C. M. App./254/2000 of Chogyal Miwang Wangchuk Namgyal Vs L.B.Chettri and Anr. on 5 March 2001

JUDGMENT

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The applicant has filed this application under section 5 of theLimitation Act for condonation of delay in filing the Civil Appeal (RFANo.35of2000)againsttherejectiop#plaintund;erordervIIRulellbeEtiffiae(a)(d) of the Code of Civil Procedure by the District Judge, SpecialDivision, Gangtok. `

2. The District Judge, Special Division, rejected.the plaint filed by the .appellant, on 7.2.2000 on the grounds that the plaint does not disclose cause '

Iof actic)n and the suit is barred by limitation. The rejection was challenged_by the applicant in Civil Revision No. 6/2000 on 8th May, 2000. TheIRevisidn was dismissed in limine on 20.9.2000 on the ground that the order:I:e:t;niget::::;££:tpar:c°eudniset°andde,C:::r:fit::e::pep:a:a]:;:ga::{Snes:tfs°unch2(;r)d::and not the Revision. Thereafter, on 23.10.2000, Regular First Appeal No.35 of 2000 was filed along with the application for condonation of delay.Alo+iththememoofappeal,acopyofthejudgmentdated722000wasalso filed. Certified copy of the decree was filed on 6.11.2000. ThecertifieTdcopy of the decree discloses that the application for the copy wasmade30.09.2000, the copy was ready for delivery on 3.11.2000 andthe Samewas delivered to the applicant on 4.11.2000.

3. The applicant has stated in his application for condonation of delaythat he filed the Civil Revision acting on legal advice and in view of theopinion expressed by this court that Appeal, and not Revision, lies he isfiling the appeal by way of "abundant caution". It is further stated that theapplicant has been pursuing the matter bona fide to challenge the rejectionof the plaint and if there has been any delay in filing the appeal, the same isdue to sufficient cause and, therefore, the delay may be condoned. Therespondents have, in their respective objections, pleaded that there is nosufficient cause for condonation of delay. Respondent No., 1 has pleadedthat the name and particulars of the person who had given the wrong legaladvice has not been disclosed and Shri T.B. Thapa who was conducting theRevision is a lawyer of more than twenty years' standing and he could not )^.-vyvv have given the wrong advice. Respondent No.1 has denied that such wronglegal advice was at all given to the applicant and has averred that theRevision was filed deliberately knowing the true legal position. It is furtherpleaded that the order of rejection of the plaint is itself a decree and it wasnot necessary to draw a separate decree and, in any case, appeal could befiled treating the last paragraph of the judgment as `decree'. It is alsopleaded that the fact that the application for certified copy was filed afterthe expiry of the period of limitation is irrelevant to the question ofcondonation of delay. Similar objections have .been filed by respondentNo. 2, State of Sikkim.

4. I have heard shri T.B. Thapa, Advocate on behalf of the applicant,Shri A. Moulik, Advocate for respondent No. 1 and Shri N.B. Khatiwada,Additional Advocate General on behalf of respondent No. 2.

5. Shri Thapa has submitted that the Revision petition was flled underthe wrong belief that a Revision lay and not an Appeal. On the otherhand, Shri Khatiwada and Shri Moulik have submitted that the baldstatement that the applicant had filed the Revision Petition on wrong legaladvice in the absence of any particulars, such as the name the lawyer whoallegedly gave wrong advice does not constitute sufficient cause. Theyhave further submitted that even after the dismissal of the Civil Revision on20.9.2000, the applicant spent a lot of time till 23.10.2000 in filing theappeal. It is further submitted that the fact that the decree was prepared on29.9.2000 after the expiry of the period of limitation has no relevance, since 1^ , 6-giv the appeal could be filed treating the last paragraph of the judgment asdecree, as he himself did by filing the appeal on 23.10.2000 without thecertified copy of the decree which copy was filed on 6.11.2000. It is alsosubmitted that absolutely no explanation has been given for the delay fi.omthe date of the dismissal of the Revision on 20.9.2000 till 29.9.2000 thedate on which application for the certified copy of the decree was filed.Shri N.B. Khatiwada has referred to Ranlal v. Rewa Coalflelds Ltd. AIR1962 SC 361, Partha Sarathy v. State of A.P. AIR 1966 SC 38 and UnitedCommercial Bank v. M.C. Shaw Bonded Warehouse AIR 1985 Cal. 445in support of his submission.

