Holding

The proviso to Order XLI Rule 1 CPC does not affect the limitation period, and the time taken by another party to obtain a certified copy of the judgment cannot be excluded; the appeal is barred by limitation.

Summary

The appellant, a plaintiff in a suit that was tried together with another suit and dismissed by a common judgment, filed an appeal in the High Court accompanied by a printed copy of the judgment but not a certified copy. He argued that the time taken by the other plaintiffs to obtain a certified copy of the judgment should be excluded under the proviso to Order XLI Rule 1 CPC and Section 12 of the Limitation Act, 1963, thereby saving the appeal from being barred by limitation. The High Court rejected this claim, holding that the proviso only dispenses with the requirement of filing multiple copies to save expense and does not affect the computation of limitation periods. The Supreme Court affirmed that the proviso cannot be used to exclude the time taken to obtain a certified copy of the judgment by another party, and that even after excluding the time for obtaining the decree copy, the appeal remained barred by limitation. Consequently, the appeal was dismissed.

Issues considered

Whether the proviso to Order XLI Rule 1 of the CPC can be invoked to exclude the time taken by another party to obtain a certified copy of a judgment for the purpose of computing limitation under Section 12 of the Limitation Act, 1963.
Whether the appeal filed by the appellant is barred by limitation despite the exclusion of time for obtaining the decree copy.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 1
CPC Amendment Act, 1976s. Section 87
Limitation Act, 1963s. 12(2), s. 12(3)

Subjects

Limitation ActCivil Procedure CodeOrder XLI Rule 1certified copy of judgmentcommon judgmentappeal limitationexclusion of timeprocedural law

Judgment

A P.A. OOMMEN \

v. 'r'
MORAN MAR BASELIUS MARTHOMA

JULY 17, 1992
-
B [N.M. KASLIWAL AND K. RAMASWAMY, JJ.)

Limitatior. Act, 1963 :
~
S. I2-Exclusion of time taken in obtaining copy of judgment appealed
c from-Applicability of Order XL! Rule I-Suit tried alongwith another
suit-Common judgment dismissing the suits-Appeal-Time taken in obtain- ..--
ing copy of judgmetit by plaintiffs in one suit-fVhether plaintiffs in the other
suit entitled to claim the benefit for purposes of limitation.

Code of Civil Procedure, I908 :
,L
D
Order XL! Rule I-Object and applicability of-whether controls the
provisions under the Limitation Act.

The appellant and Respondents Nos. 6 and 9 filed a suit in the
District Court. The suit was transferred to a Sub-Judge, who tried it along
E with another suit filed by other plaintiffs. By a common judgment he
dismissed the transferred suit as also the other suit. The plaintiffs in the
other suit applied for a certified copy of the judgment and after obtaining
the same filed an appeal before the High Court. The plaintiffs in the
transferred rnit also applied for a certified copy of judgDlent, but the
F application came to be dismissed for non-remittance of printing charges.
However they obtained a copy of decree and filed an appeal before the High
Caurt beyond the period of limitation. Copy of the judgment of the
Sub-Judge with the seal of the Court was also filed. It was explained that
they were under bona fide belief that the copy of the judgment obtained by
G the plaintiffs in the other suit could be made use of and that it was not
necessary for them to obtain the copies of judgment separately. It was
pleaded that the time taken in obtaining certified copies of judgment by
the plaintiffs in the other suit should also be excluded in the cas~ of the
plaintiffs in the transferred suit. The High Court rejected the application
and consequently did not accept the appeal. It was held that the plain-
H tiffs/appellants could not take advantage of the ·tertified copy of the
548
P.A. OOMMEN v. MARTHOMA 549

judgment obtained by another person. Being aggrieved against the said A
-( orders of the High Court, one of the plaintiffs/appellants preferred the
present appeal by special leave.

