S.A Gaffoor v. Ayesha Begum

J.C Shah, J.:— In proceedings before the High Court of Mysore under Sections 155, 397 and 398 of the Companies Act, 1956, Narayan Pai, J. by order dated 27-9-1968 framed a scheme for management of the affairs of Azad Commercial Corporation and Chit Fund (P) Ltd., and passed certain consequential orders. Feeling aggrieved by that order S.A Gaffoor (hereinafter called “the appellant”) applied on 28-9-1968 for certified copies of the orders. The copies were made ready and were delivered on 16-10-1968.

2. Appeals against the orders were filed before the Division Bench on 26-11-1968. The appellant also applied for condonation of delay in filing the appeals. The High Court rejected the applications. Against the orders passed by the High Court two special leave petitions were filed and the appeal arising from one out of those petitions is now before us.

3. Under Article 117 of the Limitation Act, 1963 the period prescribed for filing an appeal against the judgment of a Single Judge to a Division Bench is 30 days. Before the High Court, in the applications for condonation of delay, two grounds were set up, (1) that the appellant bona fide believed that he could file an appeal within 60 days from the date of the judgment of Narayan Pai, J.; (2) that the time required for obtaining certified copies was liable to be excluded. The High Court rejected the applications observing that according to the rules of the High Court a memorandum of appeal against the judgment of a Single Judge not being required to be accompanied by a certified copy of the judgment or order appealed from the time taken for obtaining certified copy could not be excluded under Section 12 of the Limitation Act.

4. The High Court apparently did not consider whether the appellant bona fide believed, as he claimed, that the period of limitation for filing an appeal from the judgment of a Single Judge to a Division Bench was 60 days and whether that belief constituted sufficient ground for condonation of delay. The High Court merely proceeded to dispose of the appeals on the ground that the time taken for obtaining the certified copies could not be allowed in computing the period of limitation.

5. The High Court was in error in holding that the time required for obtaining a certified copy which was not required to be filed with the memorandum of appeal could not be allowed. In Collector of Customs v. Best & Co. AIR 1966 SC 1713, 1966 Supp SCR 46 this Court ruled that even if the rules do not require that a certified copy shall be filed with a memorandum of appeal, if time is taken by a party to obtain the certified copy of a judgment or decree or both, the time is liable to be excluded. But the error into which the High Court fell has no practical significance. Even if the time taken (nineteen days) for obtaining the certified copy is allowed the appeals were not within time.

6. It was necessary to determine whether the appellant believed that the period of limitation for filing the appeals was 60 days and not 30 days, and that such belief was entertained bona fide and such belief constituted sufficient cause within the meaning of Section 5 of the Limitation Act. Since the High Court has not considered the question whether the appellant bona fide believed that he could file an appeal within 60 days from the date of the judgment and if such belief was entertained whether such belief constituted sufficient cause within the meaning of Section 5 of the Limitation Act, we are constrained to set aside the order passed by the High Court and to remand the case for being dealt with and disposed of according to law. There will be no order as to costs.

7. In Special Leave Petition (Civil) No. 2373 of 1969 filed by the same appellant we grant special leave. Mr. Datar, appearing on behalf of Respondent 1 in Civil Appeal No. 2406 of 1969 waives notice in this appeal. Since the point arising in this appeal out of special leave is the same, we allow this appeal and pass the same order as we have passed in Civil Appeal No. 2406 of 1969. There will be no order as to costs in this appeal.