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Ramalingam Pillai v. Arunachalam Pillai And Ors.
Factual and Procedural Background
These petitions were filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay in preferring Second Appeals to this Court against the common judgment in A.S. Nos. 46 and 47 of 1986, District Court, South Arcot at Cuddalore. The District Court passed the common judgment and decrees on 14-8-1987.
The petitioner avers that he instructed his counsel to apply for certified copies immediately after the disposal on 14-8-1987 but, under the impression the counsel had filed the copy application, did not follow up until 13-11-1987. On 16-11-1987 an application for copies was made; the copies were prepared on 29-1-1988 and delivered on 1-2-1988. The petitioner further stated that he suffered from jaundice and fever from 22-1-1988 until about 8-4-1988 and only after recovery arranged for the preferring of Second Appeals: the Second Appeals were ultimately preferred to this Court on 19-4-1988. The petitioner sought condonation of delay, asserting the delay was not wilful or wanton.
The respondents filed a common counter-affidavit denying the illness, noting that the copy application was filed only on 16-11-1987 (after the expiry of the prescribed period), and pointing out absence of any supporting affidavit from the counsel or his clerk to explain the delay. They emphasized the petitioner had not been diligent, questioned the credibility of his explanations, and noted no explanation was given for the period between 5-4-1988 and 19-4-1988. The respondents prayed for dismissal of the petitions.
Procedurally, these petitions sought relief under Section 5 of the Limitation Act to condone delay in filing Second Appeals; S.A.SR. Nos. 30993 and 30990 of 1988 are the serial references to the matters that will be affected by the Court's determination.
Legal Issues Presented
- Whether the petitioner is entitled to condonation of the delay in filing Second Appeals under Section 5 of the Limitation Act, 1963, given the factual timeline presented.
- Whether the time spent in obtaining certified copies of the judgment and decree can be excluded from the period of limitation where the application for copies was made after the prescribed period had already expired (in light of Section 12 / Sub‑section (2) principles).
- Whether the petitioner has shown sufficient cause ("reasonable grounds") for not filing the Second Appeals within the prescribed period such that condonation under Section 5 should be granted.
Arguments of the Parties
Petitioner's Arguments
- He had instructed his counsel immediately after the disposal on 14-8-1987 to obtain certified copies for preferring Second Appeals and believed the counsel had applied for the copies.
- He only found out on 13-11-1987 that copies had not been applied for, whereupon an application was filed on 16-11-1987 and copies were delivered 1-2-1988.
- He was ill (jaundice and fever) from 22-1-1988 to about 8-4-1988, which prevented him from moving about and from pursuing the matter earlier.
- Given these circumstances, the delay was not wilful or wanton and ought to be condoned.
Respondents' Arguments
- The copy application was filed only on 16-11-1987, after the expiry of the prescribed 90-day limitation period (which ended on 12-11-1987).
- No supporting affidavit was filed by the counsel or his clerk to corroborate the petitioner's account that the counsel failed to act despite instructions.
- The illness claimed by the petitioner was denied; the petitioner had not been diligent and could perform other duties during the period, undermining the illness claim.
- Even after obtaining copies on 1-2-1988, the petitioner did not file the Second Appeals until 19-4-1988 and provided no explanation for the delay between 5-4-1988 and 19-4-1988. They therefore sought dismissal of the petitions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Thirumala v. C.K. Anaverareddi, A.I.R. 1934 Madras 306 | Held that the time requisite under Section 12 is the time beyond the appellant's control occupied in obtaining the copy which accompanies the memorandum of appeal, not a hypothetical shorter period that might have been occupied had the application been made earlier. | The Court relied on this principle to determine that because the petitioner made the copy application after the period of limitation had expired, he cannot claim to exclude the time taken to obtain copies when computing the period of limitation for Article 116(a). |
| Kamaraju v. Sarma, (1942) 2 M.L.J. 104; I.L.R. 1942 Mad. 568; A.I.R. 1942 Madras 604 | Observed (per King, J.) that Section 12 assumes the time requisite for obtaining the copy must begin before the prescribed period is over. | The Court invoked this observation to support the conclusion that the time for obtaining copies cannot be excluded if the application for copies commenced after the limitation period had already expired. |
| Partha Sarathy v. State of Andhra Pradesh, A.I.R. 1966 Supreme Court 38 (reported as (1965) M.L.J. (Crl.) 831) | Explained Sub‑section (2) of Section 12: exclusion of time is meant to cover time intervening between the commencement and termination of the limitation period; it cannot be used to exclude time before commencement or after termination of the period. | The Court cited this reasoning to underline that allowing exclusion of time taken after the period would lead to anomalous results and is not the legislative intention; hence exclusion was not available to the petitioner. |
| Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd., (1961) 2 M.L.J. 131 S.C. : (1961) 2 S.C.J. 556 | Interpreted the expression "within such period" to mean the period ending with the last day of limitation prescribed. | The Court used this interpretation to conclude that the petitioner's inability to file on the last day was not for reasons beyond his control but for failure to make necessary arrangements; consequently, the petitioner had no sufficient cause to justify condonation. |
Court's Reasoning and Analysis
The Court proceeded by establishing the relevant statutory period and the factual timeline. The common judgment and decrees were passed on 14-8-1987; Article 116(a) of the Limitation Act prescribes ninety days for preferring a further appeal to this Court, so the period expired on 12-11-1987.
