K.K. Usha, J. 1. The question referred for consideration of the Full Bench is whether the appellant is entitled to exclude the time granted under R. 242 of the Civil Rules of Practice, Kerala for producing the stamp paper as 'time requisite' for obtaining a copy of the decree appealed from, for the purpose of sub-s. (2) of S. 12 of the Limitation Act, 1963. A Bench of this Court has taken the view in Antony v. Eapen, 1961 KLT 321.
that the time granted under S. 234 of the Civil Rules of Praclice(TC) is not liable to be excluded while computing the period of limitation. The above view was followed by a learned Single Judge in Sivalingam v. Dakshinamoorthy, 1992 (2) KLT 929. In the light of the above decisions, the office took the view that appeal is filed beyond the period of limitation. The appellant contends that the view taken in the above mentioned decision is liable to be reconsidered.
2. The facts relevant are as follows:- Judgment under appeal was pronounced on 26.8.1995. Application for certified copy was filed on 29.8.1995, stamp paper was called on 25.10.1995 and it was produced on 28.10.1995. Certified copy was ready on 6.11.1995, it was notified on 9.11.1995 and the appellant took delivery of the copy on the same day. The appeal was filed on 5.2.1996. If the appellant is allowed to exclude 3 days granted under R. 242 of the Civil Rules of Practice, Kerala, the appeal is within time.
3. S. 12(2) of the Limitation Act, 1963 reads as follows:-
"12. Exclusion of time in legal proceedings-
1) XXX XXX XXX
2) In computing 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."
Rule 242 of the Civil Rules of Practice, Kerala reads as follows:-
"242. Calling for stamp papers:- Every day between the hours of 3 and 5 p.m. a list showing the applications in which records have been received and the number of stamp papers required shall be affixed to the notice board of the copying section. Such list shall remain suspended for three clear working days in accordance with R. 6, but, if the last day should fall during a vacation the list shall remain till the day after the re-opening day. Within that time, the applicant shall supply the stamp papers called for, failing which the application shall be struck off".
The works "three clear working days" were substituted for the words "three days reckoned" by way of an amendment under notification dated 25.7.1985. The Explanatory Note to the above amendment reads as follows:-
"Explanatory Note: As per R.242 read with R.6 of the Civil Rules of Practice the stamp papers required for certified copies are to be produced within 3 days from the publication of the notice calling for the stamp papers. Under the present rule the litigant public and members of the Bar are denied the opportunity of getting 3 clear working days for production of stamp papers. The amendment is intended to overcome the difficulty".
4. In V. Sivalingam v. Dakshinamurthy & Ors., 1992 (2) KLT 929 = AIR 1993 Kerala 83, a teamed Single Judge took the view that the period prescribed by R. 242 of the Civil Rules of Practice is only to save the application for copy from dismissal for three days. It cannot be pressed into service in the determination of the time requisite within the meaning of S. 12(2) of the Limitation Act. The learned Judge, as mentioned earlier, relied on a Bench decision of this Court in 1961 KLT 321 (supra). Reliance was also placed on the observation made by the Privy Council in Pramath Nath Roy v. Loe, AIR 1922 PC 352, as "no period can be regarded as requisite under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order". The learned Judge also took the view that the I decision reported in Mohammed v. Kunhammed Haji, 1973 KLJ 651, that if a holiday intervenes between the date of calling for the copying sheets and their production, the holiday can be excluded would also by implication rejects the theory that applicant is automatically entitled to the exclusion of all the three days provided under R.242. It was also the view of the learned Judge that the substitution of the words "three days reckoned" with the words "three clear working days" would not make any difference whatsoever, the learned Judge disagreed with the view taken by Andhra Pradesh High Court in In re Javvaji Venkateshwarlu, AIR 1974 AP 319, and Muthulakshmi v. Swaminathan, (1981) II MLJ 94, The learned Judge quoted with the approval a decision of the Orissa High Court, Smt. Aparajitha Dibya v. Binod Bohari Patra, AIR 1989 Orissa 271.
5. We will presently consider the Bench decision of this Court reported in 1961 KLT 321 (supra). The above case arose under R.234 of Civil Rules of Practice (1956, TC). The question considered by the Bench was whether the period allowed for deposition the printing charges on an application for copy of judgment should be excluded in the computation of the period of limitation for an appeal under S. 156 of the Limitation Act, 1908. Sub-s.(3) of S. 12 of the Limitation Act, 1908 provided that "Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded". R. 234 of the Civil Rules of Practice (T.C.) provided as follows:-
"Deposit of printing charges:- The applicant shall be informed by notice of the amount payable by him for printing charges..... He will also be directed to pay within a week of the notice that amount in Court, in default of which his application for copy shall be struck off".
