PETITIONER:
COMMISSIONER OF SALES TAX, U.P.
Vs.
RESPONDENT:
MADAN LAL DAN & SONS, BAREILLY
DATE OF JUDGMENT22/09/1976
BENCH:
KHANNA, HANS RAJ
UNTWALIA, N.L.
SINGH, JASWANT
CITATION:
1977 AIR 523 1977 SCR (1) 683
1976 SCC (4) 464
ACT
Limitation Act, 1963, S. 12(2), whether applicable to
revision petitions filed under-section 10, U.P. Sales Tax
Act--Time spent in obtaining second copy, of impugned
order, whether to be excluded in computing limitation period
for filing revision petitions.
HEADNOTE
The Assistant Commissioner (Judicial) Sales Tax, Bareil-
ly, disposed of the respondents’ appeal made against an
order of the Sales Tax Officer. A copy of the order was
served on the respondent, but he lost it. Later, he ob-
tained another copy and filed a revision petition under-
sectiOn 10 of the U.P. Sales Tax Act. The same was opposed
as being time-barred, but the Judge (Revision) accepted the
respondent’s contention that under-section 12(2) of the
Limitation Act, he was entitled to exclude the time spent
in obtaining the second copy of the order, while computing
the limitation period. The question whether such exclusion
was permissible, was referred to the High Court which an-
swered in the affirmative.
The appellant contended that the U.P. Sales Tax Act
itself provided for a specific period of limitation; and
therefore the Limitation Act was not applicable, and also
that, a copy of the order was not required to be filed with
the revision petition, and so the time spent in obtaining a
second copy could not be excluded in computation of limita-
tion.
Dismissing the appeal the Court,
HELD: (1 ) Where the copy served upon a party is lost
and there is no alternative for that party except to apply
for a fresh copy in order to be in a position to file revi-
sion petition, the time spent in obtaining that copy would
necessarily have to be excluded under Section 12(2) of the
Limitation Act, 1963. State of Uttar Pradesh v. Maharaj
Narain & Ors. [1968] 2 SCR. 842 followed. [688 B--C]
(2) The provisions of Section 12(2) of the Limitation
Act would apply even though the copy mentioned in that Sub-
section is not required to be filed alongwith the Memorandum
of appeal. The same position should hold good in case of
revision petitions ever since Limitation Act of 1963 came
into force. 1686 B, D--687 FI
J.N. Surty v.T.S. Chettyar (55 IA 161), The Punjab
Co.operative Bank Ltd., Lahore v. The Official Liquidators,
the Punjab Cotton Press Co. Ltd. (1941) ILR 22 Lahore Series
191, MT. Lalitkuari v. Mahaprasad N. Singh (1947) ILR 26
Panta Series 157, Additional Collector of Customs, Calcutta
& Anr. v. M/s. Best & Co. (AIR 1966 SC 1713) S.A. Gaffoor
v. Ayesha Beghum & Ors. (C.A. 2406/1969 decided on 18-8-
1970 Unreported Judgment of Supreme Court, 1970 Vol. 2,
page 784) followed.
(3) For the purpose of determining any period of limitation
prescribed for any application by any special or local law,
the provisions contained in Section 12(2), inter alia. shall
apply in so far as, and to the extent to which they are not
expressly excluded by such special or local law, and there
is nothing in the U.P. Sales Tax Act expressly excluding the
application of Section 12(2) of the Limitation Act. [685 H,
686 A]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1726 of 1971.
(Appeal by Special Leave from the Judgment and Order
dated 20-4-1971 of the Allahabad High Court in Misc. Sales
Tax Reference No. 137 of 1970).12--1234SCI/76
684
S.C. Manchanda, M.V. Goswami and O.P. Rana, for the
Appellants.
The Judgment of the Court was delivered by
KHANNA, J. This is an appeal by special leave against
the judgment of Allahabad High Court whereby the High Court
answered the following question referred to it under section
11 ( 3 ) of the UP Sales Tax Act (hereinafter referred to as
the Act) in favour of the dealer-respondent and against the
revenue:
"Whether the time taken by the dealer in
obtaining another copy of the impugned appellate
order could be excluded for the purpose of limita-
tion for filing revision under section 10 (1 ) of
the UP Sales Tax Act when one copy of the appellate
order was served upon the dealer under the provi-
sions of the Act ?"