The petitioner applied for certified copies on 16-11-1987 (four days after expiry) and obtained copies on 1-2-1988, later preferring Second Appeals on 19-4-1988. Because the application for copies was filed after the expiry of the limitation period, the Court held the petitioner could not exclude the time spent obtaining the copies when computing the ninety-day period under Article 116(a).
The Court relied on authority interpreting Section 12 of the Limitation Act (Thirumala; Kamaraju; Partha Sarathy) to the effect that the benefit of excluding time taken to obtain certified copies applies only where the time for obtaining copies falls within the prescribed limitation period (i.e., the time required for obtaining the copy must begin before the limitation period expires). Allowing exclusion where the copy application is filed after expiry would permit a party to wait until the limitation period ran out and then apply for a certified copy and claim exclusion — an anomalous result contrary to legislative intent.
Applying the legal principles to the facts, the Court computed the delay as running from 13-11-1987 to 19-4-1988 (159 days). The petitioner had argued lack of diligence attributable to counsel and his illness; the Court found these explanations unacceptable for the following reasons stated in the opinion:
- No supporting affidavit was filed by the counsel or the counsel's clerk to substantiate the claimed failure by counsel to make the copy application.
- It was improbable that the petitioner, after instructing counsel, would not contact counsel until 13-11-1987; the Court found the petitioner's claimed impression that the application would have been filed to be unbelievable.
- The illness claimed (22-1-1988 to 8-4-1988) did not satisfactorily explain the totality of the delay, in particular the period after recovery and the period 5-4-1988 to 19-4-1988 for which no explanation was provided.
- The interpretation of "within such period" (Ramlal et al.) supported the view that the petitioner had failed to make necessary arrangements even by the last day and therefore had not been prevented by circumstances beyond his control from filing within time.
Consequently, the Court concluded the petitioner had not shown sufficient cause under Section 5 to justify condonation of the total delay of 159 days.
Holding and Implications
Holding: The petitions for condonation of delay were dismissed. The Court held that because the application for certified copies was filed after the prescribed period of limitation had expired, the time taken to obtain those copies could not be excluded in computing the period of limitation, and the petitioner had not demonstrated sufficient cause under Section 5 of the Limitation Act.
Direct Implications:
- The petitions for condonation of delay were dismissed and S.A.SR. Nos. 30993 and 30990 of 1988 were rejected.
- Under Section 66(2) of the Tamil Nadu Court-fees and Suits Valuation Act, the appellant is entitled to a refund of half the court-fee paid on the memoranda of Second Appeals.
The opinion does not purport to establish a new legal doctrine; it applies existing principles on exclusion of time for obtaining certified copies and on the scope of "sufficient cause" under Section 5 to the facts, and therefore the decision's effect is the direct dismissal of the petitions and the indicated refund order.
1. In these petitions filed under Section 5 of the Limitation Act, 1963, the petitioner has prayed for the condonation of the delay in preferring Second Appeals to this Court against the common judgment in A.S. Nos. 46 and 47 of 1986, District Court, South Arcot at Cuddalore. In the common affidavit filed in support of these petitions, the petitioner has stated that after the disposal of the appeals by the Court below on 14-8-1987, he had instructed his counsel to apply for copies of judgment and decrees for preferring Second Appeals and as he was under the impression that the necessary copy application would have been filed, he did not contact his counsel till 13-11-1987. The affidavit further proceeds to state that on 13-11-1987, when the petitioner contacted his counsel, he was informed that copies had not been applied for and thereupon, the petitioner is stated to have asked for an application to be made for obtaining the copies and an application was also made on 16-11-1987 and the copies were made ready on 29-1-1988 and delivered on 1-2-1988. The petitioner has further stated that from 22-1-1988 till 8-4-1988, he was suffering from jaundice and fever preventing him from moving about and only after his recovery by the first week of April, 1988, the petitioner contacted counsel, got the copies and made arrangements for the preferring of the Second Appeals on 10-4-1988, when the petitioner was informed that an application to condone the delay should also be filed. Having regard to the circumstances so set out in the affidavit, the petitioner claimed that the delay is neither wilful nor wanton and deserves to be condoned.
