M/s. Raghu Forwarding Agency & Anr. Vs. Union of India Ors.
EmailAppeal: Civil Appeal No. 5230 of 2002
(Arising out of SLP (C) 3266 of 2002)
(Arising out of SLP (C) 3266 of 2002)
Petitioner: M/s. Raghu Forwarding Agency & Anr.
Respondent: Union of India Ors.
Apeal: Civil Appeal No. 5230 of 2002
(Arising out of SLP (C) 3266 of 2002)
(Arising out of SLP (C) 3266 of 2002)
Judges: R.C. Lahoti & Brijesh Kumar, JJ.
Date of Judgment: Aug 23, 2002
Head Note:
Limitation/ Practice and Procedure
Limitation Act, 1963
Sections 12, 14, 5 – Condonation – Writ dismissed on 3.8.99 – Review sought on 3.9.99 – Dismissal on 7.12.2000 – Certified copy of orders dated 7.12.2000 applied on 12.12.2000 – Supplied on 3.1.2001 – Certified copy of order dated 3.8.99 applied on 2.12.2000 – Supplied on 16.1.2001 – Writ appeal filed on 17.1.2001 against both orders – If barred by time. Held that appeal filed against orders dated 7.12.2000 was certainly in time. So far as appeal against original order dated 3.8.99 is concerned, on facts and circumstances of case, too technical view should not have been taken. Delay condoned.
Held:
As against the impugned order dated 3rd August, 1999 the limitation for filing the appeal came to an end on 2nd September, 1999. The review was filed on 3rd September, 1999 which remained pending upto 7th December, 2000. In the meantime, on 2nd December, 2000 the appellant had applied for certified copy of the order dated 3rd August, 1999 which was ready and delivered on 16th January, 2001. If only the review application would have been filed on 2nd September, 1999 the entire period from 2nd September, 1999 to 16th January, 2001 would have been liable to be excluded from counting the period of limitation under section 5 read with section 14 and section 12 of the Limitation Act and then the appeal filed on 17th January, 2001 would have been within limitation. In the facts and circumstances of the case too technical a view of matter of limitation should not have been taken and the delay in filing the composite appeal against the main order dated 3rd August, 1999 as also the order dated 7th December, 2000 passed in review petition should have been condoned so as to enable the appeals being heard on merits. (Para 7)
JUDGEMENT:
ORDER
1. Leave granted.
2. A civil writ petition was filed by the appellant which came to be disposed of on merits on 3rd August, 1999. The relief sought for by the appellant was allowed in part. On 3rd September, 1999, the petitioner sought for a review of the order passed in writ petition. The review petition was dismissed on 7th December, 2000. An application for obtaining a certified copy of the order passed in review petition was made on 12th December, 2000. The certified copy was ready and delivered on 3rd January, 2001.
3. On 2nd December, 2000, the appellant had applied for certified copy of the order dated 3rd August, 1999, which was ready and delivered on 16th January, 2001.
4. On 17th January, 2001, the appellant filed a writ appeal. The memo of appeal shows it is a composite appeal filed against both the orders, that is, the order dated 3rd August, 1999, disposing of the main civil writ petition and the order dated 7th December, 2000 rejecting the appellants’ application for review. The application seeking condonation of delay in filing the appeals was also moved.
5. The division bench of the High Court did not go into the merits of the appeal. Treating the appeal to be against the original order dated 3rd August, 1999, the High Court formed an opinion that there was a delay of 461 days in filing the appeal which was not explained satisfactorily and, therefore, the application for condonation of delay was liable to be rejected. Consequent upon rejection of application for condonation of delay, the appeal itself was also dismissed without any adjudication on merits. A perusal of the order of the High Court shows a material fact having been overlooked and that is that the appeal was directed not only against the order dated 3rd August, 1999 but also against the order dated 7th December, 2000. It is pertinent to note that the review application was not dismissed by the High Court on the ground of delay or limitation it was dismissed on merits.
6. We have no doubt in holding that so far as the order dated 7th December, 2000 dismissing the application for review is concerned the appeal filed by the appellant was certainly within limitation. The limitation for filing the appeal is 30 days. The order in review petition was dated 7th December, 2000. The period between 12th December, 2000 and 3rd January, 2001 was the time requisite for obtaining certified copy of the order appealed against within the meaning of sub-section (2) of section 12 of Limitation Act. Excluding the time lost in obtaining the certified copy of the impugned order, the appeal filed on 17th December, 2001 was certainly within limitation. The appeal against the order dated 7th December, 2000 was not liable to be dismissed as barred by time.