The matter relates to the assessment year 1960-61. An
appeal filed by the respondent against the order of the
Sales Tax Officer was disposed of by the Assistant Commis-
sioner (Judicial) Sales Tax, Bareilly. The copy of the
appellate order was served on the dealer respondent on
August 2, 1965. The respondent, it appears, lost the copy of
the appellate order which had been served upon him. On June
15, 1966 the respondent made an application for obtaining
another copy of the above order. The copy was ready on
August 17, 1967 and was delivered to the respondent on the
following day, i.e. August 18, 1967. Revision under section
10 of the Act was thereafter filed by the respondent before
the Judge (Revision) Sales Tax on September 9, 1967. Sub-
section (3B) of section 10 of the Act prescribes the period
of limitation for filing such a revision. According to that
sub-section, such a revision application "shall be made
within one year from the date of service of the order com-
plained of but the Revising authority may on proof of suffi-
cient cause entertain an application within a further period
of six months." Question was then agitated before the Judge
(Revision) as to whether the revision application was within
time. The respondent claimed that under section 12(2) of
the Limitation Act, he was entitled to excluded in computing
the period of limitation for filing the revision, the time
spent for obtaining a copy of the appellate order. This
contention was accepted by the Judge (Revision). He also
observed that the fact that the said copy was not required
to be filed along with the revision petition would not stand
in the way of the respondent relying upon section 12(2) of
the Limitation Act. The Judge (Revision) thereafter dealt
with the merits of the case and partly allowed the revision
petition. At the instance of the Commissioner of Sales Tax,
the question reproduced above was referred to the High
Court. The High Court, as stated above, answered the ques-
tion in favour of the respondent and in doing so placed
reliance upon the provision of section 12(2) of the Limita-
tion Act,1963 (Act 36 of 1963) which reads as under:
"(2) In computing the period of limitation
for an appeal or an application for leave to appeal
or for revision or for review of a judgment, the
day on which the judgment complained
685
of was pronounced and the time requisite for ob-
taining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed
shall be excluded."
It may be stated that the language of section 12(2)
of the Act of 1963 is in variance with that of
section 12(2) of the Indian Limitation Act,1908
(Act 9 of 1908) so far as the applicability of
section 12(2) is concerned in computing the period
of limitation for filing revision application.
Section 12(2) of the Indian Limitation Act, 1908
read as under:
"(2) In computing the period of limitation
prescribed for an appeal, an application for leave
to appeal and an application for a review of judg-
ment, the day on which the judgment complained of
was pronounced, and the time requisite for obtain-
ing a copy of the decree, sentence or order ap-
pealed from or sought to be reviewed, shall be
excluded."
Bare perusal of sub-section (2) of section 12 of
the Act of 1908 would show that it did not deal
with the period of limitation prescribed for an
application for revision. As against that, the
language of sub-section (2) of section 12 of .the
Act of 1963 makes it manifest that its provisions
would also apply in computing the period of limita-
tion for application for revision. There can,
therefore, be no manner of doubt that in a case
like the present which is governed by the Act of
1963, the provisions of sub-section (2) of section
12 can be invoked for computing the period of
limitation for the application for revision if the
other necessary conditions are fulfilled.
It is, however, contended by Mr. Manchanda that
the UP Sales Tax Act constitutes a complete code in
itself and as that Act prescribes the period of
limitation for filing of revision petition, the
High Court was in error in relying upon the provi-
sions of sub-section (2) of section 12 of the
Limitation Act, 1963. This contention, in our
opinion, is wholly bereft of force.
Sub-section (2) of section 29 of the Limitation
Act, 1963 reads as under:
"(2) Where any special or local law pre-
scribes for any suit, appeal or application a
period of limitation different from the period
prescribed by the Schedule, the provisions of
section 3 shall apply as if such period were the
period prescribed by the Schedule and for the
purpose of determining any period of limitation
prescribed for any suit; appeal or application by
any special or local law, the provisions contained
in sections 4 to 24 (inclusive) shall apply only in
so far as, and to the extent to which, they are not
expressly excluded by such special or local law."
There can be no manner of doubt that the UP Sales Tax Act
answers to the description of a special or local law.
According to sub-section (2) of section 29 of the Limitation
Act, reproduced above, for the purpose of determining any
period of limitation prescribed for any application by any
special or local law, the provisions contained in section
686
12(2), inter alia, shall apply in so far as and to the
extent to which they are not expressly excluded by such
special or local law. There is nothing in the U.P Sales Tax
Act expressly excluding the application of section 12(2) of
the Limitation Act for determining the period of limitation
prescribed for revision application. The conclusion would,
therefore, follow that the provisions of section 12(2) of
the Limitation Act of 1963 can be relied upon in computing
the period of limitation prescribed for filing a revision
petition under section 10 of the UP Sales Tax Act.
It has been argued by Mr. Manchanda that it was not
essential for the dealer-respondent to file a copy of the
order of the Assistant Commissioner along with the revision
petition. As such, .according to the learned counsel, the
dealer-respondent could not exclude the time spent in ob-
taining the copy. This contention is equally devoid of
force. There is nothing in the language of section 12(2) of
the Limitation Act to justify the inference that the time
spent for obtaining copy of the order sought to be revised
can be excluded only if such a copy is required to be filed
along with the revision application. All that section 12(2)
states in this connection is that in computing the period of
limitation for a revision, the time requisite for obtaining
a copy of the order sought to be revised shah be excluded.
It would be impermissible to read in section 12(2) a proviso
that the time requisite for obtaining copy of the decree,
sentence or order appealed from or sought to be revised or
reviewed shall be excluded only if such copy has to be filed
alongwith the memorandum of appeal or application for leave
to appeal or for revision or for review of judgment, when
the legislature has not inserted such a proviso in section
12(2). It is also plain that without procuring copy of the
order of the Assistant Commissioner the respondent and his
legal adviser would not have been in a position to decide as
to whether revision petition should be filed against that
order and if so, what grounds should be taken in the revi-
sion petition.
