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Chunilal Jethabhai v. Dahyabhai Amulakh

Bombay High Court

Aug 27, 1907

Judgment

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Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioners filed a Second Appeal on 6 April 1907 against an order dated 20 December 1906 (Appeal No. 399 of 1905 on the file of the District Court of Ahmedabad). At that time they tendered all necessary copies except the certified copies of (a) the order of the first Court, (b) the decree of the appellate Court and (c) the decree of the High Court in the original suit. The certified copies of the first Court's order and of the appellate decrees in the original suit were subsequently filed on 10 June 1907.

The Registrar returned the memorandum of appeal as being beyond time, treating the appeal as having been presented only on the day when the remaining certified copies were filed (10 June 1907). The referred question to the court was whether the Registrar was correct in treating the appeal as presented only when all the certified copies were filed and therefore as time-barred.

Legal Issues Presented

Whether the Registrar was right to treat the memorandum of second appeal as presented only when the remaining certified copies (from the first Court and appellate decrees) were filed, thereby holding it to be time-barred.
Whether Rule 25(2) of the Court (requiring memoranda of second appeals to be accompanied by copies of decrees and judgments of both lower Courts) fixes the time at which those documents must accompany the memorandum for the purposes of limitation.
Whether a Court rule (such as Rule 25) can add to or modify the conditions for presentation and computation of limitation as prescribed by the Limitation Act and the Code of Civil Procedure.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramchandra Sadashiv v. Laxman Sadashiv (1906) 8 Bom. L.R. 892	Cited as being "in pari materia" by one judgment (Chandavarkar, J.) and relied on in support of the conclusion reached there.	Chandavarkar, J. regarded the case as in pari materia and made the rule absolute on that basis. Heaton, J. expressly held that the decision has "no bearing" on the question before the court because it dealt with a different provision (construction of words in Article 179 of Schedule II of the Limitation Act) and thus cannot be cited as authority for the present issue.
Thomas v. Kelly (1888) 13 App. Cas. 506	Illustrated the point that words such as "in accordance with law" may allow a certain degree of latitude in observance of the law (elasticity of expression).	Heaton, J. cited this case to explain the reasoning used in Ramchandra v. Laxman (i.e., latitude in interpreting "in accordance with law") but concluded that those considerations do not apply to the present question which turns on different sections of the Civil Procedure Code and the Limitation Act.

Court's Reasoning and Analysis

The court examined the relevant court rules and statutory provisions and proceeded in these analytical steps (as set out in the opinion):

Identification of the court rules: Rule 17 (Chapter V, Part V, High Court, Appellate Side) lists five requirements for admission to the register: (a) duly stamped, (b) in the form, (c) contain particulars required by law, (d) accompanied by necessary copies, and (e) presented within time. Rule 17 vests the Registrar with authority to decide questions under it and provides that if the Registrar returns a memorandum of appeal, the appellant may apply to a Judge to direct registration. Rule 18 permits the Registrar to reject or return memoranda for reasons specified in Section 543 of the Code. Rule 25(2) requires memoranda of second appeals to be accompanied by copies of the decrees and judgments or orders of both lower Courts; Rule 25(3) addresses appeals in execution proceedings.
The court observed that Rule 25 does not expressly fix any time at which the documents mentioned in Clauses (2) and (3) are to accompany memoranda or applications. From this the court concluded that the Registrar may accept a memorandum presented within time for limitation purposes but may later return it for non-compliance with Rule 25 so that the necessary documents can be filed.
The court termed the accompaniments required by Rule 25 as "extraneous to the memorandum of appeal" for the purpose of limitation and emphasized that the Limitation Act is of a restrictive character and must be strictly construed.
Heaton, J. provided a detailed statutory construction:
- Section 541 of the Code (applicable to appeals from an original decree) requires an appeal to be accompanied by a copy of the decree appealed against and, unless dispensed with, the judgment on which it is founded — thereby making such accompaniment essential to the "presentation" of an appeal under the Code.
- The Limitation Act, by Section 12, expressly excludes "the time requisite for obtaining a copy of the decree appealed against" and "the time requisite for obtaining a copy of the judgment on which it is founded" when computing the period of limitation for an appeal. The court took this to imply that for limitation purposes an appeal is presented within time if it is accompanied by the copies specified in Section 541 and presented within the period resulting from the mode of computation under Section 12.
- Section 587 of the Code makes Section 541 applicable to second appeals, and the term "appeal" in Section 12 of the Limitation Act includes both appeals from original decrees and appeals from appellate decrees. Therefore, the same rules governing presentation and the exclusion of time for obtaining copies apply to second appeals.
- From these provisions the court concluded that for the purpose of limitation a second appeal is duly presented if it is accompanied by copies of the decree and the judgment appealed against (i.e., the appellate decree and its supporting judgment); there is no statutory requirement that copies of the first-instance decree and judgment must accompany the second appeal for it to be treated as presented within time.
The court then addressed the relationship between court-made rules and statutory limitation provisions. It recognized that the Court has power under Section 652 of the Code to make rules, but such rules must be "consistent with" the Code and cannot modify conditions of limitation expressly or by necessary implication set by the Limitation Act. Thus no rule of the Court can add to or modify the Limitation Act's conditions for presentation/limitation.
Having confined the scope of Rule 25 to matters other than the due presentation for limitation (for example, proper assessment of court-fee or for deciding under Sections 551 or 552 whether the second appeal should be dismissed or admitted), the court concluded that Rule 25 is intra vires but its operation must be limited so that it does not affect the computation of limitation or the date of presentation for that purpose.
On these grounds the judges (Chandavarkar, Heaton and Knight, JJ.) concluded that the Registrar was incorrect to treat the appeal as presented only when all certified copies were filed and thus to hold it time-barred. The court therefore made the rule absolute (i.e., directed relief).

