Jyoti Malhotra vs Kewal Kishore Malhotra
1982 Latest Caselaw 55 Del

JUDGMENT

Avadh Behari Rohatgi, J.

(1) At the conclusion of the hearing we announced the order We allowed the appeal and set aside the judgment of the learned single judge Now we give our reasons.

(2) This is a wife's appeal from the order of the learned single judge dated November 19, 1981. The husband sued for divorce in the court of the Additional District Judge. He granted a decree of divorce under the Special Marriage Act on 24.3.1981 to the husband against the wife. The wife brought an appeal in the High Court. Before the learned single judge the husband raised the question of limitation. The wife made an application for condensation of delay in filing the appeal. The learned judge held that the appeal was barred by time and that no ground had been shown to him for condensation of delay. He rejected the application under section 5 of the Limitation Act and dismissed the appeal as time barred.

(3) The dates are important in this case. The Additional District Judge granted the decree of divorce on 24.3.1981. The wife made an application for a certified copy of the judgment on the very next day, that is, 25.3.1981. The certified copy was ready on 14.4.1981. The wife took the certified copy of the judgment. On 23.4.1981 she made an application for the certified copy of the decree. The certified copy of the decree was ready on 16.5.1981. On 21.5.1981 the wife filed the appeal in the High Court.

(4) Admittedly if the period spent in obtaining the certified copy of the decree from 234.1981 to 1651981 is excluded the appeal is within time. The only question is whether this period which the wife spent in obtaining the certified copy of the decree after having obtained the copy of the judgment, can be excluded, in our opinion, she is entitled to exclude this time which she spent in obtaining the certified copy of the decree from 23.4.1981 to 16.51981. The law on this subject is contained in section 12 of the Limitation Act. As long ago as 1928 the Judicial Committee of the Privy Council held that the provisions of section 12(2) would apply even though the copy of the decree is not required to be filed along with the memorandum of appeal. Even when, by a rule of the High Court, a memorandum of appeal need not be accompanied by the copy of the decree, the Privy Council held that the time requisite for obtaining the judgment and decree is to be excluded from computation (See J.N. Surly v. T.S. Chettyar Air 1928 Pc 103).

(5) Counsel for the husband argued that the time spent in obtaining the certified copy of the decree should not be excluded in this case for two reasons. Firstly, he said because the certified copy of the decree is not required to be filed along with the memorandum of appeal. Secondly, he said because by section 34(4) of the Special Marriage Act it is provided that "In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties". We cannot accept this submission. The reason is that there is no provision in the Limitation Act which says that if the court passing the decree gives a copy thereof to the party then he shall not be entitled to apply for the certified copy of the decree and further that he shall not be entitled to exclude the period spent in obtaining the certified copy of the decree. The Supreme Court in S.T. Commr. U.P. v. MD. & Sons has clearly laid down that the period spent in obtaining the certified copy of the judgment and the decree must be excluded from computation under section 12 of the Limitation Act, even if the court in which the appeal is filed requires only one and not the other.

(6) In Shri Chmder Dev Chadha v. Smt. Rani Bala. a division bench of this court to which one of us was a party (Avadh Behari Rohatgi, J.) has held that section 12(2) of the Limitation Act 1963 applied to appeals under the Hindu Marriage Act and therefore the time requisite for obtaining a copy of the decree or order applied from shall be excluded in computing the period of limitation. This principle, in our opinion, equally applies to the Special Marriage Act. In this case the further question that has arisen is whether the wife is entitled to exclude the period spent in obtaining the certified copy of the decree after she had obtained the certified copy of the judgment, to this our answer is that she is entitled to exclude the period she spent though separately, for obtaining the certified copies of the judgment and the decree. The only thing is that before the time for filing the appeal runs out the wife must run to the copying agency for the certified copy of the decree if she has not applied for the same at the same time she applied for the certified copy of the judgment. If she applied for the certified copy of the decree after the expiry of the period of limitation prescribed for filing the appeal, she will not have the benefit of exclusion of time spent in obtaining the certified copy of the decree.

(7) Counsel for the husband referred us to Mool Raj v. Niadar Mal, ` in support of his contention that the period spent in obtaining the certified copy of the decree cannot be allowed. This ruling is not good law after the decision of the Privy Council in J.N. Surly v. T.S. Chattyar which set at rest the conflict in the decisions of the High Courts in India on this subject.

(8) For these reasons the appeal is allowed. The order of the learned single judge dated November 19, 1981 is set aside. We held that the appeal is within time. The matter is remitted to the learned Judge for decision of the appeal on merits.