The matter indeed is not res integra. In the case of
J.N.Surty v. T.S. Chettyar(1), the Judicial Committee
after .noticing the conflict in the decisions of the High
Courts held that section 12(2) of the Indian Limitation Act,
1908 applies even when by a rule of the High Court a memo-
randum of appeal need not be accompanied by a copy of the
decree, Lord Phillimore speaking on behalf of the Judicial
Committee observed:
"Their Lordships have now to return to the
grammatical construction of the Act, and they find
plain words directing that the time requisite for
obtaining the two documents is to be excluded from
computation. Sect. 12 makes no reference to the
Code of Civil Procedure or to any other Act. It
does not say when the time is to be excluded, but
simply enacts it as a positive direction.
If, indeed, it could be shown that in some
particular class of cases there could be no object
in obtaining the two documents, an argument might
be offered that no time could
(1) 55 I.A. 161.
687
be requisite for obtaining something not requisite.
But this, is not so. The decree may be complicat-
ed, and it may be open to draw it up in two differ-
ent ways, and the practitioner may well want to see
its form before attacking it by his memorandum of
appeal. As to the judgment, no doubt when the case
does not come from up country, the practitioner
will have heard it delivered, but he may not carry
all the points of a long judgment in his memory,
and as Sir John Edge says, the Legislature may not
wish him to hurry to make a decision till he has
well considered it."
Following the above decision, it was held by a Full
Bench consisting of five Judges of the Lahore High Court in
the case of The Punjab Co-operative Bank Ltd., Lahore v. The
Official Liquidators, The Punjab Cotton Press Co. Ltd. C)
that even though under the Rules and Orders of the High
Court no copy of the judgment is required to be filed along
with the memorandum of appeal preferred under section 202 of
the Indian Companies Act from an order of a single Judge,
the provisions of section 12 of the Indian Limitation Act
would be attracted. The provisions of section 12 were also
held to govern an appeal under Letters Patent.
A Full Bench of the Patna High Court in the case of
Mt. Lalitkuari v. Mahaprasad N. Singh(2) also held that the
provisions of section 12 of the Limitation Act were applica-
ble to Letters Patent appeals under clause 10 of the Letters
Patent.
The above decision of the Judicial Committee was
followed by this Court in the case of Additional Collector
of Customs, Calcutta & Anr. v. M/s. Best & Co.(3)
Similar view was expressed by this Court in the case
of S. A. Gaffoor v. Ayesha Beghum & Ors.(4)
It is plain that since 1928 when the Judicial Commit-
tee decided the case of Surty (supra), the view which has
been consistently taken by the Courts in India is that the:
provisions of section 12(2) of the Limitation Act would
apply even though the copy mentioned in that subsection is
not required to be filed along with the memorandum of ap-
peal. The same position should hold good in case of revision
petitions ever since Limitation Act of’1963 came into force.
Lastly, it has been argued that the copy of the order
of the Assistant Commissioner was served upon the respond-
ent, and as such,; was not necessary for the respondent to
apply for copy of the said order. In this respect we find
that the copy which was served upon the respondent was lost
by him. The loss of that copy necessitated the filing of
an application for obtaining another copy of the order of
the Assistant Commissioner.
(1) (1941) ILR 22 Lahore Series 191.
(2) (1947) I.L.R. 26 Patna Series 157. A.I.R. 1966
S.C. 1713.
(4) CA No. 2406 of 1969 decided on August 18, 1970.
( See Unreported judgements of Supreme Court. 1970. Vol. 2.
page 784).
688
In the case of State of Uttar Pradesh v. Maharaj Narain
& Ors.(1) the appellant obtained three copies of the order
appealed against by applying on three different dates for
the copy. The appellant filed along with the memorandum of
appeal that copy which had taken the maximum time for its
preparation and sought to exclude such maximum time in
computing the period of limitation for filing the appeal,
This Court, while holding the appeal to be within time,
observed that the expression time requisite in section 12(2)
of the Limitation Act cannot be understood as the time
absolutely necessary for obtaining the copy of the order and
that what is deductible under section 12(2) is not the
minimum time within which a copy of the order appealed
against could have been obtained. If that be the position of
law in a case where there was no allegation of the loss of
any copy, a fortiori it would follow that where as in the
present ease the copy served upon a party is lost and there
is no alternative for that party except to apply for a fresh
copy in order to be in a position to file revision petition,
the time spent in obtaining that copy would necessarily have
to be excluded under section 12(2) of the Limitation Act,
1963.
The High Court, in our opinion, correctly answered the
question referred to it in favour of the dealer-respondent
and against the revenue. The appeal fails and is dismissed.
As no one appeared on behalf of the respondent, we make no
order as to costs.
M.R. Appeal
dismissed.
(1) [1968] 2 S.C.R. 842.
689