Holding and Implications

Core Ruling: The court made the rule absolute — it held that the Registrar was not correct to treat the memorandum of second appeal as presented only on the date when the subsequently-filed certified copies were produced for the purpose of computing limitation. The court directed that each party should have their own costs.

Direct consequences for the parties:

The return of the memorandum of appeal as time-barred by the Registrar was disapproved and set aside by the court (the rule was made absolute).
The court ordered that each party bear their own costs.

Broader implications:

The opinion clarifies that for the purpose of limitation a second appeal is presented if accompanied by the copies required by Section 541 (as applied by Section 587) and the computation under Section 12 of the Limitation Act. Copies of first-instance decrees and judgments, though required by Rule 25 for other administrative or substantive purposes, need not accompany the second appeal at the moment of presentation for limitation to be satisfied.
The court stated explicitly that "This decision will govern the various other cases in which the same point is involved," indicating its application to similar future cases.

All content in this summary is derived exclusively from the provided opinion and does not add or infer information beyond the opinion's text.

Show all summary ...

1. In this case it appears that the petitioners have filed a Second Appeal against the order dated the 20th December 1906, in Appeal No. 399 of 1905 on the file of the District Court of Ahmedabad on the 6th of April 1907 with all the necessary copies except the certified copies of the order of the first Court and of the decree of the appellate Court and of the decree of the High Court in the original suit. The said certified copies of the order of the first Court and of the appellate decrees in the original suit were filed on the 10th June 1907.

2. The Registrar, however, directed the appeal to be returned as being beyond time.

3. The appeal as presented on the 6th of April 1907 was in time, but the Registrar treated it as having been presented on the day on which the remaining copies were filed and has treated it as time-barred.

4. The question referred to us is whether he was right in so doing.

5. By Rule 17, Chapter V, Part V, of this High Court, Appellate Side, the Registrar shall admit to the register all memoranda of appeal which

(a) are duly stamped,

(b) are in the form,

(d) are accompanied by the necessary copies, and

(e) are presented within the time prescribed for the same.

The Registrar shall decide all questions under this rule and if he returns a memorandum of appeal, the appellant may apply to a Judge to direct registration.

6. Rule 18 provides that the Registrar may reject or return for amendment any memorandum of appeal for the reasons specified in Section 543 of the Code of Civil Procedure,

7. Rule 25(2) says : "Memoranda of second appeals or applications for the revision of appellate decrees or orders, must be accompanied by copies of the decrees and judgments or orders of both the lower Courts.

(3) Appeals in execution proceedings must be accompanied by copies of the decrees sought to be executed as well as by copies of the order of the lower Court or Courts.

8. Now, in Rule 17, it will appear, there are five necessary points set out above and by the latter part of it the Registrar is to decide all questions thereunder. It is obvious, therefore, that it rests with him to decide one or more of the points, stated in the said five points.

9. Rule 25 expressly does not fix any time at which the documents mentioned in Clauses (2) and (3) are to accompany the memoranda, applications and appeals in execution proceedings thereunder specified.

10. Therefore, it appears to us that for purposes of limitation, the Registrar may accept the memoranda, applications or appeals in execution proceedings but may return them for the requirements of Rule 25(2) and (3) to be complied with.

11. In our opinion the accompaniments directed under Rule 25 are extraneous to the memorandum of appeal, application or appeal in execution, and, of course, it must be remembered that the Limitation Act being an enactment of a restrictive character must be strictly construed.

12. We are of opinion that the case of Ramchandra Sadashiv v. Laxman Sadashiv (1906) 8 Bom. L.R. 892, is in pari materia and accordingly we make the rule herein absolute and direct each party to have their own costs.

13. This decision will govern the various other cases in which the same point is involved.

Chandavarkar, J.

14. Rule No. 25, Clause (2) of this Court, the legality and construction of which for the purposes of limitation are now in dispute, requires that ''memoranda of second appeals ... must be accompanied by copies of the decrees and judgments or orders of both the lower Courts."