On behalf of the appellant, it was contended that since the plaintiffs
in the other suit have already filed a certified copy of the judgment, the
filing of the same by the plaintiffs in the transferred suit should have been B
dispensed with; that the proviso to Order XLI Rule 1 CPC clearly applied
to the case; that a memorandum of appeal need not necessarily be accom-
...; panied by a certifed copy of the judgment obtained by the appellant
himself; and that the copy of the common judgment obtained by the
plaintiffs in the other suit could be used by the plaintiffs in the transferred c
- suit and in this view of the matter, the appeal filed was within time.

The Respondents contended that the opposite party has neither filed
any separate application for condonation of delay nor urged any ground
J.
)
in support of their claim except stating that they bonafide believed they
could make use of the copy of common judgment obtained by the plaintiffs D
in the other suit.

Dismissing the appeal, this Court

HELD 1. The entire purpose of introducing the proviso to Order XLI
Rule 1 CPC, was to avoid extra expenses where more cases than one were E
-(
disposed of by common judgment and the Appellate Court was authorised
to dispense with the necessity of filing more than one copy of the Judgment.

-
__,,' It was no doubt made clear by adding the proviso to Order XLI Rule 1
CPC that the filing of the certified copies of the judgment could be
dispensed with where two or more appeals are filed against the common
Judgment by the same appellant or by different appellants. It only deals
F

.~ with the provision as to what documents should be accompanied along with
the memorandum of appeal. The provision has no relevance nor can
control the provisions of limitation which are contained separately under
the Limitation Act, 1963. [554-E,F]
G
2. Admittedly the plaintiffs filed the memorandum of appeal in the
High Court against the Judgment and decree passed by the Subordinate
~- Judge. The memorandum of appeal was accompanied by a certified copy
of the decree as well as a printed copy of the common judgment. The
appellant cannot claim any benefit of the proviso to Order XLI Rule 1 CPC H

..
. .:lt,
550 SUPREME COURT REPORTS (1992) 3 S.C.R.

A and as a consequence thereof the benefit of the time spent in obtaining the
\
certified copy of the judgment by the plaintiffs in the other suit. The (
proviso permits the Appellate Court to dispense with the filing of more
than one copy of the Judgment in order to save the expenses, but in the
present case the plaintiffs had already filed a printed copy of the judgment
...
~.

of the Subo~dinate Judge and as such there was no question of seeking any
B order from the Appellate Court for dispensing with the filing of more than
one C()py of the judgment. [554-G,H; 555-A,B]

3. The appellant and respondents Nos. 6 to 9 who were plaintiffs in
~·
the transferred suit had filed certified copy of the decree under challenge
C along with the memorandum of appeal and the time in obtaining the
certified copy of the dPCree can be excluded in computing the limitation
and there is no dispute that such time has been excluded but even after
excluding such time the appeal was barred by limitation. So far as the
printed copy of the judgment filed along with the memorandum of appeal,
it did not contain the necessary particulars regarding the person who .l
D made the application, the date .of application, the date of issue, the date
notified for receiving· the same as required in Rules 253 and 254 of the
Civil Rules of practice in order to entitle the appellants to claim extension·
of time under Secion 12(3) of the Limitation Act, 1963. [555-C-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1819 of
E
1992.
'')-
From the Judgment and Order dated 9.2.1984 of the Kerala High
Court in C.M.P. No. 32544of1983.

E.M.S. Anam for the Appellant.
F
G.Viswanatha Iyer, N. Sudhakaran and Ms. K.Prasanthi for the
Respondent.