7. As against the impugned order dated 3rd August, 1999 the limitation for filing the appeal came to an end on 2nd September, 1999. The review was filed on 3rd September, 1999 which remained pending upto 7th December, 2000. In the meantime, on 2nd December, 2000 the appellant had applied for certified copy of the order dated 3rd August, 1999 which was ready and delivered on 16th January, 2001. If only the review application would have been filed on 2nd September, 1999 the entire period from 2nd September, 1999 to 16th January, 2001 would have been liable to be excluded from counting the period of limitation under section 5 read with section 14 and section 12 of the Limitation Act and then the appeal filed on 17th January, 2001 would have been within limitation. We are of the opinion that in the facts and circumstances of the case too technical a view of matter of limitation should not have been taken and the delay in filing the composite appeal against the main order dated 3rd August, 1999 as also the order dated 7th December, 2000 passed in review petition should have been condoned so as to enable the appeals being heard on merits.
8. For the foregoing reasons, the appeal is allowed. The application filed by the appellant before the High Court seeking condonation of delay in filing the writ appeals is allowed. The delay in filing the appeals is condoned. The appeals before the High Court shall stand restored to file and shall be taken up for hearing. However, we make it clear that this order shall not be construed as expression of any opinion on the merits or maintainability of any of the appeals before the High Court which shall be heard and decided only thereat.
9. No order as to the costs.
1. Leave granted.
2. A civil writ petition was filed by the appellant which came to be disposed of on merits on 3rd August, 1999. The relief sought for by the appellant was allowed in part. On 3rd September, 1999, the petitioner sought for a review of the order passed in writ petition. The review petition was dismissed on 7th December, 2000. An application for obtaining a certified copy of the order passed in review petition was made on 12th December, 2000. The certified copy was ready and delivered on 3rd January, 2001.
3. On 2nd December, 2000, the appellant had applied for certified copy of the order dated 3rd August, 1999, which was ready and delivered on 16th January, 2001.
4. On 17th January, 2001, the appellant filed a writ appeal. The memo of appeal shows it is a composite appeal filed against both the orders, that is, the order dated 3rd August, 1999, disposing of the main civil writ petition and the order dated 7th December, 2000 rejecting the appellants’ application for review. The application seeking condonation of delay in filing the appeals was also moved.
5. The division bench of the High Court did not go into the merits of the appeal. Treating the appeal to be against the original order dated 3rd August, 1999, the High Court formed an opinion that there was a delay of 461 days in filing the appeal which was not explained satisfactorily and, therefore, the application for condonation of delay was liable to be rejected. Consequent upon rejection of application for condonation of delay, the appeal itself was also dismissed without any adjudication on merits. A perusal of the order of the High Court shows a material fact having been overlooked and that is that the appeal was directed not only against the order dated 3rd August, 1999 but also against the order dated 7th December, 2000. It is pertinent to note that the review application was not dismissed by the High Court on the ground of delay or limitation it was dismissed on merits.
6. We have no doubt in holding that so far as the order dated 7th December, 2000 dismissing the application for review is concerned the appeal filed by the appellant was certainly within limitation. The limitation for filing the appeal is 30 days. The order in review petition was dated 7th December, 2000. The period between 12th December, 2000 and 3rd January, 2001 was the time requisite for obtaining certified copy of the order appealed against within the meaning of sub-section (2) of section 12 of Limitation Act. Excluding the time lost in obtaining the certified copy of the impugned order, the appeal filed on 17th December, 2001 was certainly within limitation. The appeal against the order dated 7th December, 2000 was not liable to be dismissed as barred by time.
7. As against the impugned order dated 3rd August, 1999 the limitation for filing the appeal came to an end on 2nd September, 1999. The review was filed on 3rd September, 1999 which remained pending upto 7th December, 2000. In the meantime, on 2nd December, 2000 the appellant had applied for certified copy of the order dated 3rd August, 1999 which was ready and delivered on 16th January, 2001. If only the review application would have been filed on 2nd September, 1999 the entire period from 2nd September, 1999 to 16th January, 2001 would have been liable to be excluded from counting the period of limitation under section 5 read with section 14 and section 12 of the Limitation Act and then the appeal filed on 17th January, 2001 would have been within limitation. We are of the opinion that in the facts and circumstances of the case too technical a view of matter of limitation should not have been taken and the delay in filing the composite appeal against the main order dated 3rd August, 1999 as also the order dated 7th December, 2000 passed in review petition should have been condoned so as to enable the appeals being heard on merits.
8. For the foregoing reasons, the appeal is allowed. The application filed by the appellant before the High Court seeking condonation of delay in filing the writ appeals is allowed. The delay in filing the appeals is condoned. The appeals before the High Court shall stand restored to file and shall be taken up for hearing. However, we make it clear that this order shall not be construed as expression of any opinion on the merits or maintainability of any of the appeals before the High Court which shall be heard and decided only thereat.
9. No order as to the costs.