15. Ever since the rule came into force in 1882, it has been the uniform practice of this Court to construe it as laying down that a second appeal, presented within the period prescribed in Article 156 in Schedule II to the Limitation Act but accompanied only by copies of the decree and judgment appealed against and not by copies of the decree and judgment of the Court of first instance, shall be rejected as not having been presented in time, unless, the latter copies having been subsequently produced, the Court deems fit to excuse the delay.

16. It is now contended that such a construction of the rule is opposed to the language and spirit of the material sections both of the Code of Civil Procedure and the Limitation Act. And in support of the contention the decision in Ramchandra v. Laxman (1906) 8 Bom. L.R. 892 is relied upon. That decision, in my opinion, has no bearing and cannot be cited as an authority on the question now before us. It deals with the construction of the words 'in accordance with law' in Article 179 of Schedule. II of the Limitation Act; and those words contemplate a certain elasticity and power of variation and mean that the law is to be followed not verbatim et literatim but substantially. The words in fact allow a certain degree of latitude in the observance of the law (see Thomas v. Kelly (1888) 13 App. Cas. 506). The question now before us is entirely different, turning as it does upon certain sections of the Civil Procedure Code and the Limitation Act with different wording.

17. Dealing first with the Code, Section 541, which applies to an appeal from an original decree, requires that such an appeal

"shall be accompanied by a copy of the decree appealed against and (unless the appellate Court dispenses therewith) of the judgment on which it is founded."

18. That is, an appeal is to be regarded as presented if it is tendered with the two copies specified in the section. Otherwise it cannot be said to be presented at all.

19. Having special regard to this essential condition laid down in the Code for the due presentation of an appeal, the Limitation Act, by Section 12, studiously prescribes that "the time requisite for obtaining a copy of the decree appealed against" and "the time requisite for obtaining a copy of the judgment on which it is founded " shall both be excluded "in computing the period of limitation prescribed for an appeal."

20. The necessary implication of this is that for the purposes of limitation an appeal is presented within time, if, being accompanied by copies of the decree appealed against and the judgment on which it is founded, it has been presented within the period resulting from the mode of computation specified.

21. Now, Section 587 of the Code makes Section 541 applicable to a second appeal as well. Besides, in Section 12 of the Limitation Act the term " appeal " is used so as to comprehend both "appeals from original decrees " and " appeals from appellate decrees." It follows from that, that the necessary implication in Section 12 of the Limitation Act abovementioned applying to both appeals without distinction, there is a due presentation of a second appeal if it is accompanied by copies of the decree and the judgment appealed against. The Limitation Act read with the Code of Civil Procedure requires no more in the case of such an appeal. It puts it on the same footing for the purposes of limitation as an appeal from an original decree. Had the intention of the Limitation Act been otherwise, had the Legislature meant that in the case of a second appeal the period of limitation must be computed by treating it as duly presented only when and if it is accompanied by copies of the decree and judgment of the first Court as well as by those of the second Court, there would have been express provision made for deduction of the time requisite for obtaining a copy of the decree and of the judgment of the first Court. Expressio unius est exclusio alterius.

22. To put it more shortly, the solution of the question before us depends on the intention of the Legislature as it is expressed or necessarily implied in the Limitation Act and that intention must be discovered from the words actually used, and, where they are ambiguous, from surrounding circumstances, including other laws in pari materia. The Code of Civil Procedure is one of such laws. Applying this test, it is plain that Section 12 of the Limitation Act, with which Section 541 of the Code of Civil Procedure, made applicable to a second appeal by section 587 of the same code, must be read, treats an appeal from an original decree and a second appeal as the same for the purposes of presentation within the time prescribed for it.

23. If that is so, no rule of this Court can add to or modify the conditions and limitations of the law laid down in the Limitation Act. It is true that the Court has the power of making certain rules given by Section 652 of the Code of Civil Procedure But those rules must be "consistent with " the Code. And there is no power given to frame a rule modifying; any rule or mode as to computation of limitation prescribed, expressly or by necessary implication, in the Limitation Act.

24. Enough and legitimate room is left for the operation of the rule now under discussion after excluding it as ultra vires for the purposes of the due presentation of a second appeal within the period prescribed by the Limitation Act. Under Rule 17, the Regis" trar is competent to refuse the admission of such an appeal to the register if it is not accompanied by all the copies required by Rule 25. Though the copies of a decree and judgment of the Court of first instance are not necessary for the purpose of the presentation of a second appeal within the period prescribed in the Limitation Act, they may be and very often are necessary for other purposes. For instance, they may be required for the purpose of correctly ascertaining the amount of Court fee leviable on a memorandum of second appeal; or they may be required for the purpose of determining whether the second appeal should be dismissed under Section 551 or admitted under Section 552 of the Code of Civil Procedure. Rule No. 25 must be regarded as providing for such contingencies and so far it is intra vires and obligatory. That being its scope, its operation must be limited to such purposes.

25. On these grounds I am of opinion that the rule must be made absolute.

Heaton, J.

26. I agree in the conlusion arrived at.

Knight, J.

27. I concur.