The Judgment of the Court was delievered by
G KASLIWAL, J. A short but interesting question of law is involved in
this appeal. The appellant and respondents Nos. 6 to 9 filed a suit in the
Oistrict Court Alleppy which was transferred to the Court of Subordinate
Judge, Mavelikara where the suit was numbered as O.S. No. 105 of 1980.
This suit was jointly tried along with O.S. No. 21 of 1979 filed by other .
re--
H plaintiffs. The Subordinate Judge by a common Judgment dated 27.8.1~

;
P.A OOMMEN v. MARTHOMA [KASLIWAL, J.] 551

dismissed both the sllits. The plaintiffs in O.S. No. 21 of 1979 applied for A
.certified copy of the Judgment on 27.8.1982 itself while the plaintiffs in O.S.
-r No. 105 of 1980 applied for certified copy of the Judgment and decree on
28.8.1982. The certified copy of the Judgment was delivered to the plaintiffs
in O.S. No. 21 of 1979 on 20th August, 1983 and they filed First Appeal
No.504 of 1983 in the High Court on 31.10.1983. In the case of the
applications filed by the plaintiffs in O.S. No. 105 of 1980 the office called
B
upon them to produce copying sheets for the decree and printing charges
for the Judgment. Copying sheets were produced on 10.3.1983 but the
-....( printing charges for the Judgment were not remitted and as such the
I
application for copy of the Judgment was dismissed on 17.3.1983. The copy
of the decree being ready was notified for delivery on 22.3.1983 but the c
same was actually taken on 10.6.1983. The appellant and respondents Nos.

-· 6 to 9 filed appeal in the High Court on 5.11.1983 and along with the memo
of appeal a printed copy of the Judgment with the seal of the Court was
also filed. There was no indication in the printed copy of the Judgmeat as
-"---'
to on whose application the same was issued, or the date of application or
D
the date of production of printing charges or the date notified for receivng
the same or when the same was delivered and other details necessay to be
mentioned in a certified copy as required under Rule 253 and 254 of the
Civil Rules of Practice. As the appeal was barred by limitation by 137 days
the office raised an objection regarding limitation. The Registry pointed
out some more defects. The papers as such were returned for curing the E
defects. The Advocate appearing for the appellants again submitted the
-<
appeal with the following endoresment "The above appeal is filed along
with an application to receive the same to file. The above appplication may
~ be sent to the Bench for orders. Other defects are cured". The application

---
,-

referred to above was registered as C.M. No. 32544 of 1983. The applica- F
tion was also supported by an affidavit. In the affidavit it was stated that
the original suit No. 105of1980 was tried and heard along with O.S. NO.
~ 21 of 1979. The Learned Subordinate Judge passed a consolidated Judg-
ment in the two suits. The printed copies of the Judgment rendered in the
case was ar,..,lied for by the plaintiffs in the other connected suit O.S. No.21
of 1979, ana so the appellants (plaintiffs in O.S. No. 105 of 1980) were led G
to believe that it would not be necessary to obtain the printed copies of
the Judgment separately in O.S. No. 105 of 1980. It was further averred in
-
- -'"\
the affidavit that the appellants bonafidely though that the copies that
. would be made available to the plaintiffs in O.S. No. 21 of 1979 could be
~
H
'
'
552 SUPREME COURT REPORTS (1992) 3 S.C.R.

A made use of by the petitioners for preferring their appeal. The appellants
in substance placed reliance on Section 12 (3) of the Limitation Act, 1963 '
and argued that the time taken for obtaining the certified copies of the y
Judgment by the plaintiffs in O.S. No. 2~ of 1979 should also be allowed
to be excluded in the case of the appellants as well.
B Learned Single Judge of the High Court issued notice on the applica-
tion C.M.P. No. 32544 of 1983 and after bearing the other side dismised
the same. Learned Single Judge by Judgment dated 9.2.1984 dismissed the
CMP. No. 32544 of 1983 and consequently the appeal filed by the appel-
lants was not accepted on the file of the High Court. The Learned Judge
C took the view that the plaintiffs/appellants cannot take advantage of the
certified copy of the Judgment obtained by another person. The Learned

D
Judge also held that in calculating the period of limitation the Court can
reckon time only on the basis of the certified copy of the Judgment and
decree produced in the case. Aggrieved against the aforesaid Judgment of
the High Court one of the plaintiffs in O.S. No. 105 of 1980 has come in
-
appeal by grant of special leave.