2. In the common counter-affidavit filed in opposition to these petitions, the respondents have stated that though the appeals were disposed of by the Court below on 14-8-1987, the copies of judgment and decree were applied for only on 16-11-1987 and that in the absence of any supporting affidavit either from the counsel who appeared in the Court below or his clerk to explain the delay in filing the copy application in spite of instructions contra given by the petitioner, the reason for the delay is unacceptable. The illness form which the petitioner is stated to have suffered was also denied. The petitioner, according to the respondents, had not been diligent at any stage and while he has been able to attend his other duties during the period in question, it is difficult to believe that he has not been able to make arrangements for the filing of the Second Appeals. It was also pointed out that though the copies had been obtained on 29-1-1988, there was no explanation for the non-filing of the Second Appeals before this Court till 19-4-1988. The respondents, therefore, prayed for the dismissal of these petitions.
3. The common judgment and decrees in A.S. Nos. 46 and 47 of 1986, District Court, South Arcot at Cuddalore, were passed on 14-8-1987. Under Article 116(a) of the Limitation Act, 1963, a period of ninety days is prescribed for preferring a further appeal to this Court and the time commences to run from the date of the decree or order. The petitioner made an application for obtaining copies of the common judgment and decrees only on 16-11-1987 and after paying the charges, had obtained the necessary copies on 1-2-1988 and preferred the Second Appeals before this Court on 19-4-1988 enclosing the judgments and decrees so obtained by him. The application for copies of the judgment and decrees had thus been made four days after the expiry of the period of limitation provided for under Article 116(a) of the Limitation Act, 1963, on 12-11-1987. The petitioner, having regard to the making of the application for copies of judgment and decrees after the expiry of the period of limitation, cannot exclude the time taken for obtaining the copies. In Thirumala v. C.K Anaverareddi A.I.R. 1934 Madras 306, a Full Bench of this Court has - held that the time requisite in Section 12 of the - Limitation Act is the time beyond the appellant's control, occupied in obtaining the copy Which accompanies the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for copy had been filed at some other date. Therefore, when the copies accompanying the memorandum of Second Appeals are scrutinised, it is seen that the copy application had been filed after the expiry of the period of limitation provided for under Article 116(a) of the Limitation Act, 1963. No doubt, there is no time limit as such for making an application for obtaining copy of the judgment and decree intended to be appealed against, but only if such an application is made within the period of limitation prescribed for preferring the appeal, the time requisite for obtaining the copies shall be excluded in computing the period of limitation provided for under the Limitation Act. If, on the other hand, where such an application is made after the expiry of the period of limitation prescribed for preferring an appeal, then the appellant proposing to preferring an appeal is not entitled to the benefit of the deduction of the time requisite for obtaining the copies in the matter of computing the period of Limitation, Rightly, therefore, King, J., observed in Kamaraju v. Sarma (1942)2 M.L.J.104 : I.L.R. 1942 Mad.568 : 203 I.C.5. : A.I.R. 1942 Madras 604 at 606 that Section 12 assumes that the time requisite for obtaining the copy of decree must begin before the prescribed period is over. It will be relevant in this connection to notice the decision of the Supreme Court reported in Partha Sarathy v. State of Andhra Pradesh (1965) M.L.J. (Crl.)831 : (1965)2 S.C.J. 601 : (1965)2 I.T.J. 615 : (1965)2 Com.LJ. 178 : A.I.R. 1966 Supreme Court 38 where the Court observed as follows:
...Now, coming to Sub-section (2) of Section 12 of the Limitation Act, the object of the said subsection is clear and it is to enable a party who seeks to file an appeal against an order to obtain a copy thereof, for without such copy he cannot make an effective representation against the validity of the order. For that reason, in computing the period of limitation, the time taken for obtaining a certified copy of the order is excluded. It excludes time in the course of computation it does not add to the period of limitation any period earned earlier. In computing or calculating the period of limitation from a particular point the sub-section enables the exclusion of a time from that period caused by an event that intervened between the commencement and the termination of the said period. It has no concern with any events interior to the commencement of the period of limitation or posterior to the said period. If time taken for obtaining a copy of the order before the commencement of the period of limitation could be excluded, on the parity of reasoning, time taken for obtaining a copy of the order after the period of limitation also could be excluded. This would lead to an enomalous position; a party can keep quiet till the period of limitation has run out and thereafter apply for a certified copy of the order and claim to exclude the time taken for obtaining the certified copy of the order from the period of limitation. That could not have been the intention of the Legislature.