6. Ramlal v. Rewa coalfields Ltd. (Supra) has been cited in support ofthe submission that the proof of a sufflcient cause is a condition precedentfor the exercise of the discretionary jurisdiction vested in the court bySecion 5. If sufficient cause is not proved, nothing further has to be doneand then the application for condonation of delay has to be dismissed onthat ground alone. But if sufficient cause is shown, then the court has toenquire whether in its discretion it should condone the delay. In ParthaSarathy v. State of A.P. (Supra), the Supreme Court held that Section 12(2)of the Limitation Act+ excludes the time taken in getting the certified copyin the course of computation; it does not add to the period of limitation. Ithas no concern with any event anterior to the commencement of the periodof limitation or posterior to that period. The Supreme Court observed :

"(4) ................. For that reason, in computing theperiod of limitation the time taken for obtaining a certifiedcopy of the order is excluded. It excludes time in the course `^ ' `ryif vvwl of computation .: it does not add to the period of limitationany period earned earlier. In computing or calculating theperiod of limitation from a particular point the sub-sectionenables the exclusion of a time from that period caused by anevent that intervened between the commencement and thetermination of the said period. It has no concern with anyevents anterior to the, commencement of the period oflimitation or posterior to the said period."

7. In United Commercial Bank v. M.C. Shaw Bonded Warehouse(Supra), the Calcutta High Court held that no time limit is fixed for makingan application for a certified copy of the order or decree to be appealedagainst but if an application is made for obtaining a certified copy of theorder or decree for the proposed appeal within the period of limitationprescribed for preferring the appeal then the time requisite for obtaining acertified copy of the order or decree shall be excluded in computing theperiod of limitation for preferring the appeal. If the application for acertified copy is not made before the expiry of the period of limitationprescribed for preferring the appeal then the applicant is not entitled to thebenefit of deducting the time requisite for obtaining the certified copy ofthe order or the decree in the matter of computation of the period oflimitation for preferring the appeal against the order or decree. If theappellant has allowed the period for preferring the appeal against the orderof decree to run out he is not entitled to the benefit of Section 12 of theLimitation Act..

8. It is well established that the applicant praying for condonation ofdelay under section 5 must satisfy the court that he had sufficient cause fornot preferring the appeal within the perio-d of limitation. If the applicant +-, c*2AVu-/

fails to satisfy the Court about the existence of sufficient cause, theapplication has to be rejected. Further-more, section 12(2) do;s not extendthe period of limitation in. respect of the time taken in getting a certifiedcopy. It only permits the exclusion of such time in computing the period oflimitation. To claini exclusion, the applicant must have made applicationfor certified copy before the expiry of the period of limitation. Theforemost question requiring consideration, therefore, is whether theapplicant has been able to satisfy the court that he was prevented bysufficient cause from preferring the appeal within the period of linitation.The applicant has tried to show that he had sufficient cause till 20;9.2000the date on which the revision was dismissed by submitting that he hadbeen acting bona fide under legal advice. I see merit in the submissionmade by Shri Khatiwada that the mere bald statement that the petitioneracted under wrong legal advice is not enough in the absence of anyparticulars as to who tendered such legal advice, to satisfy the court aboutthe averment as to acting bona fide under wrong legal advice. In my view,a bare perusal of the definition of `decree' in section 2(2) CPC makes itmanifest that rejection of plaint amounts to decree with the consequencethat an Appeal and not a Revision would lie against such rejection. Further,there is not evch a whisp.er in the entire application to explain the delayfrom 20.9.2000 to 29.9.2000 when the application for certified copy ofdecree was made. As such, it is not possible to hold that there was anysufficient cause for not preferring the appeal between this period. The factthat the applicant chose to apply for a certified copy of the decree on29.9.200 after the expiry of the period of limitation is also of no help to the

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applicant in view of the legal position stated earlier. The fact that thelq ,q ,1Joo +decree was prepared by the learned trial Court on 2-9T9.2000 has also noEZL!relevance.

9. In the result, I hold that the applicant was not prevented by anysufficient cause for not preferring the appeal within the period of limitation.The application. for condonation of delay is rejected with costs assessed atRs. 2000/-payable to each of the respondents. The appeal, being barred bylimitation, is also dismissed.

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