Delhi High Court
Barkat Ram vs Ran Vir Singh Mathur on 25 October, 2010
Author: Indermeet Kaur
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 25.10.2010
+ R.S.A.No.93/2001
BARKAT RAM ...........Appellant
Through: Mr.I.C.Kumar, Advocate.
Versus
RAN VIR SINGH MATHUR ..........Respondent
Through: Mr.P.S.Vats & Mr.Manish Vats,
Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.(Oral)
1. This appeal has been directed against the impugned
judgment dated 19.12.2000 which had dismissed the appeal of the
appellant/plaintiff on the ground of limitation; it was held that the
appeal is barred by time by a period of 3 days. This judgment is
the subject matter of a second appeal before this court.
2. Perusal of the record shows that the appeal is yet to be
admitted; substantial question of law has not yet been formulated;
the matter has however been shown on the regular board. The
counsel for the appellant has pointed out that a substantial
question of law has arisen as the impugned judgment has recorded
incorrect findings which are perverse and against the evidence on
record; the evidence clearly establishes that the appeal was filed
before the first appellate court in time; the first appellate court has
non-suited the appellant/plaintiff only on the ground of limitation; a
RSA No.93/2001 Page 1 of 4
serious and grave prejudice has been suffered by the appellant as
he has lost his right of first appeal on a perverse finding.
3. A substantial question of law has accordingly arisen which
reads as follows:
"Whether the finding in the impugned judgment
dated 19.12.2000 dismissing the appeal on the
ground of limitation is a perverse finding? If so, its
effect?"
4. Arguments have been addressed at length by both parties.
5. The trial court judgment had been delivered on 22.9.1997.
This was in a suit for possession. After a detailed finding the suit of
the plaintiff had been dismissed. The record of the first appellate
court shows that the certified copy of the impugned judgment i.e.
the judgment dated 22.9.1997 had been prepared on 21.10.1997.
This is also the categorical finding given by the first appellate court
in the impugned judgment. The record also shows that this appeal
was filed on 21.11.1997 in the court of Senior Civil Judge.
Thereafter it was assigned to the concerned court and taken up on
26.11.1997. However, the date of filing remained unchanged.
Appeal was filed on 21.11.1997 and was well within the period of
limitation. Record clearly shows that the appeal was not time
barred; it could not have been dismissed on this short ground.
6. The impugned judgment has correctly recorded that the
certified copy of the judgment was delivered on 21.10.1997 but has
incorrectly recorded that the appeal was filed on 26.11.1997; the
record at page 46 of the appeal book (Annexure-C) clearly
negatives this position. Appeal was within time.
RSA No.93/2001 Page 2 of 4
7. The contention of the learned counsel for the respondent is
that the provisions of Section 12 of Indian Limitation Act, 1963
which allows for exclusion of time in legal proceedings could not
have been made available to the appellant as the appellant had
applied for the certified copy of the judgment on 10.9.1997 when
the judgment had not even been delivered; the judgment was
delivered on 22.9.1997. There is no doubt that the date mentioned
in the application for the certified copy has been noted as
10.9.1997. Explanation furnished by the counsel for the appellant
on this count is that arguments had been concluded before the trial
court on 3.9.1997 and the matter was listed for judgment on
15.9.1997 on which date since the judge was on leave the next date
was fixed for 22.9.1997 on which date the judgment was finally
pronounced. It is submitted that the certified copy of the judgment
was applied on 10.9.1997 itself as the arguments already stood
concluded. This position is evidenced from the record. On
3.9.1997, the arguments were finally concluded in the matter and
the matter was reserved for judgment.
8. Section 12 of the Limitation Act clearly stipulates that the
limitation for filing an appeal commences from the date of
judgment; "time requisite" as contained in Section 12 (2) is the
period spent in obtaining the certified copy of the judgment after
having applied for it till the time it is delivered. The information
available on the record clearly shows that the certified copy of the
judgment was delivered on 21.10.1997. This is also the contention
of both the parties. The impugned judgment has recorded
irrelevant paragraphs going into the alleged callous attitude of the
copying agency in having delivered the certified copy of the
RSA No.93/2001 Page 3 of 4
impugned judgment in advance; certified copy of the judgment was
not delivered before 21.10.1997.
9. The appellant/plaintiff has lost a substantive right in not
having been heard on merits. This cannot be taken to lightly.
Findings in the impugned judgment are perverse and are liable to
be set aside. The remedial action is to send back the matter for a
re-appreciation on the merits of the appeal by the first appellate
court.
10. Appeal is allowed. The matter is remanded back to the
District & Sessions Judge, Tis Hazari Courts, Delhi who will assign
it to the concerned court i.e. the first appellate court for hearing
the appeal on its merits. The appeal was filed within time and now
has to be adjudicated on its merits. The parties are directed to
appear before the District & Sessions Judge, Tis Hazari Courts,
Delhi on 2.11.2010 at 10.30 a.m. for assigning the matter to the
concerned court.
INDERMEET KAUR, J.
OCTOBER 25, 2010.
rb
