Case Note & Summary
By special leave, the Additional Collector of Customs, Calcutta and another appealed to the Supreme Court against an order of the Calcutta High Court dated August 17, 1965, which dismissed their application for a certificate under Article 133 of the Constitution as barred by limitation. The dispute arose from a customs confiscation order: the respondent, an importer, obtained a licence in 1959 with a C.I.F. value limit, imported machinery in 1960, and after search and show-cause notices, the customs authorities passed an order on March 17, 1962 confiscating the goods and imposing penalties under Section 167(8) of the Sea Customs Act, 1878 read with Section 3(2) of the Imports and Exports Control Act, 1947. The respondent filed a writ petition under Article 226; a single judge dismissed it on September 2, 1963, but an appellate bench allowed the appeal on December 18, 1964 and directed the authorities to forbear from giving effect to the confiscation order. The customs authorities applied on December 19, 1964 for certified copies of the judgment and order. The certified copy of the judgment was furnished on January 18, 1965; they filed the application for leave to appeal on May 10, 1965 annexing only the judgment copy because the order copy was not ready. The certified copy of the order was furnished on July 17, 1965 but was not annexed. The High Court dismissed the application as time-barred, observing that if the order copy had been annexed, time would have been excluded, but because it was not annexed, the application filed on May 10, 1965 was beyond limitation. The Supreme Court considered whether the application was barred and whether Section 12(2) of the Limitation Act, 1908 entitled the appellants to exclude the time taken to obtain the certified copy of the order. The respondent argued that since the High Court rules permitted filing without a copy, the time was not requisite, and the prescribed form prohibited annexation; the appellants argued that Section 12(2) and (3) required unconditional exclusion. The Court held that on a plain reading of Section 12(2) and (3), the time for obtaining certified copies of both the judgment and the order must be excluded; the exclusion is a positive direction not dependent on whether procedural rules require annexing copies or whether copies were actually annexed; the object is to enable a party to consider the terms of the decree, judgment, and order before launching further proceedings. The Court applied Surty v. Chettyar and overruled Gangaram v. Beharilal and Abdul Aziz v. Jai Ram. It further held that the Calcutta High Court rules and prescribed form did not prohibit annexing a copy of the order or judgment. Accordingly, the Supreme Court allowed the appeal, set aside the High Court's order, and held that the application for a certificate was within time, granting relief to the customs authorities.
Headnote
A) Limitation Law - Computation of Limitation for Appeals - Exclusion of Time for Obtaining Certified Copies - Limitation Act, 1908, Section 12(2) and (3) - The time requisite for obtaining certified copies of both the judgment and the decree or order must be excluded in computing limitation for an appeal or application for leave to appeal, regardless of whether the rules require annexing such copies or whether the copies were actually annexed. The object is to enable the party to consider the terms before launching further proceedings. Held that the appellants were entitled to exclude the time taken for obtaining the certified copy of the order, and the High Court's order dismissing the application as time-barred was reversed. (Paras 1-8) B) Civil Procedure - Application for Certificate to Appeal to Supreme Court - High Court Rules and Prescribed Form - Limitation Act, 1908, Section 12(2); Constitution of India, Article 133 - The Calcutta High Court rules allowed filing an application for leave to appeal without annexing a certified copy of the judgment or order, and the prescribed form did not prohibit such annexure. The High Court's view that the time for obtaining the order copy could not be excluded because it was not annexed was erroneous. Held that the rule and form did not contain any mandatory direction against annexing a copy of the order or judgment. (Paras 1-8) C) Precedent - Binding Effect of Privy Council Decision - Interpretation of Section 12(2) - Limitation Act, 1908, Section 12(2) - The Court applied Surty v. Chettyar and overruled contrary decisions of the Bhopal and Himachal Pradesh High Courts which held that exclusion requires actual annexation of copies. Held that the Privy Council view governed. (Paras 1-8)
Issue of Consideration
Whether the application for leave to appeal was barred by limitation and whether the appellants were entitled under Section 12(2) of the Limitation Act to exclude the time taken for obtaining the certified copy of the order, even though the copy was not annexed to the application and the High Court rules did not require such annexure.
Final Decision
The Supreme Court held that the High Court erred in dismissing the application as time-barred; the appellants were entitled under Section 12(2) and (3) of the Limitation Act to exclude the time taken for obtaining certified copies of both judgment and order; the Calcutta High Court rules did not prohibit annexing a copy. Accordingly, the appeal was allowed and the High Court's order refusing the certificate was set aside.
Law Points
- Legal points not extracted
- Limitation Act
- 1908
- Section 12(2) and (3) require exclusion of time requisite for obtaining certified copies of judgment and decree/order while computing limitation for appeal or application for leave to appeal
- exclusion applies irrespective of whether procedural rules require annexing copies or whether copies actually annexed
- object is to enable party to consider terms before launching further proceeding
- High Court rules/form do not prohibit annexing copies