The Division Bench rejected the contention raised by the appellant that since notice under R. 234 allowed him a week's time to make payment of the printing charges, the appellant was entitled to exclude that time which he has availed of in the payment of printing charges as part of 'the time requisite for obtaining a copy of the judgment'. The learned Judges took the view that "the time taken by the appellant in supplying printing charges after the same was notified to him cannot be said to be time 'necessary' on his part consistent with the diligence expected of him in the matter. The applicant ought to deposit the required charges not later than the first day on which the office is open after the day on which the printing charges are noticed; and if he neglects to do so he is not entitled to deduct the intervening days as part of the time 'necessary' or 'requisite' in obtaining the copy." According to the learned Judges, the time thus taken by him is 'a prolongation of the time' requisite for preparation of the copy caused by the neglect or indifference of the applicant. In coming to the above conclusion the learned Judges relied on the following observations by the Judicial Committee of the Privy Council in Pramatha Nath Roy v. Lee, AIR 1922 PC 352: 491.A.307:-
"No period can be regarded as requisite under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order."
Reference was also made to the following observation in J.N. Surty v. T.S. Chettyar, AIR 1928 PC 103: 55 I.A. 161:-
"The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means 'properly required', and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default".
Reference is seen made to the following observation of Edge, C.J. in Parbati v. Bhola (ILR 12 All. ?9 at 82):-
"Any "delay caused by the carelessness or negligence of a party applying for a copy cannot be taken into consideration or allowed for incomputing the time requisite for obtain ing the copy.
The requisite does not mean requisite by reason of the carelessness or negligence of the applicant; it means the time which is occupied by the officer who has got to provide that copy, in making the copy."
6. Thereafter the learned Judges have observed that it has been the consistent practice in this Court, as well as in the High Courts of Travancore-Cochin, Travancore, Cochin and Madras, not to exclude from computation the period availed of by the party in supplying the printing charges after due notification. We have gone through carefully the decisions relied on by the learned Judges. In AIR 1922 PC 352 (supra) their Lordships of the Privy Council on the facts of the case came to the conclusion that the appellant who was the defendant in the suit did not act diligently to obtain a copy of the decree or order. As per the relevant rules of the Calcutta High Court every memorandum of appeal shall be accompanied by copy of the decree or order appealed from. The appellant did not comply with this rule when he filed the memorandum of appeal on 30.8.1960. A decree had been passed in the suit against the appellant and in favour of the respondent on 14.2.1918. An application filed by the appellant to set aside the decree was refused on 26.7.1918. It is against that order he filed the appeal before the High Court. The High Court dismissed the appeal as one filed out of time. While challenging the above judgment the appellant contended that he is entitled to exclude the time requisite for obtaining a copy of the decree while computing the period of limitation as per sub-s. (2) of S. 12 of the Limitation Act, 1908, On the facts it was found that after the order was passed on 26th July no steps were taken by the plaintiff to have the order drawn up, even though after the lapse of 4 days it was competent to the defendant to apply for that purpose, he did not do so. On August 6th an application was made by the plaintiff to have the order drawn up and in August 7th the draft of the order was sent to the appellant. Even though the order was a simple one the appellant returned the draft only on 16th August. On August 28th it was signed and on September 3rd it was filed by the plaintiff. The learned Judges took the view that the appellant did not take any steps to obtain a copy of the decree or order during the period between July 30th and August 6th and again between August 7th and August 16th, which were within the appellant's control. Their Lordships took the view that the period is sufficiently great to prevent the appellant from saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude. It was in this context, the observation quoted by the learned Judges in 1961 KLT321 (supra) and by the learned Single Judge in AIR 1993 Ker. 83 (supra) was made by the Judicial Committee of the Privy Council.
7. In AIR 1928 PC 103 (supra) the appeal considered was one from the judgment of High Court of Rangoon. In view of an amendment brought into the provisions of O.41, R.1 of the Civil P.C. by the High Court of Rangoon, it was not necessary to produce certified copy of the decree or formal order along with the memorandum of appeal if the appeal is directed against a decree or order of the High Court in exercise of its original civil jurisdiction. It was found the appeal filed on the appellate side of the High Court was beyond the period of limitation prescribed. The appellant then contended that the rime during which he was procuring a copy of the decree and copy of the judgment was to exclude under S. 12(2) of the Limitation Act while computing the period of limitation for filing the appeals. The respondent contended that the benefit of the above section would be applied only to cases where Civil Procedure Code required that the memorandum of appeal should be accompanied by copies of the judgment and decree and, therefore, the appellant cannot claim the benefit of the section. Their Lordships found that there is no reference to a Civil Procedure Code or any other Code in S. 12 of the Limitation Act. But even then it was held that the time requisite for obtaining certified copy of the judgment is liable to be taken into consideration. The reasoning was that 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 way of memorandum of appeal. As to the judgment no doubt when the case does not come from up country the petitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory. After referring to the observation made by the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatoriness of some Indian practitioners. Their Lordships held that it could be achieved by the High Court being strict in applying the provisions of exclusion. It was thereafter the observation quoted in 1961 KLT 321 (supra) was made by Their Lordships. Their Lordships took the view that the time which was taken up by his opponent in drawing up the decree or by the officials in issuing the two documents is liable to be excluded. The judgment of the Rangoon High Court was therefore set aside and the appeal was remanded for fresh consideration on merits.
