Commissloner of Sales Tax, U.P. v. Madanlal Dan & Sons, Bareilly
KHANNA, J. This is an appeal by special leave against the judgment
of Allahabad High Court whereby the High Court answered the follow
ing question referred to it under section 11 ( 3) of the UP Sales Tax Act
(hereinafter referred to as the Act) in favour of th<" dealer-respondent
and against the revenue :
"Whether the time taken by the dealer in obtaining an
other copy of the impugned appellate order could be excluded
for the purpose of limitation for filing revision under section
10( 1) of the UP Sales Tax Act when one copy of the appel
late order was served upon the dealer under the provisions 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 dis
posed of by the Assistant Commissioner (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 appel
late order which had been served upon him. On June 15, 1966 the res
pondent 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 (3-
B) of section 10 of the Act prescribes the period of limitation for filing
such a revision. According to that sub-section, such a revision applica
tion "shall be made within one year from the date of service of the order
complained of but the Revising authority may on proof of sufficient cause
entertain an application within a further period of six months." Question
was then agitated before the Judge (Revision) as to whether the revi
sion application was within time. The respondent claimed that under
section 12 (2) of the Limitation Act, he was entitled to exclude in com
puting 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 allq_wed the revision petition. At the instance of
the Commissioner of Sales Tax, the question reproduced above was re- ·
ferred to the High Court. The High Court, as stated above, answered the
question in favour of the respondent and in doing so placed reliance
upon the provision of section 12(2) of the Limitation 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 revi~ion or for re
view of a judgment, the day on which the judgment complained
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COMMISSIONER OF S.T., U.P v. MADAN LAL (Khanna, J.) 685
of was pronounced and the time requisite for obtaining a copy
of the decree, sentence or order appealed from or sought to be A
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 con
cerned in computing the period of limitation for filing revision applica-
tion. section 12(2) of the Indian Limitation Act, 1908 read as under : B
"(2) In computing the period of limitation prescribed for
an appeal, an application for leave to appeal and an applica-
tion for a review of judgment, the day on which the judgment
complained of was pronounced, and the time requisite for ob
taining a copy of the decree, sentence or order appealed 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 ab.
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 D
would also apply in computing the period of limitation 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 or
sub-section (2) of section 12 can .be invoked for computing the period
of limitation for the application for revision if ti.le other necessary con
ditions 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 provisions of sub-section (2) of section 12 of
t!ie 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 cs F
under :
"(2) Where any special or local law prescribes for any
suit, appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
s~tion 3 shall apply as if such period were the period pres
cnbed by the Schedule and for the purpose of determining any
period of limitation prescribed for any suit; appeal or applica
tion by any special or local law, the provisions contained in
sections 4 to 24 (i?clusive) 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 or doubt that the UP Sales Tax Act answer~
to the description of <;t special or local law. According to sub-section
(2) of section 29 of the Limitation Act, reproduced above, for the pur
p~e of determinin~ any period of limitation prescribed for any appli
cation by any special or local law, the provisions contained in section
• 686 SUPREME COURT REPORTS ll977] 1 S.C.R.
A 12(2), inter alia, shall apply in so far as and to the extent to which they
are not expressiy excluded by such special or local law. There is noth
ing in the LJP Sales Tax Act expressly excluding the application of sec
tion 12(2) of the Limitation Act for determining the period of limita
tion prescribed for revision application. The conclusion would, there
fore, follow that the provisions of section 12(2) of the Limitation Act
of 1963 can be relied upon in computing the period of limitation pres-
B cribed 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-responden:t to file a copy of the order of the Assistant Com
missioner along with the revision petition. As such, _according to the
learned counse~ the dealer-respondent could not exclude the time spent
in obtaining 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 tor obtaining copy of t)le 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 shall 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 re
viewed 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 in-
serted such a proviso in section 12 (2). It is also plain that without
procuring copy of the order of the Assistant Commissioner the res
pondent and his legal adviser would not have b~en in a position to
decide as to whether revision petition should be filed against that order
and if so, whai grounds should be taken in the revision petition.
The matter indeed is not res integra. In the case of J. N. Surly
v. T. S. Chettyar('), 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 memorandum of appeal need not be accompanied by a copy
of the decree, Lord Philli)l1ore speaking on behaIJ; of the Judicial Com
mittee 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 refer
ence 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 ohject in obtaining the two
documents, an argument might be offered that no time could
(1) 55 I.A. 161.
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COMMISSIONER OF S.T., U.P v. MADAN LAL (Khanna, J.) 687
be requisite for obtaining something n?t requisite .. But this,
is not so. The decree may be complicated, and lt may b.e
open to draw it up_ in two different ways, and th~ p~actt
tioner may well want to ·see it~ form be~ore attacking 1t by
his memorandum of appeal. As to the 1udgment, no dou~t
when the case does not come from up country, the practi
tioner will have heard it delivered, but he may not carry
all the points of a long j~dgment in his me~ory! and as Sir
John Eqge says, the Legislature may not wish htm to hurry
to make a decision till ho has well considered it."
Following the above decision, it was held by a Full Bench con
sisting of five Judges of the Lahore High Court in the case of The
Puniab Co-operative Bank Ltd., Lalwre v. The Official Liquidators,
The Pun;ab Cotton Press Co. Ltd.(') that even though under the Rules
and Orders of the High Court no copy of the judgment is req_t1ircd
to be filed along with the memorandum of appeal preferred under sec
tion 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 applicable to Letters Patent appeals under
clause 10 of the Letters Patent.
The above decision of the Judicial Committee was followed by thig
Court in the case of Additional Collector of Customs, Calcutta & Anr.
v. M/s. Best & Co.( 8 ) E
Similar view was expressed by this Court in the case of S. A. Gl!l.fjoor
v. Ayesha Beghum & Ors.( 4 )
It is plain that since 1928 when tho Judicial Committee decided the
case of Surty (supra), the view which has been consistently taken by
the Courts in India is that th~ provisions of section 12(2) of the Limi
tation Act would apply even though the copy mentioned in that sub
section is not required to be filed along with the memorandum of appeal.
The same position should hold good in case of revision petitions ever
since Limitation Act of'l963 camo into force.
Lastly, it has been argued that the copy of the order of. the Assist
ant Commissioner was served upon the respondent, and as such. i ·
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 upcr
the respondent was Jost by him. The loss of that copy necessitated
the filing of an application for obtaining another! copy of the order
of the Assistant Commissioner.
(I) (1941) ILR 22 Lahore Series 191.
(2) (1947) I.L.R. 26 Patna Series 157.
(3) A.I.R. 1966 S.C. 1713.
(4) CA No. 2406 of 1969 decided on August 18, 1970. ( \" Unreported judge-
ments of Supreme Court. 1970. Vol. 2. page 784). ·
688 SUPREME COURT REPORTS [1977) 1 S.C.R.
In the case of State of Uttrir Pradesh v. Maharaj Narain & Ors.(')
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 can
not be understood as the time absolutely necessary for obtaining the
copy of the orde( 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 case 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-respombr:t and against the
revenue. The appeal fails and is dismissed. As po one appeared •m
behalf of the respondent, we make no order as to costs.
M.R. Appeal dismissed.
(I) [1968] 2 S.C.R. 842.