M. Sharma, J.@mdashThis appeal has been preferred by the Appellant against the judgment and decree dated 1.7.86 passed by the Assistant
District Judge No. 2, Kamrup at Guwahati in Title Appeal No. 10 of 1983 dismissing the same and affirming the judgment and decree dated
30.3.83 passed by the Munsiff at Gauhati in Title Suit No. 170 of 1980.
2. The only point for consideration in this Second Appeal is whether the learned lower appellate court was right in rejecting the appeal on the
ground of limitation.
3. The present Appellant as Plaintiff filed a suit claiming that he had purchased the suit land measuring 1 Bigha 4 Kat has 19 leachss covered by
Dag No. 54 of K.P. Patta No. 250 as described in the schedule of the plaint from the legal heirs of Late Badal Ali by registered deed on 2,12.68
for Rs. 400.00 and took over possession of the same. That mutation was also allowed in the name of the Plaintiff. The opposite parties having
failed in the mutation case got the suit land attached by initiating a proceeding u/s 145 Code of Criminal Procedure in which the trial court declared
possession of the suit land in favour of the opposite parties. Against this the revision Petitioner preferred revision before the Session Judge and the
same was rejected. Accordingly the Plaintiff/present Appellant filed a suit for declaration of right, title and interest of the Plaintiff over the suit land
and also for recovery and for delivery of khas and vacant possession of the suit land. The said suit was dismissed and against this the present
Appellant filed appeal before the lower appellate court and the lower appellate court dismissed the appeal on the ground of limitation and therefore
did not proceed to discuss the appeal on merits.
4. Mr. B. Ullah, learned Counsel for the Appellant submits that the learned lower appellate court was wrong in dismissing the appeal on the ground
of limitation as he failed to follow the provisions u/s 12 of the Limitation Act in computing the time in filing the appeal. Mr. Ullah further submits that
in the face of the appeal, it is alleged, there is 26 days delay in filing the appeal, that can not be sustainable on the ground that the appeal was filed
against the judgment and decree of the trial court and in that view of the matter limitation has to be computed under the provisions of Section 12(3)
of the Limitation Act. Section 12(1), (2) and (3) of the Limitation Act reads as follows:
12. Exclusion of time in legal proceedings - (1) In computing the period of limitations for any sail, appeal or application the day from which such
period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for and appeal or an application for leave to appeal or for revision or for review of a judgment the day on
which the judgment complained of was pronounced and the time requisute for obtaining a copy of the decree. sentence or order appealed from or
sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or Where an application is made for leave to appeal from a
decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
5. In support of his contention the learned Counsel referred the decision reported in AIR 1973 Gau 60 (v 60 c 18) (Imphai Bench), (Simla
Koaglui-Tengkhul v. Wangmazum Tengkhul). In this case his Lordship held that-
Before the Indian Limitation Act, 1963, was enacted there was a sharp difference of opinion amongst the different High Courts in regard to cases
when an application for a certified copy of the decree is made after the said decree is drawn up. In dealing with such cases, the Bombay, Calcutta
and Patna High Courts held that the period taken in drawing up of the decree would be part of the period requisite for obtaining the copy, while
other High Courts took a contrary view. The explanation given in Section 12 of the new limitation Act of 1963, appears to have settled the
difference amongst the High Courts about the inclusion or otherwise of the period of time taken by the court to prepare the decree before an
application for a copy thereof is made when such an application is filed after the preparation of the decree. At present, as required under the
explanation, the said period shall not be excluded that means, shall be included as time requisite for obtaining the copy.
6. I find sufficient force in the submission of the learned Counsel for the Appellant. It appears that the learned first appellate court mis-conceived
the provisions of the section, which he ought to have considered u/s 12 of the Limitation Act, This section provides that for the purpose of
computing the period of limitation the time requisite for obtaining a copy of the decree shall be excluded. Sub-section (1) and (2) and Sub-section
(4) of Section 12 of the Limitation Act provides that for the purpose of computing the period of limitation, the time taken by the court to prepare
the decree before an application for a copy (sic) made shall not be excluded, i.e. shall be included as time requisite for obtaining the copy. The first
appellate court was wrong in not considering this aspect of the appeal u/s 12 of the Limitation Act. The further point agitated by the learned
Counsel for the Appellant is that the materials on records shows that the office of the appellate court accepted the memorandum of appeal finding it
complete under Order 41 and accepted it within time. The learned Counsel has submitted that as the office accepted the appeal within time, the
Appellant was under the impression that the appeal is regular and therefore the Appellant need not file condenation petition for condoning the
delay, more so, when the appeal is within time u/s 12 of the limitation Act. In support of his contention the learned Counsel referred the decision
reported in Udai Bhan Gupta Vs. Hari Shankar Bansal and Others, and also Sastri Yagnapurushadji and Others Vs. Muldas Bhudardas Vaishya
and Another, In both these cases the ratio enunciated by the court was that technically, it may be conceded that the memorandum of appeal
presented may suffer from infirmity for some reason. Even so, when the memorandum of appeal is accepted by the office of the court, the office
recorded the presentation of the appeal to be proper, the appeal is accepted as correct and in that case the presentation of the appeal is accepted
to be proper and when finally come up for hearing and some irregularity such as limitation has come, the Appellant must be given opportunity to
explain the delay or any irregularity. In the case of Sastri Yagnapurushadji and Others Vs. Muldas Bhudardas Vaishya and Another, the Apex
court held that the failure of the of the Registry to invite the attention of the authority concerned to the irregularity committed in the presentation of
the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the Appellant as does in this case.
7. In that view of the matter the irregularity has to he detected by the office at the time of filing of the appeal and once the appeal is accepted as
regular and if some irregularity is found at the time of hearing of the appeal, the concerned party must be given opportunity to explain such
irregularity. In this instant case, apparently the Appellant was not given chance and therefore it suffers the illegality and infirmity on the part of the
lower appellate court.
8. In view of my above discussion I find that this case is required to be remanded so that the first appellate court can decide the case on merit. We
can not avoid the situation that the case was filed in 1986 and since then it was pending before this Court. But when the vital point of law was not
entertained by the court below there is no other way but to remand the appeal to decide it afresh on merit. Accordingly I do so. The first Appellant
court is directed to dispose of the appeal on merit within a period of 2 months from the date of receipt of this judgment. Office is directed to send
back the records to the First Appellate court immediately to expedite the hearing of the appeal.
9. In the result the appeal is allowed and the impugned judgment and decree is set-aside. No costs.