Om Prakash v. Vipin Kumar Gupta

(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ?

JUDGMENT

ARUNA SURESH, J. (Oral) CM APPL.1395/2010 (exemption) Exemption allowed subject to all just exceptions Application stands disposed of. RSA 14/2010 and CM APPL.1394/2010 (stay)

1. Respondent Vipin Kumar Gupta as Proprietor of M/s. Jeevan Tours 2010:DHC:439 & Travels filed a suit bearing No.66/2009 under the provisions of Order 37 CPC for recovery of Rs.65,000/- in February, 2009. Application of the appellant for leave to defend was dismissed by the trial court and a decree was passed in favour of the Respondent vide judgment and decree dated 01.07.2009. The said judgment and decree was challenged by the appellant in RCA No.59/2009. The said appeal was dismissed by the appellate court with the observation that the same was barred by period of limitation. Aggrieved by the said order of the appellate court, the second appeal has been preferred.

2. Mr. Harish Chand Sharma, learned counsel for the appellant has submitted that the appellate court did not appreciate the reasons for delay in filing the appeal and also failed to consider the challenge to the judgment and decree of the trial court on merits and, therefore, substantial question of law is required to be formulated in this case.

3. I find no force in the submissions of the learned counsel for the appellant. The Appellate Court keeping in mind the provisions contained under Section 9 and 12 of the Limitation Act and while giving correct interpretation to the same, concluded that the appeal was barred by period of limitation and he accordingly dismissed the appeal.

4. Period of limitation for filing an appeal before the District Judge/ Additional District Judge, as the case may be, is 30 days from the date of the pronouncement of the judgment. However, the day on which the judgment is pronounced is to be excluded while computing the period of limitation.

5. Appeal was filed by the appellant on 18.8.2009. Appellant applied for certified copy of the judgment and decree of the trial court on 1st August, 2009. After excluding the day of the pronouncement of the judgment, 30 days period for filing an appeal expired on 31.07.2009. Appellant, therefore, applied for certified copy after the expiry of period of limitation. Once the period of limitation started running against him, by virtue of Section 9 of the Limitation Act, nothing could stop running of period of the limitation against the appellant. Since appellant applied for certified copy of the judgment and decree after the expiry of limitation, any time taken for obtaining the certified copy is of no consequence for computing the period of limitation of 30 days against the appellant.

6. Even one days delay, under the circumstances, was fatal to the appellant. Besides, no reason had been assigned in the application for condonation of delay in filing an application for certified copy of the impugned judgment and decree. The only ground made out in the application was knowledge of the appellant about the judgment and decree of the court. The appellate court noted that counsel for the appellant was present in the court when the judgment was pronounced. Therefore, appellant had the knowledge of the judgment and decree on 1st July, 2009 itself.

7. Under these circumstances, I find no infirmity or illegality in the order of the appellate court in appreciation of the provisions contained under Section 9 and 12 of the Limitation Act. No substantial question of law is required to be formulated in view of the settled principle of law.

8. Hence, appeal being without merits is hereby dismissed.

JUDGE JANUARY 25, 2010 vk