8. In the case considered in Parbati v. Bhola, ILR 12 All 79, there was considerable laches on the part of the appellant in applying for the certified copy. It was held that the important date, with reference to S. 12 and Art. 170 of the Limitation Act (15 of 1877), is not the date when the copy of the decree is delivered, but the date when it is ready for delivery to the applicant where he has bad notice that the copy will be ready on that date. It was in this background Chief Justice Edge made the observation which is quoted in 1962 KLT 321 (supra).
9. The above would show that all the three decisions relied on by the Bench of this Court did not consider a provision similar to the one considered under R.242 or 234 of Civil Rules of Practice. In this connection the decision of the Supreme Court in State of U.P. v. Maharaja Narain & Ors., AIR 1968 SC 960, is very relevant. In the above case the order appealed from before the High Court was dated 20.11.1962. The memorandum of appeal was filed on 29.3.1963. As per the endorsement on the certified copy of the order the copy was applied for on 15.11.1962 and the same was ready on 3.1.1963. It was contended on behalf of the respondents that the appeal was put of time in view of the fact that the appellant had applied for and obtained two other copies of the order appealed from and if time is calculated on the basis of those copies the appeal was beyond time. The High Court of Allahabad accepted the contention of the respondents that in determining the time requisite for obtaining a copy of the order appealed from, it had to take into consideration the copies made available to the appellant on the 20th and 21st December, 1962, The Supreme Court did not accept the above view. It held that the appellant could have waited till the 90 days period allowed to it by the statute was almost exhausted to apply for a copy of the order. Even then the time required for obtaining a copy of the order would have been deducted in calculating the period of limitation in filing the appeal. The expression "time requisite" cannot be understood as the time absolutely necessary for obtaining the copy of the order. What is deductible under S. 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. Sub-s. (2) of S. 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in his application for a copy of the order. Reference was made by the Supreme Court to AIR 1922 PC 352 (supra) and AIR 1928 PC 103 (supra) and it was obsered that the observations in those decisions would be relevant only when the appellant was in default. It was further observed that there can be no question of any default, if the steps taken by the appellant are in accordance with law. If we examine the facts of the present case in the light of the above decision and in terms of the provisions contained under S. 242 of Civil Rules of Practice, Kerala, the only view that can be taken is that the applicant is not at default since he has applied with the Rules by producing the stamp paper within the time granted under the Rule. If that be so, he is entitled to get the period extended under S. 12(2) of the Limitation Act by the three days granted under the Rule.
10. A similar view was taken in In re Javvaji Venkateshwarlu, AIR 1974 AP 319. It was held that when the Court requires a party to do a particular act by a particular time the party will be within his right in doing it within the time and he cannot be penalised for what he has done, according to the directions of the Court. Therefore, the time taken for filing of the copy stamps or payment of printing charges, as per the directions of the Court, cannot be counted against the party, but it must be deemed to be the part of the time requisite by the Court to furnish certified copies. While coming to the above conclusion the learned Judge relied on the observation of the Privy Council in AIR 1928 PC 103 (supra). A similar view was taken by the Madras High Court in Karuppana Gounder v. Marakkal & Ors., AIR 1991 Mad. 400. The dictum laid down by the Supreme Court in AIR 1968 SC 960 (supra) was followed by this Court in Sreevalsan Pillai v. Thankamoni Amma, 1987 (1) KLT 108. The contention that the period between the dismissal and restoration of copy application cannot be considered as time requisite for getting a copy within the meaning of S. 12 of the Act was rejected in the above Bench decision. In Lala Bal Mukand (Dead) by L.Rs. v. Lajwanti & Ors., AIR 1975 SC 1089 Their Lordships took the view that the expression "time requisite" as used in S.12(2) means all the time counted from the date of the pronouncement of the judgment which would be properly required for getting a copy of the decree, including the time which must ex-necessitatas elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of delay in preparing the decree was attributable to the default or negligence of the appellant, the later shall not be entitled to the exclusion of such period under S.12(2) of the Limitation Act.
