court. The application for issue of a certified copy of the judgment and decree was dismissed for non-payment of printing charges and non-production of stamp papers. The copy application was subsequently restored to file. On the basis of the copies obtained an appeal was presented before Additional District Court, Mavelikkara as A.S. No. 25/81. The lower appellate court felt that the appeal was presented beyond the period of limitation. A petition was therefore filed by the Appellant as I.A. 57/81 requesting an order that the appeal may be found as not barred by limitation. The court dismissed that petition finding that there is no valid reason to condone the delay in filing the appeal and in consequence the appeal was also dismissed as one filed out of time. Hence the second appeal.

Heard counsel on both sides.

The Kerala Civil Rules of practice do not provide for restoration of a copy application struck off the file. Rule 242 enables the Chief Ministerial Officer to strike off a copy application on the applicant failing to supply the stamp papers called for. Though there is no specific provision in the Rules of Practice enabling the Court to restore to file an application for copies that was dismissed for default for non-compliance of the direction to produce stamp papers or to deposit printing charges, the court has inherent powers to restore such an application to file and to grant copies on that application. This position is not disputed. The short question that arises for consideration is whether the period between the date of dismissal of the copy application and the date of restoration can be taken as the time requisite for obtaining a copy for the purpose of appeal.

Relying on the Division Bench decision of this Court in Sreevalsan Pillai v. Thankamoni Amma 1987 (1) KLT 108, learned Counsel for the Appellant submits that the period between the date of dismissal and the date of restoration of the copy application can be considered as the time requisite for obtaining a copy within the meaning of Section 12 of the Limitation Act. In that case a preliminary objection was raised that the appeal was barred by time. The contention was that the application for certified copy of the order appealed against was dismissed for non-payment of printing charges but subsequently restored after 11 months. The question arose whether the period between the dismissal of copy application and its restoration can be considered as time requisite for getting a copy. After quoting a passage from State of Uttar Pradesh Vs. Maharaj Narain and Others, the Division Bench observed that the contention that the appeal is barred by time is without merit and the preliminary objection wais overruled. The question involved in this case that is whether the period between the date of dismissal and the date of restoration of the application can be considered as time requisite for getting a copy within the meaning of Section 12 of the Limitation Act is not seen to have been considered by the Supreme Court in the passage quoted in the judgment of the Division Bench. After referring to the provision contained in Section 12(2) of the Limitation Act the Supreme Court in the passage quoted observed that there is no justification for restricting the scope of that provision. It was further held by the Supreme Court that lthe court not only will have to see whether the appeal is in time on the basis of the information available from the copy of the order filed along with the memorandum of appeal but it must go further and hold an enquiry whether any other copy had been made available to the Appellant and if so, what was the time taken by the court to make available that copy. This according to Supreme Court would lead to a great deal of confusion and enquiries into the alleged laces or dilatoriness in respect not of copies produced with the memorandum of appeal but about other copies which he might have got and used for other purposes with which the court has nothing to do. The Division Bench has no doubt held that the appeal in that case was not barred by time. But no specific observation is seen made that the period between the dismissal of the copy application and its restoration can be considered as time requisite for getting a copy. A contention is seen to have been raised by the counsel for the Respondent that the period cannot be considered as time requisite for getting a copy. It has to be inferred that the court has rejected that contention from the observation contained in paragraph (2) of the judgment.

Learned Counsel for the Appellant has drawn my attention to the decision of the Andhra Pradesh High Court in Iqbal Singh Vs. A.V. Subba Rao and Others, . On identical facts the Andhra Pradesh High Court held that when the copy application is restored by a subsequent application, the date for computing the period of limitation is not the date on which the second application is filed but the date when the ''original application was filed. The order of restoration revives the original application for the purpose of computing the time for filing an appeal.

Almost a century back the Madras High Court in Ramanuja Ayyangar v. Narayana Ayyangar 1895 ILR Mad 374, held that an application put in''explaining the circumstances which prevented the stamps being produced within the period allowed by the court and praying for restoration of the previous application must be considered a continuation of the former one for the purpose of computing the time allowed by the Limitation Act within which an appeal should be preferred. This view was again reiterated by the Madras High Court in S. Berumull Sowcar Vs. P. Velu Gramany, . Therein it was held that where an application for copies is struck off for non-deposit of requisite stamp papers and a subsequent petition is put in for restoration of the previous application the court has power to restore the original application and to consider the subsequent application as a continuation of the original application for the purpose of computing the time in filing an appeal.

The Madras High Court had occasion to consider this matter again in G. Hari Prasad Vs. Chief Conservator of Forests, Madras and Another, . Therein it was held that one of the factors that may have to be taken into account in deciding whether the jurisdiction should be exercised in any given case to restore to file an application for copies dismissed for default is how it will affect the limitation for purposes of appeal. It was observed that the jurisdiction to restore to file an application for copies dismissed for default should be exercised only after notice to the Respondents in the contemplated appeal. The Madras High Court further observed that the question of condoning the laches of the applicant will, in such cases, have to be dealt with on the application of principles analogous to those on which an application u/s 5 of the Limitation Act will be dealt with.

I am in respectful agreement with the views of the Madras High Court and the High Court of Andhra Pradesh in the decisions cited above. I am therefore of the view that the period between the dismissal of a copy application and its restoration can be considered as time requisite for getting a copy within the meaning of Section 12 of the Limitation Act. When the court grants the request for restoration of the copy application the original application gets revived and for all purposes the period of limitation has to be computed on the basis of the copies obtained on that application with reference to the date of that copy application.

This does not mean that every request for restoration of a copy application should be allowed by the court and certified copies and printed copies be granted on the basis of such applications. The Madras High Court in G. Hari Prasad Vs. Chief Conservator of Forests, Madras and Another, has pointed out that one of the factors that has to be taken note of is whether the restoration will affect the rights of the opposite party. If a request for restoration is made within the time allowed for filing an appeal there may not be any difficulty and the opposite party will not be deprived of any rights. But the position is different in a case where the time to file an appeal has run out by the date of filing the application for restoration. In such cases, as observed by the Madras High Court in G. Hari Prasad Vs. Chief Conservator of Forests, Madras and Another, the jurisdiction to restore to file an application dismissed for default should be exercised only after notice to the opposite side and the question of condonation has to be dealt with on the application of principles analogous to those on which the application u/s 5 of the Limitation Act will be dealt with.

Applying the principles enunciated above it is seen that the appeal before the lower appellate court was filed within the period prescribed. The suit was dismissed on 30th October 1979. Copy application was presented on 3rd November 1979 and it was dismissed on 5th February 1980. It was restored to file and Petitioner was directed to deposit printing charges on or before 22nd February 1980. Printing charges were deposited on 20th February 1980 and stamp papers were furnished on 21st February 1980. The date fixed for appearance for receiving the copy was 11th September 1980. The copy was taken only on 26th September 1980. The appeal was presented on 1st October 1980. The copy application having been restored the time taken for obtaining the copy on the copy application restored has to be excluded. In other words, the period between the date of dismissal of the copy application and its restoration has also to be considered as time requisite for getting a copy. If that be so, the appeal was presented in time. The court below was wrong in finding that the appeal was presented beyond time and in dismissing I.A. 57/81.

For the reasons stated above the appeal is allowed and the judgment and decree of the court below are set aside. I.A. 57/81 in A.S. 25/81 before Additional District Court, Mavelikkara is allowed and it is found that the appeal was filed within time. The lower appellate court shall restore the appeal to its file and dispose of the same on merits. No costs. The parties shall appeal before Additional District Court, Mavelikkara on 27th August 1993.