On the principles laid down in the decisions referred to above, it is clear that the petitioner, who had admittedly made an application for copies of the judgment and decrees after the expiry of the period of limitation, cannot claim to exclude the time taken for obtaining the copies while computing the period of ninety days under Article 116(a) of the Limitation Act, 1963.
4. Earlier, it has been noticed that the prescribed period of limitation for preferring - the Second Appeals had expired on 12-11-1987 and that the Second Appeals were preferred only on 19-4-1988. In as much as the petitioner is not entitled to exclude the time spent in obtaining the copies, it has to be taken the delay in this case is from 13-11-1987 till 19-4-1988. In other words, the delay is 159 days and not 84 days as stated by the petitioner.
5. The petitioner in his affidavit has attempted to explain the delay by throwing the blame on his counsel. The claim of the petitioner that though he had instructed his counsel to apply for copies immediately after the disposal of the appeals by the court below and that counsel did not do so, is difficult to accept. If the counsel had either by oversight or an inadvertent omission failed to file a copy application despite instructions of the petitioner, nothing prevented the counsel or even his clerk from saying so in the form of a supporting affidavit. The inaction attributed to the counsel is, therefore, unacceptable. It is also difficult to believe that the petitioner did not bother to contact the counsel till 13-11-1987, if he had already instructed counsel to file an application for copies. That the petitioner entertained an impression that the copy application would have been filed is unbelievable. It is obvious that these excuses have been deliberately given by the petitioner in order to cover up his laches in not having made the necessary arrangements for filing a copy application prior to the expiry of the period of limitation prescribed under Article 116(a) of the Limitation Act, 1963. The question whether the petitioner had sufficient cause for not preferring the Second Appeals within the time prescribed under Article 116(a) has to be considered on the basis whether the petitioner had shown cause why he did not file the Second Appeals on 12-1-1987. In Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. (1961)2 M.L.J. 131 S.C. : (1961)2 S.C.J. 556 the expression "within such period" was interpreted to mean the period ending with the last day of limitation prescribed. Looked at from that point of view, it is obvious that the inability of the petitioner to file appeals before this Court on 12-11-1987 was not on account of reasons beyond his control, but owing to his not having made the necessary arrangements for obtaining the required copies even on the last day. The circumstance that the petitioner applied for copies after the expiry of the period of limitation and obtained the same on 1-2-1988 and preferred the Second Appeals on 19-4-88 would not make any difference in he interpretation of the expression "within the period". Occurring in Section 5 of the Limitation Act, 1963. Though the petitioner claimed that from 22-1-1988 till about 8-4-1988 he had been suffering from jaundice and fever and was advised to take rest, it is difficult to accept that the petitioner was unable to even to transmit the relevant records to the counsel for the purpose of preferring the Second Appeals minimising the delay. In any event, there is absolutely no explanation even attempted regarding the delay between 5-4-1988 till 19-4-1988. Thus even considering the question of sufficient cause, the petitioner appears to have had none, for, as noticed earlier, he was unable to prefer the Second Appeals, on the ninetieth day for the simple reason that he had not made arrangements for obtaining the required copies even on that date. There is no believable explanation offered by the petitioner for the omission to apply for the copies of the judgment and decrees prior to the expiry of the period of limitation and the petitioner has also not attempted within the prescribed period. Section 5 of the Limitation Act contemplates cases where a party having obtained all the required copies wall before the expiry of the period of limitation prescribed for preferring an appeal has been unable to do so even on the last day owing to circumstances beyond his control and thus viewed, the petitioner cannot be permitted to approach this Court and ask for the condonation of the delay of 159 days. Consequently, these petitions are dismissed. S.A.SR. Nos. 30993 and 30990 of 1988 will stand rejected. Under Section 66(2) of the Tamil Nadu Court-fees and Suits Valuation Act, the appellant will be entitled to a refund of half the Court-fee paid on the memoranda of Second Appeals.
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