In order to appreciate the controversy it would be necessary to
reproduce the relevant provisions of Order XLI Rule 1 C.P.C. as well as
the provisions of Section 12 of the Limitation Act.
E
SECTION 12 (2) & (3) OF THE LIMITATION ACT reads a:s
under:

(2) In computing the period of limitation for an appeal or an applica-

F
tion 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 degree, 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
G 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.

O.XLI RULE 1 C.P.C. WITH PROVISO reads as under:

H O.XLI : APPEALS FROM ORIGINAL DECREES :
P.A OOMMEN v. MARTHOMA (KASLIWAL, J.] 553

1. Form of appeal. What to accompany memorandum. A
(1) Every appeal shall be preferred in the forin of a memorandum
signed by the appellant or his pleader and presented to the Court or to
such officer as it appoints in this behalf. The memorandum shall be
accompanied by a copy of the decree appealed from and (unless the
Appellate Court dispenses therewith) of the judgment on which it is B
founded.

Provided that where two or more suits have been tried together and
a common judgment has been delivered therefor and two or more appeals
are filed· against any decree covered by that judgment, whether by the same C
appellant or by different appellants, the Appellate Court may dispense with
the filing of more than one copy of the Judgment.

It has been argued on behalf of the appellant that the High Court
committed an error in not entertaining the appeal under the proviso to
Order XLI Rule 1 of the Code of Civil Procedure. It was submitted that D
the High Court should have accepted and admitted the appeal for hearing
as a common Judgment was delivered in O.S. No. 21of1979 and O.S. No.
105 of 1980 and the appeal filed by the plaintiffs in case O.S. No. 21 of
1979 having been admitted the High Court should have dispensed with the
filing of a certified copy of the Judgment by the plaintiffs in O.S. No. 105 E
of 1980. The proviso to Order XLI Rule 1 C.P.C. clearly applied to the
case of the appellant and the High Court was wrong in not applying the
same inspite of the specific prayer made in this regard. It was further
contended that a memorandum of appeal need not necessaily accompany
a certified copy obtained by the appellant himself.Thus the advantage of
the printed copy obtained by the plaintiffs in O.S. No.21 of 1979 could be F
taken use of by the plaintiffs in O.S. No 105 of 1980 in filing an appeal and
if the same is allowed, the appeal filed by the plaintiffs in O.S. No. 105 of
1980 was within time.

On the other hand Learned counsel appearing for the contesting
respondents placed reliance on the Judgment of the Learned Single Judge. G
It was submitted that neither any separate application for condonation of
delay was filed nor any ground was made out in the affidavit filed by the
9th respondent who was himself an Advocate of long standing, in support
of the C.M.P. No~ 32544 of 1983. Only a bald statement was made in the
affidavit that they bona fide believed that the copies that would be made H
554 SUPREME COURT REPORTS [1992) 3 S.C.R.

A available to the plaintiffs in O.S. No. 21 of 1979 on the file of Court of the
Subordinate Judge, Mavelikara could be made use of for prefering the
appeal.

We have given our careful consideration to the arguments advanced
by Learned Counsel for the parties and have thoroughly perused the
B record. The proviso to order XLI Rule 1 C.P.C. was added by Section 87
of C.P.C. Amendment Act, 1976 w.e.f. 1.2.1977. The statement of Objects
and Reasons for the above amendment are given as under :· •

OBJECTS AND REASONS
c "Where two or more suits or appeals are disposed of by a common
Judgment, the requirement of Order XLI that the memorandum of appeal·
should be accompanied by a copy of the judgment occasions extra expen-
ses. It is intended to meet with this difficulty by providing that where more
cases than one are disposed of by common judgment the appellate court
D may dispense with the necessity of filing of more than one copy of the
judgment."