11. Now we will consider the observations made by the Bench in 1961 KLT 321 (supra) regarding the consistent practice followed by this Court as well as the High Court of Travancore-Cochin, Travancore, Cochin and Madras. If we examine the provisions contained in the Civil Rules of Practice of the former States it can be seen that there was marked difference in the terms of the relevant rule. The provision parallel to R.242 of the Civil Rules of Practice, Kerala where contained in R.541 of the Rules of Civil Courts Guide which came into force on 1.1.1120(ME) in State of Travancore. The relevant portion of R.541 reads as follows:-
"541.Every day between the hours of 3 and 5 p.m., a list showing the applications in which the records have been received and the number of stamp papers required shall be prepared by the examiner and affixed to the Court's notice board. Such lists shall remain suspended for seven days, or if the last day is a holiday, till the next Court day. (It is open to the applicant to furnish the necessary impressed sheets as soon as the quantity required is known. The seven days are allowed to give him reasonable time, but all delay must count against him.). If the required stamp papers have not been deposited by 3 p.m. on the 8th day counting that on which the list was suspended, or, if the 8th day is a holiday then on the next court day the application shall be rejected by the Court".
The provision in Civil Rules of Practice, Cochin 1909 as contained in R.83(13) reads as follows:-
"Every day between 3 and 5 p.m., a list showing (1) the applications in which records have been received and the number of stamp papers required, and (2) applications in which additional stamp papers are called for, shall be prepared and affixed to the notice-board of the department. Such list shall remain suspended for 3 days. If the required stamp papers have not been deposited by 3 p.m. on the 4th day counting that on which the list was suspended, the application will be struck off. Between 3 and 5 p.m. on each of the intermediate days, the applications upon which the requisite deposits have been made shall be struck off the list. Lists so put up shall remain filed in the copyist department for six months and shall then be destroyed. Three days are allowed to give the applicant reasonable time for producing the stamp papers, but all delay must count against him. It is, however, open to the applicant to furnish the necessary stamp papers as soon as their probable number is known or along with the application". .
Similar provisions were there in R.83(13 of Cochin Civil Rules of Practice, 1935 except for the difference that the period of 3 day was substituted by 5 days and it was provided that if the required stamp papers have not been deposited before the 7th day the application will be struck off, instead of the 4th day. It was further provided that five clear days are allowed to give the applicant reasonable time for producing the stamp papers, but all delay must count against them. The Civil Rules of Practice and Circular Orders which came into force on being issued by the High Court of Judicature at Madras are for the guidance of Subordinate Civil Courts in the Presidency. The relevant provisions are contained in R. 129. Three day's time has been granted as in the case of Travancore Rules. It was also provided that the three days are allowed to giving applicant reasonable time, but all delay must count against him.
12. The above would show that under the Cochin, Travancore and Madras Rules there was specific provision that the time taken will not be excluded, even though stamp paper was produced within the time granted. Therefore, the consistent practice referred to by the teamed Judges was in accordance with the rules themselves. It is tree that in R. 214 which was the relevant Rule under the Civil Rules of Practice, T.C. (1956) the words 'all delay must count against him' were not there. But it is not seen that any argument was put forward before the Bench on the basis of the difference in the wording of the T.C. Rules. The amendment which was brought to the Kerala Rules in 1985 by substituting the words 'three clear working days', according to us, would show that the intention is to give full benefit of the period granted under the rule. It that be so, it cannot be the effect of the rule that the applicant is disabled from excluding the period even if he has complied into the terms of the rules. Since the present Rule do not contain the provision that 'all delay must count against him' we are of the view that the decision of the Supreme Court AIR 1968 SC 960 (supra) would be directly applicable to this case. S. 12(2) of the Limitation Act does not lay an obligation on the applicant to be prompt in producing the stamp paper. It can not be held that the applicant was guilty of negligence or indifference as he did not produce the stamp papers on the next day after it was notified.
13. Therefore with great respect to the learned Judges who decided 1961 KLT 321 and 1992 (2) KLT 929 we are constrained to hold that we can not agree with their view. We therefore overrule 1961 KLT 321 and 1992(2) KLT 929. We further hold that the appellant is entitled to exclude the time granted under R. 242 of the Civil Rules of Practice, Kerala for producing the stamp paper as 'time requisite' for obtaining a copy of the decree appealed from for the purpose of S. 12(2) of the Limitation Act, 1963. The office is therefore directed to number the appeal as one filed within the prescribed period and send up the matter for admission before the appropriate Bench.