Thus the entire purpose of introducing the above provision was to
avoid extra expenses where more cases than one were disposed of by
common Judgment aµd the Appellate Court was authorised to dispense
E with the necessity of filing more than one copy of the Judgment. It was no
doubt made clear by adding the proviso to Order XLI Rule 1 C.P.C. that
the filing of the certified copies of the Judgment could be dispensed with
where two or more appeals are filed against the common Judgment by the
same appellant or by different appellants. The above Order XLI Rule 1
F contained in the Code of Civil Procedure only deals with provision as to
what documents should be accompanied along with the memorandum of
appeal. This provision has no relevance nor can control the provisions of
limitation which are contained separtely under· the· Limitation Act, 1963.
Part (III) of the Limitation Act, 1963 provides for computatio9 of period
G of limitation and Section 12 deals with exclusion of time in legal proceed-
ings with which we are concerned in the present case. So far as the case
in hand before us is concerned, the admitted facts are that the plaintiffs in
O.S. No. 105 of 1980 filed the memorandum of appeal in the High Court
against the Judgment and decree passed by the Subordinate Judge
Mavalikar dated 27.8.1982. The memorandum of appeal was accompanied
H by a certified copy of the decree as well as a printed copy of the common :
P.A OOMMEN v. MARTHOMA [KASLIWAL, J.] 555

Judgment. We are at pains to understand as to how the appellant can A
claims any benefit of the proviso to Order XLI Rule 1 C.P.C. and as a
consequence thereof the benefit of the time spent in obtaining the certified
copy of the Judgment by the plaintiffs of O.S. No. 21 of 1979. The proviso
permits the Appellate Court to dispense with the filing of more than one
. copy of the Judgment in order to save the expenses, but in the present case B
the plaintiffs in O.S. No. 105 of 1980 had already filed a printed copy of
the Judgment of the Subordinate Judge and as such there was no question
of seeking any order from the Appellate Court (High Court in the present
case) for dispensing with the filing of more than one copy of the Judgment.
The only question then remains to be considered is whether the appellant
is entitled to the benefit of Section 12 of the Limitation Act. The appellant C
and respondents Nos. 6 to 9 who were plaintiffs in O.S.No.105 of 1980 had
filed certified copy of the decree under challenge along with the memoran-
dum of appeal and the time in obtaining the certified copy of the decree
can be excluded in computing the limitation and there is no dispute that
such time has been excluded but even after excluding such time the appeal D
is barred by limitation. So far as the printed copy of the Judgment filed
with the memorandum of appeal it does not contain the necessary par-
ticulars regarding the person who made the application, the date of ap-
plication, the date of issue, the date notified for receiving the same as
required in Rules 253 and 254 of the Civil Rules of practice in order to
entitle the appellants to claim extension of time under Section 12(3) of the E
Limitation Act. ·confronted with this difficulty, the appellant and other
plaintiffs in O.S. No. 105 of 1980 sought to rely on the proviso to Order
XLI Rule 1 C.P.C. and to get the advantage of the time taken by the
plaintiffs in O.S. No. 21 of 1979 in obtaining the certified copy of the
common Judgment. We are clearly of the view that there is no justification F
nor any basis for claiming such benefit and the High Court rightly dis-
missed the CMP. No. 32544 of 1983. It is, however made clear that we are
upholding the Judgment of the High Court on different grounds and we
are not expressing any opinion on the mertis of the questions of law
decided by the Learned Single Judge. We also do not find it necessary to
advert to any case law referred in the Judgment of the High Court or cited G
before us, as in the facts and circumstances of the case there is no basis or
justification at all for the applicability of the proviso to Order XLI Rule 1
C.P.C. itself. Thus when the main bedrock of the entire case of the plaintiffs
appellants of O.S. No. 105 of 1980 falls to the ground the question of
H
556 SUPREME COURT REPORTS [1992} 3 S.C.R.

A seeking any benefit, therefore, does nor arise.
In the result we find no force in this appeal and the same is dismissed
with no order as to costs.

G.N. Appeal dismissed.